Limited Access to Contraceptives in Illinois

By Alexandra Gross

What does “access” really mean for the purposes of PPACA’s contraceptive coverage mandate?

For two years, I’ve been enrolled in Loyola University of Chicago’s Student Health Insurance Plan, provided through a Blue Cross Blue Shield Illinois (BCBSIL) PPO plan. During this time, I have had to pay out-of-pocket for my contraceptive method every month. As a student studying health law, I was aware of the ACA’s contraceptive coverage mandate, § 2713 of the Public Health Services Act, which requires non-grandfathered health insurance plans to provide access to a full range of Food and Drug Administration approved contraceptive methods without cost sharing. The contraceptive coverage mandate reflects Congress’ determination that “access to preventive services without cost sharing is necessary to achieve access to basic health care,” particularly for women, as they have unique health care needs. The contraceptive coverage mandate also states that plans and insurers may impose “reasonable medical management techniques” to control costs and promote efficient delivery of care. For example, plans may cover a generic drug without cost sharing, but impose cost sharing for the equivalent brand name drug. Even with the imposition of medical management techniques, I still could not figure out why every single woman I talked to who was on my plan had a copayment of twenty dollars or more a month.

My colleagues and I assumed our issues with contraceptives were a result of attending a religiously affiliated institution. We were wrong. Loyola has properly sought a religious exemption from providing contraceptive coverage and communicated to the students and employees that BCBSIL should be accommodating us directly, without Loyola’s involvement. However, in practice, the accommodation is failing the students and employees at Loyola University of Chicago. 

BCBSIL issued an accommodation letter to Loyola students and employees listing contraceptive methods that are available at no cost sharing. When I presented the list to my doctor to see whether I could switch to another generic form of my oral contraceptive with no cost sharing, she was unable to find anything on the list that was medically comparable. In fact, I started to circulate the list to other women on the student health insurance plan via social media and have not found anyone whose contraceptive method is on the list of available contraceptives with no cost sharing.

In response to my outreach, Andrea Jones, MD, a Loyola law student and full-time OB-GYN, reached out to me to discuss the deficiencies in BCBSIL’s drug formulary. BCBSIL offers a long list of progesterone only options (the “mini-pill”), several forms of extended-cycle pills like Seasonique, and estrogen/progesterone combination triphasic options, which contain varied amount of hormones in a single pack. However, it lacks the entire category of estrogen/progesterone combination monophasic options in a 28-day pack, which Dr. Jones prescribes on a daily basis for most of her patients.

Following Dr. Jones’ reply, comments from students and employees at Loyola began to flood in. Many women told me they don’t use their BCBSIL insurance to purchase their contraceptives because it’s cheaper to purchase it out-of-pocket at commercial retailers through $4 or $9 generic prescription programs like Walgreen’s Prescription Savings Club.

I wrote to BCBSIL to request review of our drug formulary and expansion of our contraceptive coverage with no cost sharing. After two and a half months of letters and phone calls, BCBSIL offered a limited resolution through which my colleagues and I can request “contraceptive coverage exception” requiring each of us to submit a letter of medical necessity from our doctors stating why we need a contraceptive that is not listed on the drug formulary. BCBSIL also indicated that it’s not just Loyola students and employees with a limited formulary. The same formulary is used to develop all Illinois private insurance plans. This is no longer a Loyola University of Chicago problem – it’s a problem affecting thousands of women in Illinois.

Is forgoing the use of our health insurance and seeking other methods of prescription drug coverage to obtain preventive care really access to care? Is requiring every woman to submit a letter of medical necessity for one of the most prescribed contraceptives reasonable medical management? We argue it is not. It is burdensome for women and fails to ensure access to care the way it was intended under the ACA. The women at Loyola University of Chicago have taken this as a call-to-action and are working with the National Women’s Law Center to develop an advocacy strategy to protect the reproductive rights of students and employees of the University, as well as any other women in Illinois who are affected by this overt injustice.

Alexandra Gross is a 3L law student at Loyola University of Chicago and President of the Loyola Chapter of Law Students for Reproductive Justice. For further questions or concerns, please email Alexandra Gross at agross2 (at) luc (dot) edu.

Nadia Sawicki

Nadia Sawicki

Nadia N. Sawicki is a Georgia Reithal Professor of Law at Loyola University Chicago, and Academic Director of Loyola’s Beazley Institute for Health Law and Policy. Her research focuses on patient decision-making and the informed consent process, particularly in the areas of end-of-life and reproductive care. Her work has been published in a variety of peer-reviewed journals - including the New England Journal of Medicine; Law & Policy; the Journal of Law, Medicine & Ethics; the American Medical Association Journal of Ethics; the Journal of Clinical Ethics; the American Journal of Bioethics; and the Journal of Legal Medicine – as well as in many academic legal journals. She has previously served as a member of the American Bar Association’s Special Committee on Bioethics and the Law, and was the co-chair of the American Society for Bioethics and the Humanities’ Law Affinity Group. Prof. Sawicki received her J.D. from University of Pennsylvania Law School, and her Masters in Bioethics from University of Pennsylvania School of Medicine. She is a graduate of Brown University, with a concentration in biomedical ethics. Prior to joining the Loyola faculty, Prof. Sawicki held the inaugural George Sharswood Fellowship at the University of Pennsylvania Law School, served as a lecturer in History and Sociology of Science at the University of Pennsylvania's School of Arts and Sciences, practiced law with Wolf, Block, Schorr & Solis-Cohen, and clerked for the Honorable J. Curtis Joyner of the U.S. District Court for the Eastern District of Pennsylvania.

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