Notre Dame’s New FAQ Continues the Confusion about Birth Control Coverage

FAQs are supposed to be helpful, right? Well, don’t expect clarity if you are reading Notre Dame’s “Frequently Asked Questions About Contraceptive Coverage” webpage about its birth control coverage for students. This FAQ is the latest development in Notre Dame’s whiplash-inducing, one-step-forward-two-steps-back dance over insurance coverage of birth control.
A quick recap of how we got here: In October 2017, the Trump-Pence administration issued rules allowing virtually any employer or university that objects to birth control because of religious or moral beliefs to opt-out of the Affordable Care Act’s birth control benefit, which requires coverage of all 18 Food and Drug Administration-approved birth control methods for women and related services without out-of-pocket costs. In early November, Notre Dame became the first entity to publicly announce its intention to drop coverage under the rules. Then, just one week later, Notre Dame reversed course and announced it would keep coverage in place after all. After all of that, two federal courts blocked the Trump rules from taking effect after determining the rules likely violate federal law.
Even though the rules are blocked for now, Notre Dame reversed course yet again. On February 7, 2018, the school announced its plan to drop coverage of certain birth control methods, claiming authority to do this under a secret settlement agreement with the Trump-Pence administration. Since February 7, Notre Dame students, faculty, and staff have been left guessing which methods of birth control will remain covered. The school promised more details in March, but the newly-released FAQ does little to give students the information they need about their critical preventive health coverage. So, here’s another FAQ to clear a few things up:

Notre Dame says it will still cover some forms of birth control. Does this mean they’re complying with the ACA birth control benefit?
Absolutely not. To comply with the ACA, the school’s health plan must cover all 18 FDA-approved methods of birth control for women, including sterilization, copper and hormonal IUDs, implants, and emergency contraceptives, without requiring any out-of-pocket costs. Not only does it appear that the school is refusing to cover certain birth control methods, its plan will also charge students for methods that are covered, in plain violation of the ACA. According to the FAQ, students will pay the same out-of-pocket costs for birth control covered by the plan as for other prescription drugs.
Will Notre Dame cover the most effective forms of birth control, like IUDs and implants, that have the highest up-front costs?
Unclear. The FAQ says “Certain IUDs and contraceptive implants are covered under the University’s student health insurance plan . . . . Copper IUDs are not covered. ” The school does not specify which, if any, forms of hormonal IUDs and implants will actually be covered by the plan. Instead, the school just says that IUDs and implants will be billed as a “medical service” because they require “placement by a medical provider.” What this actually means for students remains to be seen. A review of the Aetna Student Health Benefits Summary for 2017-18 reveals that the plan charges a $500 yearly deductible. This means that students must pay $500 out of pocket and then pay a considerable percentage (as high as 40 percent) of the cost of the device, the insertion and removal of the device, counseling and education, and follow-up care.
Will Notre Dame cover emergency contraceptives?
No. The University will not cover emergency contraceptives, which are critical to preventing pregnancy after unprotected sex, birth control failure, or sexual assault. Access to emergency contraception is particularly important to sexual assault survivors. Failure to offer emergency contraception can deny survivors control at a critical time and cause further trauma by forcing them to confront an unwanted pregnancy. Given the high rate of sexual assault on college campuses, emergency contraception is a particularly important birth control option for students.
Is Notre Dame’s policy change legal?
No. As explained above, by refusing to cover several FDA-approved birth control methods and charging students for covered methods, Notre Dame is violating the ACA. It is also violating the Supreme Court’s 2016 orders in Univ. of Notre Dame v. Burwell and Zubik v. Burwell. Those Supreme Court orders require that women covered by the University’s health plans must continue to receive the comprehensive contraceptive coverage guaranteed to them by the ACA. In its February 7, 2018 announcement, the University claimed it no longer has to abide by this because of a private agreement it entered with the Trump-Pence administration. But no back-room agreement can authorize Notre Dame to flout the ACA and Supreme Court orders. If Notre Dame pulls coverage in August, it will be violating federal law.

Where can I go for more information?
Notre Dame’s FAQ is not particularly helpful if students need additional information about their coverage:

If you are worried about losing your birth control coverage and have additional questions, please contact NWLC’s CoverHer hotline.