PRINTER'S NO. 1330
No. 1094 Session of 1999
INTRODUCED BY SCHWARTZ, KUKOVICH, EARLL, HUGHES, KITCHEN AND DENT, SEPTEMBER 24, 1999
REFERRED TO BANKING AND INSURANCE, SEPTEMBER 24, 1999
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, approximately 3,600,000 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 is estimated at $1.78 per employee per month. 3 (4) To defray their medical expenses, most women in the 4 United States, including two-thirds of women of childbearing 5 age, rely on some form of private, employment-related 6 insurance which they receive through either their own 7 employer or a family member's employer. 8 (5) Although 97% of typical fee-for-service insurance 9 policies written for large groups or preferred provider 10 organizations cover prescription drugs and 92% of these 11 policies cover prescription medical devices, including drugs 12 and devices used exclusively by men, 49% of these policies 13 cover no reversible method of contraception at all. Moreover, 14 only 15% of these policies cover all five methods of FDA- 15 approved contraception. 16 (6) Although the vast majority of typical fee-for- 17 service insurance policies written for large groups or 18 preferred provider organizations cover outpatient medical and 19 counseling services, the majority of these policies fail to 20 cover outpatient medical and counseling services necessary 21 for the effective use of contraception. 22 (7) Health insurance policies that fail to cover 23 prescription contraception and related medical and counseling 24 services discriminate against women and place effective forms 25 of contraception beyond the financial reach of many families. 26 Women of reproductive age spend 68% more than men on out-of- 27 pocket health care costs. Contraceptive drugs, devices and 28 related medical and counseling services account for much of 29 this difference. 30 (8) This act affects the business of insurance. The 19990S1094B1330 - 2 -
1 requirements of this act govern entities within the insurance 2 industry that provide health insurance policies as defined by 3 this act. The provisions of this act transfer and spread an 4 insured's risk and are an integral part of the policy 5 relationship between the insurer and the insured. 6 Section 3. Definitions. 7 The following words and phrases when used in this act shall 8 have the meanings given to them in this section unless the 9 context clearly indicates otherwise: 10 "Commissioner." The Insurance Commissioner of the 11 Commonwealth. 12 "Health insurance policy." A policy, agreement, contract, 13 certificate, indemnity plan, suretyship or annuity issued, 14 proposed for issuance or intended for issuance by an insurer, 15 including endorsements, supplements or riders to an insurance 16 policy, contract or plan, that provides health coverage to an 17 insured and that is issued, delivered, amended or renewed in 18 this Commonwealth on or after the effective date of this act. 19 The term does not include short-term travel or accident-only 20 policies, workers' compensation or short-term nonrenewable 21 policies of not more than six months' duration. A policy located 22 or documented outside this Commonwealth is subject to the 23 requirements of this act if it receives, processes, adjudicates, 24 pays or denies claims for drugs, devices or medical or 25 counseling services submitted on behalf of an insured who 26 resides in or receives drugs, devices or services in this 27 Commonwealth. 28 "Insured." A party named on a health insurance policy, 29 including an individual, corporation, partnership, association, 30 unincorporated organization or any similar entity, as the person 19990S1094B1330 - 3 -
1 with legal rights to the coverage provided by the health 2 insurance policy. For group insurance, the term includes a 3 person who is a beneficiary covered by a group health insurance 4 policy. 5 "Insurer." An individual, corporation, association, 6 partnership, reciprocal exchange, interinsurer, Lloyds insurer, 7 fraternal benefit society and any other legal entity engaged in 8 the business of insurance, including agents, brokers, adjusters 9 and third-party administrators. The term also includes a person 10 who contracts on a risk-assuming basis to provide, deliver, 11 arrange for, pay for or reimburse any of the cost of health care 12 services, including, but not limited to, health plan 13 corporations as defined in 40 Pa.C.S. Chs. 61 (relating to 14 hospital plan corporations) and 63 (relating to professional 15 health services plan corporations), beneficial societies as 16 defined in 40 Pa.C.S. Ch. 67 (relating to beneficial societies), 17 fraternal benefit societies as defined in the act of December 18 14, 1992 (P.L.835, No.134), known as the Fraternal Benefit 19 Societies Code, health maintenance organizations as defined in 20 the act of December 29, 1972 (P.L.1701, No.364), known as the 21 Health Maintenance Organization Act, and preferred provider 22 organizations as defined in section 630 of the act of May 17, 23 1921 (P.L.682, No.284), known as The Insurance Company Law of 24 1921, and 31 Pa. Code § 152.2 (relating to definitions). 25 "Limitation." Any of the following: 26 (1) Any copayment, deductible or other cost-sharing 27 mechanism, or premium differential, rules or regulations that 28 establish the type of professionals that may prescribe 29 prescription drugs or devices, utilization review provisions 30 and limits on the volume of prescription drugs or devices 19990S1094B1330 - 4 -
1 that may be obtained on the basis of a single consultation 2 with a professional. 3 (2) Requirements or procedures relating to timing of 4 payments or reimbursement by insurers 5 (3) Requirements relating to second opinions or 6 preauthorizations prior to coverage. 7 "Outpatient medical or counseling services necessary for the 8 effective use of contraception." The term includes, but is not 9 limited to, examinations, procedures and medical and counseling 10 services provided on an outpatient basis, and services for 11 initial and periodic comprehensive physical examinations, 12 medical, laboratory and radiology services warranted by the 13 initial and periodic examinations or by the history, physical 14 findings or risk factors, including medical services necessary 15 for the insertion and removal of any contraceptive drug or 16 device and individual or group family planning counseling. 17 Coverage for the comprehensive health exam shall be consistent 18 with the recommendations of the appropriate medical specialty 19 organizations and shall be made under terms and conditions 20 applicable to other coverage. 21 "Prescription contraceptive drug or device approved by the 22 Food and Drug Administration." Any regime of a prescription 23 contraceptive drug and any regime of a prescription 24 contraceptive device approved by the Food and Drug 25 Administration, as well as any generic equivalent approved as 26 substitutable by the Food and Drug Administration. 27 Section 4. Requirements for coverage. 28 A health insurance policy shall not: 29 (1) Exclude or restrict coverage for any prescription 30 contraceptive drug approved by the Food and Drug 19990S1094B1330 - 5 -
1 Administration, if the policy provides coverage for other 2 prescription drugs. 3 (2) Exclude or restrict coverage for a prescription 4 contraceptive device approved by the Food and Drug 5 Administration, if the policy provides coverage for other 6 prescription devices. 7 (3) Exclude or restrict coverage for outpatient medical 8 or counseling services necessary for the effective use of 9 contraception, if the policy provides coverage for other 10 outpatient medical or counseling services. 11 (4) Deny to any individual eligibility or continued 12 eligibility to enroll or to renew coverage under the terms of 13 the policy because of the individual's past, present or 14 future use of contraceptive drugs, devices or medical or 15 counseling services that are required by this act. 16 (5) Provide monetary payments or rebates to an insured 17 to encourage the insured to accept less than the minimum 18 coverage required by this act. 19 (6) Penalize or otherwise reduce or limit the 20 reimbursement of a health care professional because that 21 professional has in the past or will in the future prescribe 22 contraceptive drugs or devices, or provide medical or 23 counseling services that are required by this act. 24 (7) Provide monetary or other incentives to a health 25 care professional to withhold from an insured contraceptive 26 drugs or devices or medical or counseling services that are 27 required by this act. 28 Section 5. Construction. 29 Nothing in this act shall be construed as: 30 (1) Preventing a health insurance policy from imposing a 19990S1094B1330 - 6 -
1 limitation in relation to: 2 (i) Coverage for prescription contraceptive drugs, 3 provided that the limitation for this coverage is not 4 greater than or different from limitations imposed under 5 general terms and conditions applicable to all other 6 prescription drugs covered under the policy. 7 (ii) Coverage for prescription contraceptive 8 devices, provided that the limitation for this coverage 9 is not greater than or different from limitations imposed 10 under general terms and conditions applicable to all 11 other prescription devices covered under the policy. 12 (iii) Coverage for outpatient medical or counseling 13 services necessary for the effective use of 14 contraception, provided that the limitation for this 15 coverage is not greater than or different from 16 limitations imposed under general terms and conditions 17 applicable to all other outpatient medical or counseling 18 services covered under the policy. 19 (2) Requiring a health insurance policy to cover 20 experimental prescription contraceptive drugs or devices or 21 experimental outpatient medical or counseling services 22 necessary for the effective use of contraception, except to 23 the extent that the policy provides coverage for other 24 experimental prescription drugs or devices or experimental 25 outpatient medical or counseling services. 26 (3) Requiring coverage for prescription contraceptive 27 drugs, devices or medical or counseling services required by 28 this act in any policy that does not otherwise provide 29 coverage for prescription drugs or devices or outpatient 30 medical or counseling services. 19990S1094B1330 - 7 -
1 Section 6. Enforcement. 2 (a) Action by applicant.--An applicant or an insured who 3 believes that he has been adversely affected by an act or 4 practice of an insurer in violation of this act may: 5 (1) file a complaint with the commissioner, who shall 6 handle the complaint consistent with 2 Pa.C.S. Ch. 5 Subch. A 7 (relating to practice and procedure of Commonwealth agencies) 8 and Ch. 7 Subch. A (relating to judicial review of 9 Commonwealth agency action) and address any violation through 10 means appropriate to the nature and extent of the violation, 11 which may include cease-and-desist orders, injunctive relief, 12 restitution, suspension or revocation of certificates of 13 authority or licenses, civil penalties and reimbursement of 14 costs and reasonable attorney fees incurred by the aggrieved 15 individual in bringing the complaint, or any combination of 16 these; or 17 (2) file a civil action against the insurer in a court 18 of original jurisdiction, which, upon proof of the act's 19 violation by a preponderance of the evidence, shall award 20 appropriate relief, including, but not limited to, temporary, 21 preliminary or permanent injunctive relief, compensatory and 22 punitive damages, as well as the costs of suit and reasonable 23 attorney fees for the aggrieved individual's attorneys and 24 expert witnesses. The aggrieved individual may elect, at any 25 time prior to the rendering of final judgment, to recover in 26 lieu of actual damages an award of statutory damages in the 27 amount of $5,000 for each violation. 28 (b) Civil action.-- 29 (1) If an aggrieved individual elects to file a 30 complaint with the commissioner pursuant to subsection 19990S1094B1330 - 8 -
1 (a)(1), that individual's right of action in a court of 2 original jurisdiction shall not be foreclosed. 3 (2) If the commissioner has not secured a resolution of 4 the complaint acceptable to the complainant within 180 days 5 after the filing of the complaint, the complainant may file a 6 civil action pursuant to subsection (a)(2). Upon the filing 7 of a civil action, all proceedings before the commissioner 8 shall terminate. 9 Section 7. Notice of change. 10 The enactment of this act shall be treated as a material 11 notification of a change in the terms of a health insurance 12 policy. 13 Section 8. Severability. 14 The provisions of this act are severable. If any provision of 15 this act or its application to any person or circumstance is 16 held invalid, the invalidity shall not affect other provisions 17 or applications of this act which can be given effect without 18 the invalid provision or application. 19 Section 9. Effective date. 20 This act shall take effect in 60 days. F28L35DMS/19990S1094B1330 - 9 -