Publication

15 January 2025

Biden Administration Rescinds Proposal for Mandatory Coverage of Over-the-Counter Contraceptives

On January 13, 2025, in a recent policy reversal, the Departments of the Treasury, Labor, and Health and Human Services (collectively, the “Departments”) rescinded proposed regulations related to contraceptive coverage.  The proposed regulations, issued on October 28, 2024, would have mandated non-grandfathered group health plans to cover over-the-counter (“OTC”) contraceptives without cost-sharing and without a prescription.  Specifically, the rescinded proposed regulations would have required first-dollar coverage of daily birth control, emergency contraceptives, and male condoms, among other contraceptive drugs or devices.  See our previous client alert on the proposed regulations available here.

As background, the Affordable Care Act’s (“ACA”) preventive care mandate requires non-grandfathered group health plans to cover—without participant cost-sharing—certain preventive items or services, including:

  • Preventive items or services that receive an “A” or “B” recommendation by the United States Preventive Services Task Force (“USPSTF”);
  • Preventive care and screenings for infants, children, adolescents, and women that are in the guidelines released by the Health Resources and Services Administration (“HRSA”); and
  • Certain immunizations recommended by the Advisory Committee on Immunization Practices (“ACIP”).

As for the reason for the policy reversal, the withdrawal of proposed rulemaking states that the Departments are shifting their focus to other matters, including regulations related to cost sharing under the ACA, air ambulance services, and agent and broker disclosures.  Since the Departments received over 250 comments to the proposed regulations, it may also be that the Departments ran out of time to finalize the proposed regulations before the presidential administration change.

The reversal comes just three days after the Supreme Court announced on January 10 that it will hear the Biden Administration’s appeal of a decision by the U.S. Court of Appeals for the Fifth Circuit regarding preventive care.  In Braidwood Mgmt. v. Becerra, the Fifth Circuit struck down part of the ACA’s requirement for no cost coverage of preventive services recommended or updated by the USPSTF after the date of the ACA’s enactment (March 23, 2010).  The Fifth Circuit reasoned that the structure of the USPSTF is unconstitutional under the Appointments Clause.  See the opinion in Braidwood Mgmt. v. Becerra available here.

This is the second time in less than a month that the Departments have reversed course on proposed regulations meant to expand access to contraceptive services.  On December 23, 2024, the Departments withdrew separate proposed regulations that would have expanded access to no cost contraceptive services.  Specifically, the separate proposed regulations, if finalized, would have removed the moral exemption to providing contraceptive coverage under an employer’s group health plan.  See our previous client alert on these separate proposed regulations available here.

If you have any questions regarding the now withdrawn proposed regulations or preventive care coverage requirements, please contact a member of the Miller Johnson Employee Benefits & Executive Compensation practice group.