Court Blocks Removal of Fertility Awareness-Based Methods of Contraception From HRSA Guidelines

A provider who instructs patients in fertility awareness-based methods of family planning (FABM) sued HHS and its Health Resources and Services Administration (HRSA) for removing “instruction in fertility awareness-based methods, including the lactation amenorrhea method” from the HRSA list of recommended preventive health services. Group health plans subject to the Affordable Care Act’s preventive services health coverage mandate must provide coverage for the services listed in the HRSA guidelines without cost-sharing (see our Checkpoint Question of the Week). Although FABM instruction had been included in the HRSA guidelines as an alternative to medical contraceptives, it was not specifically listed when the guidelines were updated in 2021 (effective in 2023) (see our Checkpoint article). The provider alleged that HRSA did not follow proper procedures when updating the guidelines and asked the court to block the deletion of the FABM recommendation pending the resolution of the lawsuit.

The court concluded that the updated guidelines eliminated the requirement to provide cost-free coverage of FABM instruction by not specifically including it in the list of recommended services. Despite HRSA’s argument that FABM is still encompassed in the guideline requiring “screening, education, counseling, and provision of contraceptives,” the court explained that “when language is removed from a statute or rule, courts presume that the omission changed the text’s meaning.” Further, the court determined that HRSA failed to call out the elimination of FABM instruction in its draft recommendations, thus depriving affected individuals of the right to comment on the proposed change. Concluding that the provider was likely to succeed on the merits and would be harmed by a loss of patients and income if the updated guidelines take effect, the court granted a preliminary injunction that delays the effective date of the FABM deletion until the case is resolved.

EBIA Comment: About two weeks before the court issued this opinion, the DOL, IRS, and HHS issued FAQ guidance making clear that plans must continue to provide coverage for FABM instruction without cost-sharing under the updated HRSA guidelines (see our Checkpoint article). Nevertheless, HRSA faces broader challenges. Another lawsuit targets the constitutionality of HRSA’s authority to craft standards defining the preventive care that health plans must cover. (See Kelley v. Becerra, No. 4:20-cv-00283-O, 2021 WL 9058338 (N.D. Tex.) (Trial Motion, Memorandum and Affidavit).) For more information, see EBIA’s Health Care Reform manual at Section XII.C (“Coverage of Preventive Health Services”) and EBIA’s Group Health Plan Mandates manual at Section XIV.C (“Required Preventive Health Services Coverage”). See also EBIA’s Self-Insured Health Plans manual at Section XIII.C.1 (“Preventive Health Services”).

Contributing Editors: EBIA Staff.