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In September of 2022, Governor Newsom signed , the Contraceptive Equity Act of 2022, into law which, amongst other things, requires fully insured health plans to cover over the counter (OTC) contraceptives without cost sharing. At the time the law was signed, this wasn’t particularly meaningful to those with health insurance as there were no OTC contraceptives that were FDA approved.

As of July 13, 2023, the FDA approved the first OTC daily oral contraceptive pill and the drugmaker has indicated it will be available OTC  starting in first quarter of 2024. Coincidentally (or not), CA fully insured health plans are required to cover OTC contraceptives at the point of sale, at no cost to the member, effective January 1, 2024 for plan years starting or renewing on or after that date.

What is it? SB 523 expands coverage of contraceptives to provide point-of-sale coverage for OTC “FDA-approved contraceptive drugs, devices, and products at in-network pharmacies without cost-sharing or medical management restrictions”.

Which health plans must comply? All CA fully insured group health plans. This also includes health plans offered by public or private institutions of higher learning that directly provide health care only to its students, faculty, staff, and administration.

Religious employers, as defined by CA law, may request a group health plan without coverage for FDA approved contraceptive methods that are contrary to the religious employer’s religious tenets.

When is it effective? Applies to health plans issued, amended or renewed on and after January 1, 2024.

Example: A health plan that renews starting 1/1/24 must cover OTC contraceptives approved by the FDA without cost sharing or medical management restrictions starting 1/1/24.

Are employers that sponsor a health plan required to notify their employees of this change? The law does not require employers to notify their employees of this change; however, ERISA requires group health plans to distribute a summary of material modifications (SMM) whenever there is a change with regards to the contents in the SPD. The SMM must be distributed within 210 days of the adopted change.

What should employers do next? If its group health plan is subject to CA SB 523, the employer should issue the SMM to plan participants within 210 days of the start or renewal of your health insurance policy in 2024.

Summary

CA passed a law to ensure that fully insured health plans cover FDA approved OTC contraceptives. While this may not be of much concern now because the first OTC approved contraceptive is still not on the market, this topic is expected to gain attention once that happens.

The drugmaker of the first FDA approved OTC contraceptive pill has indicated that the pill will be available in most major pharmacies nationwide and online starting in the first quarter of 2024.

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information. This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.