2017 birth control provision fell through the cracks

What happens when a law passes and no one pays attention

IN 2017, amid growing concern that Congress and the Trump administration were moving to limit free access to contraceptives, the Massachusetts Legislature passed and Gov. Charlie Baker signed into law a bill guaranteeing access to birth control without copays.

One of the provisions in that legislation, dubbed the ACCESS law (for Advancing Contraceptive Coverage and Economic Security in our State), offered women greater convenience and control over family planning. Instead of requiring them to visit a pharmacy every month or three months to renew their prescriptions, the law allowed them to receive a 12-month supply after an initial three-month trial period to make sure the pills were satisfactory.

But a strange thing happened after the bill-signing ceremony was over. No one followed up on the 12-month provision. There was no campaign to educate the public about it. Insurers didn’t promote the option to the 1 million women eligible to take advantage of it and even denied coverage to some who asked for it. Pharmacists claimed ignorance, and often told women the provision in the law didn’t exist. As a result, only about 300 women obtained a 12-month supply of birth control last year through the state’s largest insurers.

Ellen Duffer of Boston tried twice over the last three years with two different insurers – Blue Cross Blue Shield of Massachusetts and Harvard Pilgrim — and was denied both times. The first time, in 2018, a pharmacist at CVS declined her request and the two of them got into an argument.

“He did not believe that I had a right to what I was asking for—until I showed him the text of the law, and he then agreed to call my insurer to see if he could give me more than three months of medication,” Duffer said. She said Blue Cross declined to cover a year’s supply.

Laura Fletcher was able to acquire a year-supply of birth control pills after a long battle with her insurer and pharmacy. Six months of her supply remain. (Courtesy photo)

It happened again last year. She went to a different pharmacist and again asked for a year’s supply. The pharmacist was unfamiliar with the law but eventually agreed to seek approval from Harvard Pilgrim for a six-month supply. The insurer declined and Duffer gave up.

Dr. Neena Qasba, an obstetrician and gynecologist who is conducting a study of the 2017  birth control legislation, has been interviewing clinicians and pharmacists about their understanding of the law and barriers to implementation.

“It is hard for me to say what’s lacking the most,” she said. “There is overall poor awareness of the law across the health system — insurers, patients, and providers included. The law was passed in 2017; however, there were no concrete steps to roll out implementation.  And almost four years later, people around the state are still not getting a year-long supply.”

Research indicates easy access to birth control improves family planning. The more packets of birth control available to patients, the better the chance of reducing unintended pregnancies. A 12-month supply can limit gaps in usage, reduce dispensing costs, and cut down on the need for pregnancy tests. During the pandemic, 12-month dispensing of oral contraceptives has emerged as a clinical best practice for reproductive health providers because it cuts down on the number of in-person visits required to obtain refills and can help people retain longer-term access if they are at risk of income or health coverage loss.

The law requires nearly all forms of birth control to be covered with no copay. It also allows pharmacists to fill a prescription for a 12-month supply of birth control as long as the patient’s physician has prescribed 12 months of refills, either all at once or through a series of one to three-month prescriptions. The law applies to everyone covered by health insurance, except the 30 percent of workers on self-funded insurance plans.

In 2020, 124,489 Blue Cross Blue Shield of Massachusetts members received prescription oral contraceptives, yet only 162 accessed the year’s supply. In 2018, only 30 members used the benefit and only 54 did in 2019.  The company says the law took effect in 2018, but it wasn’t effective for all Blue Cross plans until May 2019 due to account renewal cycles, so 2020 was the first calendar year where all members had the benefit for the full year.

“We’ve long since implemented the requirements and our pharmacy operations team is not aware of any issues in filling these prescriptions,” Blue Cross spokesperson Amy McHugh said, insisting no patients have reported issues getting birth control.

Dr. Katherine Dallow, vice president of clinical programs and strategy at Blue Cross Blue Shield of Massachusetts, said a 12-month supply “can absolutely be useful” when a woman knows they will stay on one type of contraceptive. But she said there are circumstances where a woman may not want a year’s supply – if she experiences side effects, for example, or wants to get pregnant.

Dallow said Blue Cross members get a notice of benefits at the beginning of the year, which mentions the law update. But she said electronic medical records might make it hard for providers to choose the unusual one-year option for prescriptions, and pharmacies might not be versed enough in the law changes to properly shepherd patients through the process.

“There are probably half a dozen steps between when the patient actually leaves the office with a prescription and ends up with contraceptives in the patient’s hands,” she said. “There’s a lot of places where there can be a hiccup.”

Spokespersons for Harvard Pilgrim and Tufts Health Plan said their companies were in compliance with the law and have had no access problems reported. Harvard Pilgrim said 32 members received 12-month supplies last year; Tufts said more than 100 of its members did.

None of the insurers had sections of their websites dedicated to the ACCESS Law, which impacts a large amount of their users. Following questioning from CommonWealth, Blue Cross Blue Shield of Massachusetts committed to dedicating a portion of its site to the law.

Asked if they would do something similar, Tufts Health Plan and Harvard Pilgrim said the law change was “communicated the prescription contraceptive coverage available under the ACCESS law to providers and pharmacists,” and insisted it is the “provider’s discretion to decide clinical appropriateness of a 12-month prescription.” They will however, be sending a newsletter to providers this spring to remind them of the law.

There has been confusion over whether the law requiring 12-month prescriptions applies to MassHealth, the state Medicaid program that insures the poor and elderly. Gena Frank, political and policy director for NARAL Pro-Choice Massachusetts, said MassHealth was included in the law, but state officials say there was no absolute mandate.

In late 2019, state officials say, MassHealth proposed regulations allowing members to fill 12-month birth control prescriptions but the regulations were never finalized. Advocates at NARAL and the nonprofit Upstream met with state health officials, and urged MassHealth to approve an emergency COVID-19 regulation that also allowed the dispensing of 12-month prescriptions. It was approved in December 2020.

The agency refused to provide the number of patients who have accessed the 12-month supply and suggested CommonWealth file a public records request if it wanted to pursue the information.

Even though insurers say they cover 12-month prescriptions, few women have taken advantage of it and those who are aware say they have encountered barriers in trying to obtain it.

It took five months for Laura Fletcher, 25, to get her 12-month supply. The medical student said she was told multiple times by CVS pharmacies that her insurer, Harvard Pilgrim, did not cover a 12-month supply. When she called the insurer, she was told her policy end date was less than 12 months away, so she would not be able to receive that many pill packs. She waited several months and tried again, but was told she had to see her physician to get a new 12-month prescription because the old one had expired. Her physician obliged, and after a few more calls and visits to CVS, she got the full supply.

“I felt like if I was eligible for it I wanted to be able to access it. I mean, I’ve been taking these pills since I was 16,” Fletcher said.

Qasba said part of the problem is there is no centralized way for pharmacists or clinicians to receive updates on regulations. “Many pharmacists receive regulatory updates from insurers via fax but that way of communicating new information doesn’t appear to be the most effective,” she said adding that faxes are easily lost and not read, especially during the pandemic.

Dr. Amy Tressan, a Cambridge Health Alliance family medicine physician, said she has encountered a host of problems in prescribing a 12-month supply of birth control. She said electronic medical records systems often default to the standard one or three-month supply and most pharmacies haven’t heard of the law.

“I usually have to follow up [with insurers and pharmacies],” she said. “Most of the time has been about insurance not covering it, and that the pharmacists themselves didn’t know that they could fight it based on that law.”

State Sen. Harriette Chandler of Worcester, who sponsored the law, hadn’t heard until recent weeks that the rollout was going so poorly. When the law was written, she said, an emergency preamble was added to expedite its execution.  ”That was in 2017,” she said. “This is just terrible.”

Lead sponsors Harriette Chandler and John Scibak testify with Attorney General Maura Healey at the legislative hearing for the ACCESS Bill on October 3, 2017. (Photo by Luke Deems)

Chandler said she wasn’t aware until recently that MassHealth was “not in compliance.” She was glad to hear the Division of Insurance sent a reminder to health insurers in August about the 12-month provision. She said her office will follow up with insurers, advocates, and the state to find out what went wrong.

“This is not brain surgery we’re doing here,” she said. “This is just changing it to 12 months, not three. And that should be relatively simple.”

Asked whether legislators are at fault for not including an education component in the bill, Chandler seemed willing to shoulder some of the blame.

“I thought it was generally known, even if there wasn’t a campaign to put it out there to the public,” she said, citing news coverage in 2017. “I guess shame on me because how are they going to know otherwise?”