July 30, 2024
Scott A. White
Commissioner of Insurance
State Corporation Commission
Bureau of Insurance
P.O. Box 1157
Richmond, Virginia 23218
Re: Contraceptive Coverage
Dear Commissioner White:
I write to urge the State Corporation Commission (SCC) and the Bureau of Insurance (BOI) to take action to ensure that Virginians have access to no-cost birth control, as required by federal law.
The federal Affordable Care Act (ACA) protects access to affordable birth control by requiring health insurance companies to cover the full-range of FDA-approved contraceptives without any patient cost-sharing. The federal Departments of Health and Human Services, Treasury, and Labor have issued guidance clarifying that insurance companies must cover, without cost-sharing, any FDA-approved, cleared, or granted contraceptive method that an individual and their doctor have determined is medically appropriate.[1] This includes brand-name forms of contraception that do not have a generic equivalent.[2]
Although the ACA has been law since 2014, recent studies show that a quarter of women are still paying at least part of the cost of their birth control out of pocket.[3] An October 2022 investigation by the federal House Oversight Committee found that, contrary to the ACA’s requirements, the majority of insurers still imposed cost-sharing requirements for certain birth control products or excluded them from coverage altogether.[4] The report also found that companies routinely denied patients’ requests for exceptions to cost-sharing requirements or coverage exclusions (denying an average of at least 40% of requests), and that the companies had inadequate exceptions processes that were not sufficiently accessible, expedient, or transparent.[5]
One of my constituents wrote to me recently to tell me that her insurance company, Anthem, was charging her a copay for her brand name birth control even though there was no generic alternative and her doctor had determined that the particular contraceptive was medically necessary. Her attempts to solve the issue with Anthem had been unsuccessful. I reached out to Anthem, and they then apologized, explaining that there had been a coding error. They issued her a refund for the copayments she had made over the preceding year and said that the problem would be fixed going forward. I made it clear to Anthem that I expect them to identify other policyholders who were erroneously charged a co-payment for ACA-covered birth control prescriptions and to offer refunds and ensure that such oversights are corrected going forward.
It is extremely troubling to me that my involvement was required to solve this situation for my constituent, and I am very concerned that there may be others like her who are being erroneously charged for their birth control, but who are not aware of their rights under the ACA. Particularly in light of the nationwide surveys regarding compliance with the ACA’s contraceptive mandate, it is very likely that Anthem is not the only insurer in the Commonwealth who has been non-compliant with this ACA requirement. This issue must be investigated and addressed. For many, cost-sharing is a barrier to access to contraceptives. Federal law mandates full coverage, and it is unacceptable that insurance companies are falling short.
Under Virginia code section 38.2-200, the SCC is “charged with the execution of all laws relating to insurance and insurers,” and all insurance companies transacting business in Virginia “are subject to inspection, supervision and regulation by the Commission.” Va. Code § 38.2-200(A). I strongly urge the SCC to do more with its investigatory, supervisory, and regulatory powers to ensure that insurance companies in Virginia are complying with federal mandates to provide no-cost birth control. To that end, please also provide answers to the following questions:
1. How do the SCC and the BOI monitor and oversee compliance with the ACA’s mandate for contraceptive coverage in Virginia? Is compliance with the ACA’s mandate considered when the BOI conducts its market conduct examinations?
2. Have the SCC and the BOI found any violations of the ACA’s mandate by health insurance companies in Virginia? If so, what have the SCC and the BOI done to address these violations?
3. Do the BOI’s market conduct staff receive any training on the requirements of the ACA’s mandate for no-cost contraceptive coverage, including training about the guidance issued by federal agencies and training about the federal requirements for exceptions processes? Do other BOI staff with oversight responsibilities receive such training?
4. Do the SCC and the BOI face any difficulties in attempting to oversee and enforce compliance with the ACA’s mandate in Virginia? If so, how could those difficulties be ameliorated?
5. Have the SCC and the BOI assessed the accessibility, expediency, and transparency of the processes by which Virginia’s insurance companies require patients to apply for exceptions to cost-sharing and coverage exclusion? What factors have the SCC and the BOI used to evaluate these processes? Have these processes been found to be acceptable? If not, what actions have the SCC and the BOI taken?
What steps, if any, have the SCC and the BOI taken to ensure that insurance companies are aware of the ACA’s mandates?
Please provide a written response to these inquiries by August 31, 2024. In addition to the written response, I would welcome a meeting with you and applicable staff to discuss these issues and any next steps.
I appreciate your attention to this issue. With reproductive rights under attack across the country, it is more important than ever to protect access to contraceptives. Virginia’s insurance companies must follow the law and fully cover birth control.
Sincerely,
