Contraceptive ACCESS Toolkit
Learning from the successes and challenges of implementing Massachusetts’ 2017 Contraceptive ACCESS law
In 2017, the ACCESS bill was signed into law after it passed both chambers of the Massachusetts legislature with overwhelming, bipartisan support. However, this was a victory long in the works, and the initial legislative win is only part of the story...
ACCESS, now in effect for nearly four years, requires all state-regulated Massachusetts insurance carriers to provide all FDA-approved contraceptive methods with no copay, including over-the-counter emergency contraception. This law also allows consumers to access up to a 12-month supply of a patient’s prescribed contraception at once. This was a major win for reproductive health care access and ensuring that cost is never a barrier to obtaining care.
But unfortunately, implementation of the law has been plagued by lack of knowledge, systemic failures, communication breakdowns, and more. The two biggest failures of implementation remain the inability to fill a 12-month prescription for oral contraceptives and the inability to use insurance benefits to obtain emergency contraception at the point of sale without paying out-of-pocket.
This toolkit aims to provide an honest look at the advocacy and activism that led to the ACCESS law, the problems Massachusetts has encountered with implementation, and the measures that have been designed to bring the full potential of the law to fruition. Included in the toolkit are communications, talking points, and strategic documents that were used to get the legislation passed; discussion of supporting and supplemental efforts necessary to properly effectuate the law; and analysis of how the law was implemented in Massachusetts, analyzing both the successes and failures of the process.
You can find and download the entire Toolkit in PDF form HERE. Key components are also presented on this webpage.
What is the ACCESS Law?
The benefits of the ACCESS law are available to patients on all fully insured health benefit plans issued to individuals and employers in Massachusetts. This includes health plans insured through the Massachusetts Health Connector (e.g., all ConnectorCare Health Plans). The ACCESS law also applies to some government programs, such as MassHealth, and plans offered by the Group Insurance Commission.
An Act Relative to Advancing Contraceptive Coverage and Economic Security in our State, colloquially known as “ACCESS,” provides:
Fully insured plans must cover at least one contraceptive drug, device or other product within each of 18 FDA-approved contraceptive method categories
Patients can obtain a 12-month supply of a patient’s prescribed contraception at once, after an initial three-month trial supply
Plans may provide coverage for more than one product within a contraceptive method, but at least one therapeutic equivalent within each method category must be covered with no cost sharing
No deductible, copayment or coinsurance is permitted
The law restricts use of prior authorization or step therapy
Plans must cover female sterilization
The law does not include coverage for male condoms or male sterilization
The law establishes no cost sharing for emergency contraception
Purchased with a prescription, or
Purchased pursuant to a standing order
To find a one-pager for the ACCESS Law, click HERE.
The Problems Encountered in Massachusetts:
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Patients are the whole reason this contraceptive regime was enacted; however, implementation has been stymied by:
A general lack of knowledge about the law;
A high proportion of interested patients don’t know if they are on a fully insured or self-funded plan and what benefits they may be eligible for; and
A high proportion of interested patients are on self-funded plans.
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The whole process starts when a patient comes to a provider asking about birth control options. Provider knowledge and the ability to write and refill the script correctly are critical to successful ACCESS implementation. Among the issues seen at the provider level are:
A general lack of knowledge about the law;
Providers do not know if their patients are on self-funded or fully insured plans;
Difficulties figuring out/standardizing how to write prescriptions for 12 months/one year; and
Automated refill systems that are not yet equipped to handle 12-month prescriptions.
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Pharmacists are critical to ACCESS implementation on virtually every level and across virtually every provision of the law. Pharmacists are one of the key places where implementation could fall short. Some of the identified issues include:
A general lack of knowledge;
Trouble reading/interpreting non-standardized prescriptions;
Pharmacists refusing to run a 12-month prescription as written;
Pharmacies not having a 12-month supply of oral contraceptives in stock;
Pharmacies not having a supply of oral contraceptives that will not expire within 12 months;
After a 12-month claim is denied by insurance – sometimes erroneously – the pharmacists dispense three months to the patient, but when the patient returns after three months, no refills are left in system;
Pharmacists refuse to dispense other than exactly as written (i.e. a prescription written as three pill packs with three refills may be dispensed all at once—some pharmacists are refusing to fill this way); and
Most pharmacists have not acquired a standing order for emergency contraception.
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Pharmacy Benefit Managers serve as a liaison with Health Plans and Pharmacies; Pharmacy Benefit Managers are critical to ACCESS implementation because of their role in developing formularies. In the event that there is a problem at the pharmacy benefit level, it likely stems from:
A general lack of knowledge; or
A lack of awareness of the law when developing formularies.
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Carriers and Health Plans are critical to ACCESS implementation as they play a large role in developing formularies and deciding what claims will be approved or denied. Most of the instances of 12-month claims improperly denied by insurance or patients forced to undergo a three-month trial period for a prescription they have had for years can be attributed to:
A general lack of knowledge among customer service representatives and representatives processing claims;
Incomplete formularies;
Lack of awareness of law when developing formularies/formularies out of compliance; and
Poor communication between pharmacists and insurance claims departments.
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Employers can play a key role in helping employees access their state mandated insurance benefits. Employers should be aware of the law and insist that employees are properly covered. Additionally, employers should be proactive in helping their employees know if they are fully insured or self-funded.
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The DOI is the agency primarily tasked with enforcing compliance with the ACCESS law. DOI’s lethargic response to the law can be attributed to:
A general lack of knowledge about how birth control works; and
Lack of people-power for appropriate oversight.
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Governor Bakers’s office was happy to sign ACCESS into law and take credit for a reproductive rights victory. However, the Governor’s office has been much more reluctant to take steps towards implementation of the law. If the Governor’s office wanted to fix the implementation problems in ACCESS, it could direct its agencies to promulgate regulations to ensure compliance with the mandate of the ACCESS law. This directive has not come.
Bay State residents deserve more from the Governor: they deserve someone who will help champion their rights.
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It is also important to note the ways in which the language of the law created difficulties in implementation. Six key ways in which compliance with ACCESS has been stymied by the plain language of the law include:
The lack of reporting requirements;
A lack of clear compliance mechanisms and penalties for non-compliance;
Framing the emergency contraception standing order as something pharmacists may, but are not required to, obtain, and failing to secure a statewide standing order for emergency contraception;
The initial lack of funding for a public awareness campaign;
Delegating authority to ensure compliance without specifically calling for the promulgation of regulations; and
Inclusion of the three-month trial provision.
Here we analyze the ACCESS compliance breakdowns as they pertain to patients, providers, pharmacists, pharmacy benefit managers, carriers and health plans, the Division of Insurance, and employers. General lack of knowledge about the law was a common theme across all domains and with all stakeholders. This highlights the need for a multifaceted public awareness campaign and appropriate funding attached, as well as the need for some method of accountability, such as reporting requirements.
Our Resolution of Issues
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Tracking known instances of noncompliance was critical to REN’s work. It allowed REN to identify patterns and develop a sense of which insurers were the “worst offenders.” With this, the organization was able to focus its attention on these insurers and work directly with them to (a) secure birth control for the individual patient, and (b) put forward emergency guidance urging internal compliance with the law.
Publicizing the failures of the law was equally crucial and played a large role in helping to secure funds for the public awareness campaign. Commonwealth Magazine published a comprehensive article illustrating the lack of compliance with the ACCESS law, which highlighted the role of insurance companies and Administrative apathy in the failures to implement the law properly. The public attention put pressure on the legislature, the DOI, the GIC, and insurance companies to start taking implementation of this law seriously. Without the public pressure from the news article, it is uncertain whether there would have been the momentum to accomplish many of the actions discussed below (ie. securing funding for a public awareness campaign; DOI holding listening and information sessions; DOI creating a fact sheet; etc.).
Securing funding for a public awareness campaign was made possible, in part, by the publicity generated by the Commonwealth Magazine article and in part through leveraging relationships at the State House. While it may have been easier to get ACCESS passed initially because there was no fiscal note, getting budget dollars allocated proved to be a critical piece of advocacy.
The creation of a flow chart to help patients determine if they are fully insured or self-funded was another significant measure in helping eligible patients access contraception. Because the state mandate only applies to consumers on fully insured plans (and the GIC, even though its plans are self-funded), it is important to help patients know if they are eligible. Insurance is messy and confusing—and whether someone is fully insured or self-funded is not clearly indicated on an insurance card, and not always even in insurance documents. REN created a flow chart to help clarify.
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Formation of an ACCESS working group was a pivotal moment in progress towards ACCESS compliance. The working group consisted of local clinicians and pharmacists who have their finger on the pulse of reproductive health needs in Massachusetts, as well as lawyers and policy experts from REN and UpstreamUSA (Upstream). The working group was formed in order to more concretely identify problems and ascertain where and why things were not working. Having clinician and pharmacist subject-matter expertise has been invaluable in terms of understanding the nuanced manner in which law and policy play out in practice. These voices have also been critical as advocates work to push back against DOI and insurers’ indifference and finger-pointing.
Securing CE Credits for medical professionals taking a course on ACCESS will help incentivize people to learn about the law and achieve greater levels of buy-in. Once again, partnerships and REN’s relationship with members of the ACCESS working group were key to realizing this as a compliance mechanism. The continuing education course, Fulfilling the Promise of ACCESS: Ensuring Contraceptive Equity for Massachusetts Patients, is designed for providers and pharmacists and launches September 2022. The course will enable providers and pharmacists to identify the key components of Massachusetts’ 2017 Contraceptive ACCESS law; recognize the benefits of 12-month contraception access for patients; describe the three-month trial period for 12-month dispensing to patients; discuss the process of acquiring coverage for a “nonpreferred method” with patients; explain the process for prescribing or dispensing medically appropriate emergency contraception consistent with current state law; and troubleshoot potential “breakdown” points to ensure patient-centered care. The continuing
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Working directly with insurers has also been a key component of our advocacy efforts. For example, in the fall of 2020, Upstream and REN met with MassHealth (Massachusetts’ Medicaid program) about lack of compliance with the ACCESS law. MassHealth explained that the pharmacy regulations which would have put in the 12-month provision had been held up in draft form and not finalized for an issue unrelated to contraception. Our advocates asked them to use emergency powers granted to them because of the COVID-19 pandemic to extend their current coverage to a 365-day supply. This seemed like a reasonable request as they had already extended from one month to three months already for other medications. They acquiesced. Our advocates then affirmatively raised potential areas of confusion that REN was hearing from clinicians. REN advocates worked collaboratively with Upstream to create an FAQ for providers to answer some of these questions with the hopes that MassHealth would adopt them as their own eventually.
Urging the DOI to hold information and listening sessions on ACCESS was one of our earliest entry points with the DOI. These listening sessions and information sessions eventually developed into an FAQ guidance document on the ACCESS Law. One of the key jobs of REN at these listening sessions was to ensure that accurate information was conveyed. This involved working with DOI beforehand to ensure that their presenter understood the complexities and nuances of birth control and the complexities and nuances of the law. Do not take for granted that the government agency tasked with ensuring compliance with the law will be well versed in the law or the subject of birth control. It took a great deal of work prior to the listening sessions to get the DOI representative up to speed and fluent in the language of reproductive health care and birth control.
Helping the DOI draft a FAQ document was the next natural step after our role in the listening sessions. The development of a Q&A document explaining the ACCESS law in layperson’s terms ended up being exceptionally important on a number of fronts: Upstream provided a Q&A document for MassHealth; REN and the ACCESS Working Group developed a Q&A for the DOI; and after the DOI circulated their initial Q&A document, REN and the ACCESS Working Group provided in-depth suggested edits. These edits were important in maintaining a patient-centered approach to the FAQ, given that the other feedback was coming from the insurers.
Negotiating three-month trial documentation turned out to be one of the most challenging conversations surrounding the DOI’s FAQ document—but it was also one of the most important conversations. The FAQ, as originally written, sent mixed messages with regard to what documentation is necessary to show an insurer that a patient has satisfied the three-month trial before receiving a 12-month prescription. It is important that the provider should be able to write the prescription in such a manner as to indicate that the member has demonstrated prerequisite contraceptive usage and is eligible for full 12-month coverage under the new health plan. REN, Upstream, and the rest of the ACCESS Working Group worked hard to encourage DOI that any form of notation indicating three-month trial satisfaction would be acceptable so as not to create a situation where insurers were essentially requiring prior authorization.
Crafting a memo to DOI urging greater oversight and action towards compliance became an additional step as the DOI lagged on taking any action. This memo outlined the regulatory authority of the DOI and advocated for certain proactive measures to ensure ACCESS compliance. Specifically, REN advocated for DOI to: (1) collect data from insurers on rates of 12-month prescription requests filled and 12-month prescription request denials—and the reason for the denial; (2) compile and publish a list of fully insured health plans; (3) issue a guidance document requesting fully insured plans self-identify and send (or resend) a member level notice of eligibility; and (4) promulgate regulations or guidance documents detailing how health plans know if the three-month provision has been satisfied and what is suitable documentation.
Consulting on a Public Awareness campaign, in coordination with the Department of Public Health, have given the ability to help shape the public messaging for the campaign and ensure legal accuracy. REN serves as a subject matter expert consultant and is working closely with the organization tasked with managing the ACCESS campaign. Through this work, REN has been able to raise awareness, educate about the law and its benefits, and clarify the path towards implementation for key stakeholders.
An Act to Improve Access to Emergency Contraception (H2264, S1372), which creates a statewide standing order for both prescription and over-the-counter emergency contraceptives to ensure insurance coverage is possible for all forms of emergency contraception, was introduced in the 2021-2022 Legislative Session to help address the low number of pharmacists acquiring a standing order for emergency contraception.
Working with the City of Boston to advocate for a city-wide standing order for emergency contraception became a priority in response to the low number of pharmacists acquiring a standing order for emergency contraception. Part of the hope was that this could be used to push the legislation forward at the state level by essentially creating a “pilot program” of sorts to demonstrate how beneficial a broader standing order mandate could be.
What We’d Do Next Time:
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Without any reporting requirements, it is incredibly difficult to determine the number of consumers trying to access this benefit on each plan, as well as the number of consumers actually able to access the benefits versus the number of consumers denied. Individual reporting at the consumer level or relying on the work of small, grassroots, non-profit organizations are not viable options to achieve a holistic understanding of the challenges to implementing this law. It is essential that the government body or agency tasked with implementation of the law also have the capacity to require annual or biannual reporting on requests, approvals, denials, and refills from each health plan. This would allow for identification of noncompliant plans, implementation issues with the law, and also collect data which could help identify which populations might benefit from a public awareness campaign.
It is equally important that whatever reporting requirement is put in place is actually enforced and followed up on. The one portion of the ACCESS law that does have a reporting requirement is the emergency contraceptive provision—here the reporting requirement is not part of ACCESS, but rather the section of code this provision references: M.G.L. c. 94C, §19A(d). §19A(d) requires any “pharmacist dispensing emergency contraception under this section shall annually provide to the department of public health the number of times such emergency contraception is dispensed.” However, since the law was enacted in 2017, very few pharmacists have reported obtaining standing orders to DPH and only one has reported annually. To date, DPH has not followed up on this. Any reporting requirement must also be monitored and followed up on by the appropriate agency–preferably one with the people-power, capacity, and subject matter expertise to do so.
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The ACCESS law as written has virtually no compliance mechanism or penalties for non-compliance. In Massachusetts, there are various entities (GIC, DOI, MassHealth) that oversee compliance, but neither the law nor the agencies have put in place any sort of penalty for non-compliance. Furthermore, none of the entities or agencies have aggressively pursued enforcement. Without any agency to ensure compliance or enforce penalties for non-compliance, there is little incentive for insurance companies to comply.
In hindsight, ACCESS could have benefited from clearer compliance mechanisms and potentially even a penalty for non-compliance.
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The ACCESS law provides coverage for “FDA-approved emergency contraception available over-the-counter, whether with a prescription or dispensed consistent with the requirements of section 19A of chapter 94C.” Section 19A of chapter 94C provides that “a licensed pharmacist may dispense emergency contraception” pursuant to a standing order obtained by that licensed pharmacist. Because the law is framed as a “may” rather than a “shall” or a “must,” very few pharmacists have obtained standing orders. Obtaining a standing order is not a simple task: the pharmacist must first get employer approval then find a prescriber who is willing to be the supervising physician on the standing order. Afterwards, the pharmacist must complete paperwork with the Board of Pharmacy, register with DPH and update annually, and then attend additional continuing education credits annually. As a result, the 2021-2022 legislative session saw the introduction of An Act to Improve Access to Emergency Contraception (H2264, S1372) which would create a statewide standing order. As an interim measure, REN is also looked into the feasibility of city-wide standing orders.
In retrospect, the ACCESS legislation would have been improved by creating a state-wide standing order so that every pharmacy could dispense emergency contraception, rather than relying on individual pharmacists to procure a standing order on their own.
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When the ACCESS law passed, there was no funding attached to it. Admittedly, it is easier to get a bill passed when there are no financial obligations associated with it. However, there is some indication that lack of awareness about the law contributed to the initial slow rollout. The lack of awareness was not just among consumers–there were multiple reports of pharmacists refusing to run 12-month prescriptions or insisting the ACCESS law did not exist.
Securing funding for a thorough public awareness campaign designed to educate not only consumers, but providers, pharmacists, and insurers, is critical to successful implementation and should be secured during the initial drafting of the bill, if possible.
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In Massachusetts, the law delegates compliance authority to GIC with the statement: “The commission shall ensure plan compliance with this chapter,” and delegates compliance authority over private insurers to the Division of Insurance through language such as “The commissioner of insurance shall ensure that plans issued under subsection (d) comply with this chapter.”
Contrast this language with the language used in MGL. c. 94C, Section 19B, the statute authorizing a standing order for NARCAN:
(b) The department shall ensure that a statewide standing order is issued to authorize the dispensing of an opioid antagonist in the commonwealth by any licensed pharmacist….
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(h) The department, the board of registration in medicine and the board of registration in pharmacy shall adopt regulations to implement this section.
Note that MGL. c. 94C, Section 19B specifies that the various agencies affected by the statute are tasked with adopting regulations to implement the statute. While GIC, DOI, etc. still have authority to promulgate regulations consistent with ACCESS compliance, there likely would have been faster and more decisive action on the part of these agencies if they had been specifically called to in the language of the statute.
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The three-month trial provision of ACCESS is one of the largest barriers to full implementation. One of the questions that arises is how a health plan is to know that the three-month provision has been satisfied. The health plans insist they will make a good faith effort to accept all reasonable documentation. According to consumers who have come forward to us, plans require consumers to go through a lengthy and time-consuming appeals process to prove compliance with the three-month trial provision. This good faith effort should not be taken at face value by health plans given that: (1) it is the health plans that insisted on inserting this provision when the law was initially negotiated; and (2) the health plans still have not taken any steps to identify what is proper documentation or implement protocols that could streamline the process of satisfying the documentation requirements.
As such, record of a previous prescription or a note from the health care provider should be acceptable, and this should be able to be indicated on the prescription itself. The provider should be able to write the prescription in such a manner as to indicate that the patient has demonstrated prerequisite contraceptive usage and is eligible for full 12-month coverage.
States looking to pass a 12-month contraceptive access law should work to avoid the three-month trial period provision.
There is much to be proud of in the work the coalition partners did to successfully negotiate and pass ACCESS. The law was an important step towards contraceptive equity, promising access to a year's supply of contraception without a copay, providing a mechanism for easier access to emergency contraception, and promising Massachusetts residents reproductive freedoms from potential roll-backs of the ACA. The bill was negotiated with insurance companies prior to introduction into the legislature, all but ensuring its success. None of this should be overlooked or taken for granted—it was, and remains, an important achievement. However, as implementation of the law demonstrates, there was still room for improvement of the law as passed.
“We know the benefits of increased contraceptive access: fewer unintended pregnancies, better health care outcomes, and far lower costs on consumers.”
— Rebecca Hart Holder, Executive Director of Reproductive Equity Now
What Other States Can Learn From Massachusetts
As illustrated, a number of important lessons can be learned from the troubles Massachusetts saw in implementation of the ACCESS law and efforts to obtain compliance:
It is essential that the government body or agency tasked with implementation of the law also have the capacity to require annual or biannual reporting on requests, approvals, denials, and refills from each health plan;
It is equally important that whatever reporting requirement is put in place is actually enforced and followed up on;
Include clearer compliance mechanisms and potentially even a penalty for noncompliance;
Create a statewide standing order so that every pharmacy could dispense emergency contraception, rather than relying on individual pharmacists to procure a standing order on their own;
Securing funding for a thorough public awareness campaign designed to educate not only consumers, but providers, pharmacists, and insurers, is critical to successful implementation and should be secured during the initial drafting of the bill, if possible;
Delineate in the statute which agencies are responsible for compliance and direct these agencies to promulgate regulations consistent with this goal;
Try to exclude any three-month trial provision from the text of the bill;
If this is not possible, push for a statute or regulations stating that the three-month trial period can be satisfied by a record of a previous prescription or a note from the health care provider should be acceptable, and this should be able to be indicated on the prescription itself. The provider should be able to write the prescription in such a manner as to indicate that the patient has demonstrated prerequisite contraceptive usage and is eligible for full 12-month coverage.
However, a number of important lessons can also be learned from the initial successes in negotiating and advocating for the bill, as well as our efforts to ensure compliance after the bill was passed. These include:
Building a strong coalition to negotiate and advocate on behalf of contraceptive equity;
Collect and utilize patient voices;
Leverage connections and relationships across various domains and disciplines; and
Form a working group of advocates, clinicians, pharmacists, and other stakeholders who can help inform the content of the statute, regulations, and any regulatory guidance documents. The working group will also be critical for helping to track denials and connecting patients to organizations that can help liaise with insurance companies. A working group is invaluable to achieving a holistic understanding of moving from the language of the statute to the reality of the policies in practice.
Reproductive Equity Now Executive Director Rebecca Hart Holder speaks at a press conference at the Massachusetts State House in support of the ACCESS law in 2017.
Attorney General Maura Healey testifies at a joint hearing on the ACCESS law at the Massachusetts State House in 2017.
Communications and Advocacy Resources for ACCESS Law Implementation
Sample Testimony
To find sample testimony submitted by Reproductive Equity Now on behalf of An Act advancing contraceptive coverage and economic security in our state, CLICK HERE.
Guidance Documents for Legislative Visits
To find a sample one-pager for the legislation, CLICK HERE.
To find sample talking points for advocates, CLICK HERE.
Communications Materials
To find a sample op-ed, CLICK HERE.
To find a sample sign-on letter, CLICK HERE.
To find sample Q&A on the bill, CLICK HERE.