PRINTER'S NO. 70
No. 38 Session of 2007
INTRODUCED BY C. WILLIAMS, KITCHEN, STACK AND FERLO, FEBRUARY 7, 2007
REFERRED TO BANKING AND INSURANCE, FEBRUARY 7, 2007
AN ACT 1 To ensure equitable coverage of prescription contraceptive drugs 2 and devices and the medical and counseling services necessary 3 for their effective use. 4 The General Assembly of the Commonwealth of Pennsylvania 5 hereby enacts as follows: 6 Section 1. Short title. 7 This act shall be known and may be cited as the Prescription 8 Contraception Equity Act. 9 Section 2. Findings. 10 The General Assembly finds and declares as follows: 11 (1) Each year, more than 3,000,000 women face an 12 unintended pregnancy, representing nearly half of all 13 pregnancies in the United States. 14 (2) By reducing rates of unintended pregnancy, 15 contraception improves women's health and well-being, reduces 16 infant morbidity and mortality and reduces the need for 17 abortion. 18 (3) The cost of adding insurance coverage for all FDA-
1 approved contraception and related medical and counseling 2 services has been estimated at less than $2 per employee per 3 month. 4 (4) Most insurance policies cover prescription drugs and 5 devices and outpatient medical and counseling services but do 6 not cover all methods of FDA-approved contraception and the 7 medical and counseling services necessary for their effective 8 use. Many policies cover no reversible methods of 9 contraception at all. 10 (5) Health insurance policies that fail to cover 11 prescription contraception and related medical and counseling 12 services discriminate against women and place effective forms 13 of contraception beyond the financial reach of many families. 14 Women of reproductive age spend 68% more than men on out-of- 15 pocket health care costs. Contraceptive drugs, devices and 16 related medical and counseling services account for much of 17 this difference. 18 (6) At least 20 states have enacted laws to address the 19 inequity in prescription coverage caused by exclusion of 20 contraceptives. Women in this Commonwealth also deserve this 21 protection. 22 (7) The Equal Employment Opportunity Commission ruled in 23 2000 that employers may not discriminate against women in 24 their health insurance plans by denying benefits for 25 prescription contraceptives if they provide benefits for 26 drugs, devices and services used to prevent other medical 27 conditions. On June 12, 2001, a Federal district court ruled 28 in Erickson v. Bartell Drug Company that an employer's 29 exclusion of prescription contraception from a health plan 30 that covers other prescription drugs and devices is illegal 20070S0038B0070 - 2 -
1 sex discrimination in violation of Title VII of the Civil 2 Rights Act of 1964 (Public Law 88-352, 78 Stat. 241), as 3 amended by the act of October 31, 1978 (Public Law 95-555, 92 4 Stat. 2076), referred to as the Pregnancy Discrimination Act. 5 (8) Following the inclusion of contraceptive coverage in 6 the Federal Employees Health Benefits Program in 1999, the 7 United States Office of Personnel Management reported that no 8 increased cost had been incurred as a result of the added 9 coverage. 10 (9) This act affects the business of insurance. The 11 requirements of this act govern entities within the insurance 12 industry that provide health insurance policies as defined by 13 this act. The provisions of this act transfer and spread an 14 insured's risk and are an integral part of the policy 15 relationship between the insurer and the insured. 16 Section 3. Definitions. 17 The following words and phrases when used in this act shall 18 have the meanings given to them in this section unless the 19 context clearly indicates otherwise: 20 "Commissioner." The Insurance Commissioner of the 21 Commonwealth. 22 "Health insurance policy." A policy, agreement, contract, 23 certificate, indemnity plan, suretyship or annuity issued, 24 proposed for issuance or intended for issuance by an insurer, 25 including endorsements, supplements or riders to an insurance 26 policy, contract or plan, that provides health coverage to an 27 insured and that is issued, delivered, amended or renewed in 28 this Commonwealth on or after the effective date of this act. 29 The term does not include short-term travel or accident-only 30 policies, workers' compensation or short-term nonrenewable 20070S0038B0070 - 3 -
1 policies of not more than six months' duration. A policy located 2 or documented outside this Commonwealth is subject to the 3 requirements of this act if it receives, processes, adjudicates, 4 pays or denies claims for drugs, devices or medical or 5 counseling services submitted on behalf of an insured who 6 resides in or receives drugs, devices or services in this 7 Commonwealth. 8 "Insured." A party named on a health insurance policy, 9 including an individual, corporation, partnership, association, 10 unincorporated organization or any similar entity, as the person 11 with legal rights to the coverage provided by the health 12 insurance policy. For group insurance, the term includes a 13 person who is a beneficiary covered by a group health insurance 14 policy. 15 "Insurer." An individual, corporation, association, 16 partnership, reciprocal exchange, interinsurer, Lloyds insurer, 17 fraternal benefit society and any other legal entity engaged in 18 the business of insurance, including agents, brokers, adjusters 19 and third-party administrators. The term also includes a person 20 who contracts on a risk-assuming basis to provide, deliver, 21 arrange for, pay for or reimburse any of the cost of health care 22 services, including, but not limited to, health plan 23 corporations as defined in 40 Pa.C.S. Chs. 61 (relating to 24 hospital plan corporations) and 63 (relating to professional 25 health services plan corporations), beneficial societies as 26 defined in 40 Pa.C.S. Ch. 67 (relating to beneficial societies), 27 fraternal benefit societies as defined in Article XXIV of the 28 act of May 17, 1921 (P.L.682, No.284), known as The Insurance 29 Company Law of 1921, health maintenance organizations as defined 30 in the act of December 29, 1972 (P.L.1701, No.364), known as the 20070S0038B0070 - 4 -
1 Health Maintenance Organization Act, and preferred provider 2 organizations as defined in section 630 of The Insurance Company 3 Law of 1921, and 31 Pa. Code § 152.2 (relating to definitions). 4 "Limitation." Any of the following: 5 (1) Any copayment, deductible or other cost-sharing 6 mechanism, or premium differential, rules or regulations that 7 establish the type of professionals that may prescribe 8 prescription drugs or devices, utilization review provisions 9 and limits on the volume of prescription drugs or devices 10 that may be obtained on the basis of a single consultation 11 with a professional. 12 (2) Requirements or procedures relating to timing of 13 payments or reimbursement by insurers. 14 (3) Requirements relating to second opinions or 15 preauthorizations prior to coverage. 16 "Outpatient medical or counseling services necessary for the 17 effective use of contraception." The term includes, but is not 18 limited to, examinations, procedures and medical and counseling 19 services provided on an outpatient basis, and services for 20 initial and periodic comprehensive physical examinations, 21 medical, laboratory and radiology services warranted by the 22 initial and periodic examinations or by the history, physical 23 findings or risk factors, including medical services necessary 24 for the insertion and removal of any contraceptive drug or 25 device and individual or group family planning counseling. 26 Coverage for the comprehensive health examination shall be 27 consistent with the recommendations of the appropriate medical 28 specialty organizations and shall be made under terms and 29 conditions applicable to other coverage. 30 "Prescription contraceptive drug or device approved by the 20070S0038B0070 - 5 -
1 Food and Drug Administration." Any regime of a prescription 2 contraceptive drug and any regime of a prescription 3 contraceptive device approved by the Food and Drug 4 Administration, as well as any generic equivalent approved as 5 substitutable by the Food and Drug Administration. 6 Section 4. Requirements for coverage. 7 A health insurance policy shall not: 8 (1) Exclude or restrict coverage for any prescription 9 contraceptive drug approved by the Food and Drug 10 Administration, if the policy provides coverage for other 11 prescription drugs. 12 (2) Exclude or restrict coverage for a prescription 13 contraceptive device approved by the Food and Drug 14 Administration, if the policy provides coverage for other 15 prescription devices. 16 (3) Exclude or restrict coverage for outpatient medical 17 or counseling services necessary for the effective use of 18 contraception, if the policy provides coverage for other 19 outpatient medical or counseling services. 20 (4) Deny to any individual eligibility or continued 21 eligibility to enroll or to renew coverage under the terms of 22 the policy because of the individual's past, present or 23 future use of contraceptive drugs, devices or medical or 24 counseling services that are required by this act. 25 (5) Provide monetary payments or rebates to an insured 26 to encourage the insured to accept less than the minimum 27 coverage required by this act. 28 (6) Penalize or otherwise reduce or limit the 29 reimbursement of a health care professional because that 30 professional has in the past or will in the future prescribe 20070S0038B0070 - 6 -
1 contraceptive drugs or devices, or provide medical or 2 counseling services that are required by this act. 3 (7) Provide monetary or other incentives to a health 4 care professional to withhold from an insured contraceptive 5 drugs or devices or medical or counseling services that are 6 required by this act. 7 Section 5. Construction. 8 Nothing in this act shall be construed as: 9 (1) Preventing a health insurance policy from imposing a 10 limitation in relation to: 11 (i) Coverage for prescription contraceptive drugs, 12 provided that the limitation for this coverage is not 13 greater than or different from limitations imposed under 14 general terms and conditions applicable to all other 15 prescription drugs covered under the policy. 16 (ii) Coverage for prescription contraceptive 17 devices, provided that the limitation for this coverage 18 is not greater than or different from limitations imposed 19 under general terms and conditions applicable to all 20 other prescription devices covered under the policy. 21 (iii) Coverage for outpatient medical or counseling 22 services necessary for the effective use of 23 contraception, provided that the limitation for this 24 coverage is not greater than or different from 25 limitations imposed under general terms and conditions 26 applicable to all other outpatient medical or counseling 27 services covered under the policy. 28 (2) Requiring a health insurance policy to cover 29 experimental prescription contraceptive drugs or devices or 30 experimental outpatient medical or counseling services 20070S0038B0070 - 7 -
1 necessary for the effective use of contraception, except to 2 the extent that the policy provides coverage for other 3 experimental prescription drugs or devices or experimental 4 outpatient medical or counseling services. 5 (3) Requiring coverage for prescription contraceptive 6 drugs, devices or medical or counseling services required by 7 this act in any policy that does not otherwise provide 8 coverage for prescription drugs or devices or outpatient 9 medical or counseling services. 10 Section 6. Enforcement. 11 (a) Action by applicant.--An applicant or an insured who 12 believes that he has been adversely affected by an act or 13 practice of an insurer in violation of this act may: 14 (1) file a complaint with the commissioner, who shall 15 handle the complaint consistent with 2 Pa.C.S. Chs. 5 Subch. 16 A (relating to practice and procedure of Commonwealth 17 agencies) and 7 Subch. A (relating to judicial review of 18 Commonwealth agency action) and address any violation through 19 means appropriate to the nature and extent of the violation, 20 which may include cease-and-desist orders, injunctive relief, 21 restitution, suspension or revocation of certificates of 22 authority or licenses, civil penalties and reimbursement of 23 costs and reasonable attorney fees incurred by the aggrieved 24 individual in bringing the complaint, or any combination of 25 these; or 26 (2) file a civil action against the insurer in a court 27 of original jurisdiction, which, upon proof of this act's 28 violation by a preponderance of the evidence, shall award 29 appropriate relief, including, but not limited to, temporary, 30 preliminary or permanent injunctive relief, compensatory and 20070S0038B0070 - 8 -
1 punitive damages, as well as the costs of suit and reasonable 2 attorney fees for the aggrieved individual's attorneys and 3 expert witnesses. The aggrieved individual may elect, at any 4 time prior to the rendering of final judgment, to recover in 5 lieu of actual damages an award of statutory damages in the 6 amount of $5,000 for each violation. 7 (b) Civil action.-- 8 (1) If an aggrieved individual elects to file a 9 complaint with the commissioner pursuant to subsection 10 (a)(1), that individual's right of action in a court of 11 original jurisdiction shall not be foreclosed. 12 (2) If the commissioner has not secured a resolution of 13 the complaint acceptable to the complainant within 180 days 14 after the filing of the complaint, the complainant may file a 15 civil action pursuant to subsection (a)(2). Upon the filing 16 of a civil action, all proceedings before the commissioner 17 shall terminate. 18 Section 7. Notice of change. 19 The enactment of this act shall be treated as a material 20 notification of a change in the terms of a health insurance 21 policy. 22 Section 20. Effective date. 23 This act shall take effect in 60 days. L18L40MSP/20070S0038B0070 - 9 -