Murray, Sanders, Wyden, Baldwin Lead 44 Senators in Urging the Biden Administration to Require Insurers to Fully Cover Over-the-Counter Birth Control, With No Out-of-Pocket Costs or Prescription Barrier

Letter

Dear Secretary Becerra, Secretary Yellen, and Acting Secretary Su:

We urge you to improve health insurance coverage, both public and private, of the full range of
FDA-approved, granted, or cleared contraceptive products--including birth control that is
available over-the-counter (OTC) without requiring a prescription for coverage. Over 19 million
women live in counties with limited access to health care providers that offer comprehensive
contraceptive services,1 and about one-third of women who have received prescription
contraceptives have reported barriers to access.2 Expanding access to affordable coverage for
eligible, uninsured populations would improve the quality of contraceptive care that patients
receive.

In recent months, the Biden-Harris Administration has taken several major steps toward this
goal. First, on June 23, President Biden issued an executive order on "Strengthening Access to
Affordable, High-Quality Contraception and Family Planning Services,"3 which directed each of
your departments to take steps to improve access to contraception. Second, on July 13, the Food
and Drug Administration (FDA) approved the first-ever OTC birth control pill for sale in the
United States, a groundbreaking advancement in contraceptive access.4 Most recently, on
September 29, the Centers for Medicare and Medicaid Services (CMS), the Internal Revenue

1 https://powertodecide.org/what-we-do/contraceptive-deserts
2 https://www.kff.org/report-section/contraception-in-the-united-states-a-closer-look-at-experiences-preferencesand-coverage-findings/.
3 https://www.whitehouse.gov/briefing-room/presidential-actions/2023/06/23/executive-order-on-strengtheningaccess-to-affordable-high-quality-contraception-and-family-planning-services/
4 https://www.fda.gov/news-events/press-announcements/fda-approves-first-nonprescription-daily-oralcontraceptive

Service, and the Employee Benefit Services Administration (EBSA) issued a Request of
Information regarding the application of the preventive services requirements under section 2713
of the Public Health Service Act to OTC preventive services, including OTC contraceptive
products.5

We applaud these efforts and ask that you undertake additional actions to ensure coverage for
OTC contraceptive products--including the new OTC birth control pill once it becomes
available in 2024--without cost-sharing and without the need for a prescription in all federally
and state-regulated private health plans and federally and state-regulated and run coverage
programs.

The availability of safe and effective OTC birth control products has enormous potential to help
people overcome significant barriers to consistent contraceptive use, including the many
logistical and financial challenges to obtaining a prescription. The FDA's approval of Opill is a
milestone; however, for an OTC birth control pill to meet its potential and be truly accessible,
federal departments must ensure that it is covered without cost-sharing and without the need for
a prescription as a condition of coverage. Even prior to the FDA's approval of Opill, several
states have expanded access to OTC contraceptives and other lifesaving ACA preventive
services to ensure that patients continue to receive quality care.6 Additional training and billing
guidance for pharmacists and other health care providers would support state efforts to expand
access to covered ACA preventive services like OTC contraceptives.

Currently, existing Frequently Asked Questions (FAQ) guidance on the Affordable Care Act's
(ACA) contraceptive coverage requirement from the Departments of Labor, Health and Human
Services, and Treasury ("tri-departments") allows federally and state-regulated private health
plans to require a prescription for OTC contraceptives as a condition of coverage without cost
sharing. This significantly reduces the advantages to consumers of an OTC product.7 To expand
access to affordable contraception, we urge the tri-departments to issue new guidance that
reflects current HRSA guidelines and clarifies that federally and state-regulated private health
plans must cover OTC contraceptive products without cost-sharing, including when purchased
without a prescription. We request that you do this as soon as possible and encourage the Federal
Employees Health Benefits (FEHB) Program to adopt parallel changes for the next plan year.

In addition to new guidance, your departments may need to take one or more discrete steps as
soon as possible to:

 Cover the new OTC birth control pill and other OTC contraceptives by adding it to an
existing coverage requirement and/or formulary;
 Eliminate any otherwise-required cost-sharing and prior authorization for OTC
contraceptives;
 Eliminate any prescription requirement for OTC contraceptive coverage;

5 https://www.cms.gov/cciio/resources/regulations-and-guidance/downloads/cms-9891-nc.pdf
6 https://powertodecide.org/what-we-do/information/resource-library/state-actions-expand-contraceptive-coverage
7 https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-54.pdf

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 Work with providers, pharmacy chains, health plans, and other stakeholders to make
coverage for OTC contraceptives function as smoothly as possible at pharmacies and via
mail order;
 Provide notice to beneficiaries, providers, and other stakeholders about any changes to
coverage, as well as information about how to navigate and facilitate coverage of OTC
contraceptives without a prescription;
 Provide guidance to encourage state Medicaid programs to cover OTC contraceptives
without a prescription for Medicaid beneficiaries; and
 Provide guidance to pharmacies, health care providers, and insurers to improve claims
processing and reimbursement for OTC contraceptives.

These steps would be in line with the goals and directives of the June 2023 executive order,
including its directive to "promote increased access to affordable over-the-counter contraception,
including emergency contraception."8

We appreciate your ongoing commitment to these goals for improving coverage of and access to
the full range of contraceptives, including OTC contraception, and look forward to continuing to
work together to achieve them. Given the increased need for access to contraception in the wake
of the Dobbs decision, this issue is incredibly timely and important. Thank you in advance for
considering this request.

Sincerely,

Source