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From Health Law Daily, October 7, 2013

State mandates for insurance coverage of contraception before and after health reform

By Michelle L. Oxman, JD, LLM

Between 1999 and 2006, 28 states adopted requirements that group insurance policies cover drugs and devices prescribed for contraceptive purposes. The coverage requirement was viewed as a discriminatory remedy for women to prevent employer-sponsored insurance from excluding certain prescription drugs and devices for women while providing comprehensive coverage for men.

The most effective birth control methods available to women, i.e., pills, injectable medications, intrauterine devices, and diaphragms, are available only with a prescription. Yet, most group health insurance plans excluded contraception and related services, and this exclusion imposed extra costs on women. Women use more medical services than men during the years that they are at risk for pregnancy because of reproductive and gender-specific conditions. Further, they may need contraception for as long as 30 years.

Because the vast majority of the privately insured were covered by employer-sponsored insurance, the first efforts to address the issue focused on insurance as an employee benefit and the unequal value of the benefits provided to men and women. In 2000, the Equal Employment Opportunity Commission ruled that employer-sponsored coverage that excluded contraceptives and related services violated the Pregnancy Discrimination Act. Although some district courts agreed, the Eighth Circuit ruled that the need for contraception was not a “condition related to pregnancy” because contraception is medically indicated only before pregnancy occurs.

When Viagra entered the market in 1998, health insurers often covered the prescription while continuing to exclude coverage of contraceptives. This disparity lent support to the argument that the refusal to cover contraceptives was gender-based discrimination. A proposed Equity in Prescription Insurance and Contraceptive Coverage Act was introduced in Congress several times but never reached a vote.

State legislatures and some state agencies were more receptive to the argument. Maryland passed its contraceptive equity law in 1998. California enacted its Women’s Contraceptive Equity Act in 1999; the law became effective January 1, 2000. Seven other states also passed contraception coverage mandates in 1999. New York enacted its Women’s Health and Wellness Act in 2002. The most recent addition was Colorado in 2010.

The Patient Protection and Affordable Care Act (PPACA) amended section 2713 of the Public Health Service Act to provide that essential coverage will include certain preventive services without any cost sharing by the insured. The preventive services included are those rated A or B by the United States Preventive Services Task Force and any additional preventive services for women recommended in comprehensive guidelines issued by the Health Resources and Services Administration (HRSA). HRSA added contraceptives to the list based upon the recommendations in a report by the Institute of Medicine.

This White Paper will analyze the common features of states’ mandates concerning contraception coverage for women and briefly compare PPACA’s preventive services mandate to those of the states.

Read further, “State mandates for insurance coverage of contraception before and after health reform.”

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