Biden administration reinforces reproductive health obligations for payers, providers

The Biden administration’s healthcare regulators released new guidances, informational resources and other actions that reinforce payers' and hospitals’ federal obligations surrounding reproductive care and other emergency treatment.

The Monday announcements coincided with the 51st anniversary of the now-overturned Roe v. Wade. The actions address barriers to contraceptives and other reproductive services that have arisen since the Supreme Court's 2022 decision to reverse the 1973 Roe ruling, and, in some cases, will soon reach the same Supreme Court that struck down the landmark decision.

The first of these actions are new FAQ guidances from the Departments of Health and Human Services (HHS), Labor and Treasury for group health plans and insurers. They instruct the payers to ensure compliance with the Affordable Care Act’s requirement to cover contraception without cost-sharing.

“The new guidance comes in response to reports that many plans and issuers continue to impose barriers to contraceptive coverage, such as requiring patients to satisfy step therapy protocols, imposing unduly burdensome administrative requirements, or requiring cost-sharing for services that are integral to the application of the preventive service provided,” HHS wrote in a release.

HHS said it has also made updates to the Medicare Part D formulary clinical review process to include more types of birth control for plan year 2024 and beyond. The department is also instructing Medicare Administrative Contractors to increase awareness of intrauterine device coverage for certain conditions under Medicare Part B, and weighing whether more action is needed related to no cost sharing coverage of over-the-counter contraceptives.

“High-quality contraception improves health outcomes, advances economic stability and promotes overall well-being,” HHS Secretary Xavier Becerra wrote in a notice letter sent to plans and insurers. “We continue to encourage plans and issuers to ensure they are complying with the law.”

For hospitals and other providers, HHS and the Centers for Medicare & Medicaid Services (CMS) made moves to fortify its position on the Emergency Medical Treatment and Labor Act (EMTALA), which requires all Medicare hospitals to provide a baseline standard of emergency care. The clash between EMTALA and state bans on abortion services has recently led to escalating legal battles in Texas and Idaho.

“The Biden-Harris Administration remains focused on working with doctors, hospitals and patients to promote patient access to the care that they are entitled to under federal law and has long taken the position that this required emergency care can, in some circumstances, include abortion care,” CMS wrote in a Monday release. “The U.S. Department of Justice is currently defending that understanding before the Supreme Court.”

Per Monday’s announcement, the administration will be publishing informational resources on CMS’ website to inform individuals about EMTALA and how to submit a complaint if they are denied emergency care.

CMS said it will be partnering with hospital and provider associations to spread EMTALA obligation training materials and discuss best practices to ensure compliance. It will also be establishing a team of experts to better support hospitals in complying with EMTALA requirements.

“CMS remains committed to helping all individuals — including patients who are experiencing pregnancy loss and other pregnancy-related emergencies — have access to the emergency medical care required under federal law,” the agency wrote in the announcement.