PRINTER'S NO. 4138
No. 2959 Session of 1998
INTRODUCED BY L. I. COHEN, BEBKO-JONES, ROBINSON, ROSS AND
C. WILLIAMS, NOVEMBER 17, 1998
REFERRED TO COMMITTEE ON RULES, NOVEMBER 17, 1998
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 hereby declares and finds that:
11 (1) Each year, approximately 3.6 million 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 Food
1 and Drug Administration-approved contraception and related
2 medical and counseling services is estimated at $1.78 per
3 employee per month.
4 (4) To defray their medical expenses, most women in the
5 United States, including two-thirds of women of childbearing
6 age, rely on some form of private, employment-related
7 insurance, which they receive through either their own
8 employer or a family member's employer.
9 (5) Although 97% of typical fee-for-service insurance
10 policies written for large groups or preferred provider
11 organizations cover prescription drugs and 92% of these
12 policies cover prescription medical devices, including drugs
13 and devices used exclusively by men, 49% of these policies
14 cover no reversible method of contraception at all. Moreover,
15 only 15% of these policies cover all five methods of Food and
16 Drug Administration-approved contraception.
17 (6) Although the vast majority of typical fee-for-
18 service insurance policies written for large groups or
19 preferred provider organizations cover outpatient medical and
20 counseling services, the majority of these policies failed to
21 cover outpatient medical and counseling services necessary
22 for the effective use of contraception.
23 (7) Health insurance policies that fail to cover
24 prescription contraception and related medical and counseling
25 services discriminated against women and place effective
26 forms of contraception beyond the financial reach of many
27 families. Women of reproductive age spend 68% more than men
28 on out-of-pocket health care costs. Contraceptive drugs,
29 devices and related medical and counseling services account
30 for much of this difference.
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1 (8) This act affects the business of insurance. The
2 requirements of this act govern entities within the insurance
3 industry that provide health insurance policies. The
4 provisions of this act transfer and spread an insured's risk
5 and are an integral part of the policy relationship between
6 the insurer and the insured.
7 Section 3. Definitions.
8 The following words and phrases when used in this act shall
9 have the meanings given to them in this section unless the
10 context clearly indicates otherwise:
11 "Commissioner." The Insurance Commissioner of the
12 Commonwealth.
13 "Health insurance policy." Any policy, agreement, contract,
14 certificate, indemnity, plan, suretyship or annuity issued,
15 proposed for issuance or intended for issuance by an insurer,
16 including endorsements, supplements or riders to an insurance
17 policy, contract or plan that provide health coverage to an
18 insured and that is issued, delivered, amended or renewed in
19 this Commonwealth on or after the effective date of this act.
20 The term does not include short-term travel or accident-only
21 policies, workers' compensation or short-term nonrenewable
22 policies of not more than six months' duration. A policy located
23 or documented outside this Commonwealth is subject to the
24 requirements of this act if it receives, processes, adjudicates,
25 pays or denies claims for drugs, devices or medical or
26 counseling services submitted on behalf of an insured who
27 resides in or receives drugs, devices or services in this
28 Commonwealth.
29 "Insured." A party named on a health insurance policy,
30 including an individual, corporation, partnership, association,
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1 unincorporated organization or any similar entity, as the person
2 with legal rights to the coverage provided by the health
3 insurance policy. For group insurance, the term includes a
4 person who is a beneficiary covered by a group health insurance
5 policy.
6 "Insurer." Any individual, corporation, association,
7 partnership, reciprocal exchange, interinsurer, Lloyds insurer,
8 fraternal benefit society and any other legal entity engaged in
9 the business of insurance, including agents, brokers, adjusters
10 and third-party administrators. The term also includes any
11 person that contracts on a risk-assuming basis to provide,
12 deliver, arrange for, pay for or reimburse any of the cost of
13 health care services, including, but not limited to, health plan
14 corporations as defined in 40 Pa.C.S. Chs. 61 (relating to
15 hospital plan corporations) and 63 (relating to professional
16 health services plan corporations); beneficial societies as
17 defined in 40 Pa.C.S. Ch. 67 (relating to beneficial societies);
18 fraternal benefit societies as defined in the act of December
19 14, 1992 (P.L.835, No.134), known as the Fraternal Benefit
20 Societies Code; health maintenance organizations as defined in
21 the act of December 29, 1972 (P.L.1701, No.364), known as the
22 Health Maintenance Organization Act; and preferred provider
23 organizations as defined in section 630 of the act of May 17,
24 1921 (P.L.682, No.284), known as The Insurance Company Law of
25 1921, and 31 Pa. Code § 152.2 (relating to definitions).
26 "Limitation." The term includes any copayment, deductible or
27 other cost-sharing mechanism or premium differential, rules or
28 regulations that establish the type of professionals that may
29 prescribe prescription drugs or devices, utilization review
30 provisions and limits on the volume of prescription drugs or
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1 devices that may be obtained on the basis of a single
2 consultation with a professional; requirements or procedures
3 relating to timing of payments or reimbursement by insurers; and
4 requirements relating to second opinions or preauthorizations
5 prior to coverage.
6 "Outpatient medical or counseling services necessary for
7 effective use of contraception." The term includes, but is not
8 limited to, examinations, procedures and medical and counseling
9 services provided on an outpatient basis. The term includes
10 services for initial and periodic comprehensive physical
11 examinations, medical, laboratory and radiology services
12 warranted by the initial and periodic examinations or by the
13 history, physical findings or risk factors, including medical
14 services necessary for the insertion and removal of any
15 contraceptive drug or device and individual or group family
16 planning counseling. Coverage for the comprehensive health
17 examination shall be consistent with the recommendations of the
18 appropriate medical specialty organizations and shall be made
19 under terms and conditions applicable to other coverage.
20 "Prescription contraceptive drug or device approved by the
21 Food and Drug Administration." The term includes all regimes of
22 all prescription contraceptive drugs and all regimes of all
23 prescription contraceptive devices approved by the Food and Drug
24 Administration as well as any generic equivalent approved as
25 substitutable by the Food and Drug Administration.
26 Section 4. Requirements for coverage.
27 A health insurance policy shall not:
28 (1) Exclude or restrict coverage for any prescription
29 contraceptive drug approved by the Food and Drug
30 Administration if such policy provides coverage for other
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1 prescription drugs.
2 (2) Exclude or restrict coverage for any prescription
3 contraceptive device approved by the Food and Drug
4 Administration if such policy provides coverage for other
5 prescription devices.
6 (3) Exclude or restrict coverage for outpatient medical
7 or counseling services necessary for the effective use of
8 contraception if such policy provides coverage for other
9 outpatient medical or counseling services.
10 (4) Deny to any individual eligibility or continued
11 eligibility to enroll or to renew coverage under the terms of
12 the policy because of the individual's past, present or
13 future use of contraceptive drugs, devices or medical or
14 counseling services that are required by this act.
15 (5) Provide monetary payments or rebates to any insured
16 to encourage such insured to accept less than the minimum
17 coverage required by this act.
18 (6) Penalize or otherwise reduce or limit the
19 reimbursement of a health care professional because that
20 professional has in the past or will in the future prescribe
21 contraceptive drugs or devices, or provide medical or
22 counseling services that are required by this act.
23 (7) Provide monetary or other incentives to a health
24 care professional to withhold from any insured contraceptive
25 drugs or devices or medical or counseling services that are
26 required by this act.
27 Section 5. Construction.
28 Nothing in this act shall be construed as:
29 (1) Preventing a health insurance policy from imposing a
30 limitation in relation to:
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1 (i) Coverage for prescription contraceptive drugs,
2 provided that the limitation for this coverage is not
3 greater than or different from limitations imposed under
4 general terms and conditions applicable to all other
5 prescription drugs covered under the policy.
6 (ii) Coverage for prescription contraceptive
7 devices, provided that the limitation for this coverage
8 is not greater than or different from limitations imposed
9 under general terms and conditions applicable to all
10 other prescription devices covered under the policy.
11 (iii) Coverage for outpatient medical or counseling
12 services necessary for the effective use of
13 contraception, provided that the limitation for this
14 coverage is not greater than or different from
15 limitations imposed under general terms and conditions
16 applicable to all other outpatient medical or counseling
17 services covered under the policy.
18 (2) Requiring a health insurance policy to cover
19 experimental prescription contraceptive drugs or devices or
20 experimental outpatient medical or counseling services
21 necessary for the effective use of contraception, except to
22 the extent that the policy provides coverage for other
23 experimental prescription drugs or devices or experimental
24 outpatient medical or counseling services.
25 (3) Requiring coverage for prescription contraceptive
26 drugs, devices or medical or counseling services required by
27 this act in any policy that does not otherwise provide
28 coverage for prescription drugs or devices or outpatient
29 medical or counseling services.
30 Section 6. Enforcement.
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1 (a) Procedures.--An applicant or insured who believes that
2 he or she has been adversely affected by an act or practice of
3 an insurer in violation of this act may:
4 (1) file a complaint with the commissioner, who shall
5 handle the complaint consistent with 2 Pa.C.S. Chs. 5 Subch.
6 A (relating to practice and procedure of Commonwealth
7 agencies) and 7 Subch. A (relating to judicial review of
8 Commonwealth agency action) and address any violation through
9 means appropriate to the nature and extent of the violation,
10 which may include cease and desist orders, injunctive relief,
11 restitution, suspension or revocation of certificates of
12 authority or licenses, civil penalties and reimbursement of
13 costs and reasonable attorney fees incurred by the aggrieved
14 individual in bringing the complaint, or any combination of
15 these; or
16 (2) file a civil action against the insurer in a
17 Commonwealth court of original jurisdiction, which, upon
18 proof of the act's violation by a preponderance of the
19 evidence, shall award appropriate relief, which may include
20 temporary, preliminary and permanent injunctive relief,
21 compensatory and punitive damages, as well as the costs of
22 suit and reasonable attorney fees for the aggrieved
23 individual's attorneys and expert witnesses. The aggrieved
24 individual may elect, at any time prior to the rendering of
25 final judgment, to recover in lieu of actual damages, an
26 award of statutory damages in the amount of $5,000 for each
27 violation.
28 (b) Complaints and civil actions.--If an aggrieved
29 individual elects to file a complaint with the commissioner
30 pursuant to subsection (a)(1), that individual's right of action
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1 in a Commonwealth court of original jurisdiction shall not be
2 foreclosed. If the commissioner has not secured a resolution of
3 the complaint acceptable to the complainant within 180 days
4 after the filing of the complaint, the complainant may file a
5 civil action pursuant to subsection (a)(2). Upon the filing of a
6 civil action, all proceedings before the commissioner shall
7 terminate.
8 Section 7. Notice of change.
9 The adoption of this act shall be treated as a material
10 notification of a change in the terms of the health insurance
11 policy.
12 Section 8. Severability.
13 The provisions of this act are severable. If any provision of
14 this act or its application to any person or circumstance is
15 held invalid, the invalidity shall not affect other provisions
16 or applications of this act which can be given effect without
17 the invalid provision or application.
18 Section 9. Effective date.
19 This act shall take effect in 60 days.
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