Regular Session 2021-2022 House Bill 2454 P.N. 2910

PRINTER'S NO. 2910

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

2454

Session of

2022

INTRODUCED BY KRUEGER, T. DAVIS, MADDEN, HOHENSTEIN,

SCHLOSSBERG, RABB, O'MARA, HANBIDGE, N. NELSON, ISAACSON,

KRAJEWSKI, HILL-EVANS, SANCHEZ, FIEDLER, GUENST, SIMS,

CEPHAS, KINKEAD, INNAMORATO, KINSEY, FRANKEL, GALLOWAY,

SHUSTERMAN, McCLINTON, McNEILL, HERRIN, A. DAVIS, PARKER,

DELLOSO, ROZZI AND WARREN, MARCH 31, 2022

REFERRED TO COMMITTEE ON INSURANCE, MARCH 31, 2022

AN ACT

Amending the act of May 17, 1921 (P.L.682, No.284), entitled "An

act relating to insurance; amending, revising, and

consolidating the law providing for the incorporation of

insurance companies, and the regulation, supervision, and

protection of home and foreign insurance companies, Lloyds

associations, reciprocal and inter-insurance exchanges, and

fire insurance rating bureaus, and the regulation and

supervision of insurance carried by such companies,

associations, and exchanges, including insurance carried by

the State Workmen's Insurance Fund; providing penalties; and

repealing existing laws," in casualty insurance, providing

for contraceptive coverage.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The act of May 17, 1921 (P.L.682, No.284), known

as The Insurance Company Law of 1921, is amended by adding a

section to read:

Section 635.8. Contraceptive Coverage.--(a) The General

Assembly hereby finds that:

(1) Each year, approximately two million eight hundred

thousand (2,800,000) people who choose to prevent pregnancy face

an unintended pregnancy, representing nearly half of all

pregnancies in the United States. In 2014, forty per centum of

all pregnancies in Pennsylvania were unintended.

(2) Under the current laws in Pennsylvania, the Commonwealth

is unable to provide accurate numbers for the amount of

unintended pregnancies by transgender men and nonbinary

Pennsylvanians, likely making the forty per centum estimation

under paragraph (1) much higher. Data and research that would

provide the actual number is not available. Gender identity and

expression should never be a barrier to access to the health

care that a person requires.

(3) By reducing rates of unintended pregnancy, contraception

improves women's health and well-being and reduces infant

morbidity and mortality.

(4) Research shows that dispensing contraceptives intended

to last the patient for a twelve-month duration at one time,

once it is determined the chosen contraceptive works for the

person, has numerous benefits, including, but not limited to,

reducing the rate of unintended pregnancy by thirty per centum,

increasing the rate of effective and continuous use of

contraception and decreasing costs per client to insurers by

reducing the number of pregnancy tests and pregnancies.

(5) Medical management techniques, including denials, step

therapy or prior authorization in public and private health care

coverage, can result in delays in access to or denial of the

most effective contraceptive methods, which deprive women of

their reproductive autonomy and increase the rate of unintended

pregnancy.

(6) The Patient Protection and Affordable Care Act (Public

Law 111-148, 124 Stat. 119) and subsequent Federal regulations

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made contraceptive coverage a national policy by requiring most

private health insurance plans to provide coverage for a broad

range of preventive services without cost sharing, including

FDA-approved contraceptives and related services. The Patient

Protection and Affordable Care Act has exemptions and limits

that leave gaps in coverage. By 2018, thirty states and the

District of Columbia adopted laws that require state-regulated

insurance plans to cover contraceptives, with a range of

coverage and cost-sharing requirements and exemptions, even

though the Patient Protection and Affordable Care Act does not

require coverage with no cost-sharing for a vasectomy or male

condoms. Limiting coverage to women only creates concerns for

transgender and nonbinary people.

(7) On October 5, 2017, the Federal Government proposed new

rules under the Patient Protection and Affordable Care Act that

allow private employers and educational institutions that do not

agree with the use of contraception to be exempt from the

contraceptive requirement and to impose religious or moral

beliefs on employees or students by refusing to cover some or

all contraceptive services in their health plans. The rules also

effectively eliminated an accommodation for employees of exempt

entities to receive contraceptive services paid for directly by

insurers through an accommodation and made it completely

voluntary. In 2018, the Federal Government finalized rules that

are substantially identical to the proposed regulations from

October 2017.

(8) The new rules leave two million five hundred thousand

(2,500,000) contraceptive users, including transgender and

nonbinary people, in Pennsylvania without equitable and

affordable access to contraception and without the ability to

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control their reproductive futures and will adversely affect

their health and well-being.

(9) On July 8, 2020, following a legal challenge by the

Commonwealth of Pennsylvania and the State of New Jersey, the

United States Supreme Court ruled in favor of the Trump

Administration's rules that allow virtually any employer and

university to opt-out of the Patient Protection and Affordable

Care Act mandate to provide contraceptive coverage if the

employer or university object to birth control on religious or

moral grounds.

(10) The loss of no-cost contraceptive coverage

disproportionately impacts low-income people, particularly women

of color, due to long-standing structural inequalities. Women of

color are often the sole or primary breadwinners for their

families and may be forced to decide between paying for their

birth control or paying for other basic needs, including rent

and feeding their families.

(11) The COVID-19 pandemic has revealed the inequitable

effects of the new Federal rules on the health and economic

security of women of color, who shoulder essential jobs on the

front lines and face greater risk of COVID-19 infection.

(12) The ability to manage pregnancy is critical amid the

COVID-19 pandemic. Specifically, data on pregnancy and COVID-19

from the Centers for Disease Control and Prevention indicate

that pregnant women with COVID-19 are at greater risk for severe

illness that requires hospitalization and intensive care unit

admission.

(13) The Commonwealth has a compelling interest in ensuring

that Pennsylvanians have equitable access to contraceptive

services and promoting equitable insurance coverage of

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contraceptive services as specified in this section is the least

restrictive means of furthering this compelling interest.

(b) An insurer that issues, delivers or renews a health

insurance policy in this Commonwealth on or after the effective

date of this section shall provide coverage for all

contraceptive drugs, devices or other products.

( b.1) (1) Except as provided in paragraphs (2) and (3), a n

insurer subject to the coverage required under this section may

not:

(i) I mpose prior authorization, utilization review or step-

therapy requirements that unduly restrict or delay coverage or

limit a person's freedom of choice of contraceptive drugs,

devices or other products .

( ii) I mpose a copayment, coinsurance, deductible or an y

other cost- sharing requirement for coverage of a contraceptive

drug , product and service .

(iii) Require a prescription to provide coverage of over-

the-counter contraceptive drugs, devices or other products.

(2) (i) If the FDA has designated a therapeutic equivalent

to another contraceptive drug , product or service that is

available under a policy or contract , the insurer shall include

either the original contraceptive drug, product or service or,

at a minimum, one therapeutic equivalent. If there is no

therapeutic equivalent, the insurer must cover the original

contraceptive drug, product or service.

(ii) If the covered contraceptive drug, product or service

is deemed medically inadvisable by the insured's health care

provider, the health insurance policy shall provide coverage for

a medically appropriate contraceptive drug, product or service

that is prescribed by the insured's provider without a

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copayment, coinsurance, deductible or another cost-sharing

mechanism.

(3) If a contraceptive drug, product or service is provided

by an out-of-network provider, the insurer must provide coverage

without imposing any cost-sharing requirement on the insurer if:

(i) there is no in-network provider to furnish the

contraceptive drug, product or service that is geographically

accessible or accessible in a reasonable amount of time, as set

forth in 28 Pa. Code Ch. 9 Subch. H (relating to availability

and access); or

(ii) an in-network provider is unable or unwilling to

provide the service in a timely manner.

must also be provided to an insured's covered spouse or domestic

partner and covered nonspouse dependents.

(d) Nothing in this section shall be construed to exclude

coverage for contraceptive drugs, devices or other products

prescribed by a provider, acting within the provider's scope of

practice, for reasons other than contraceptive purposes,

including decreasing the risk of ovarian cancer or eliminating

symptoms of menstruation, including, but not limited to, heavy

menstrual bleeding, irregular bleeding, menstrual cramps,

perimenstrual headaches, difficulty with hygiene and quality of

life among patients with cognitive or physical limitations and

prevention of heavy menstrual bleeding among patients with

cancer undergoing treatments that may increase menstrual flow

and anemia, ovarian cysts, endometriosis, menopause, polycystic

ovarian syndrome, amenorrhea, gender dysphoria or chronic

medical problems that worsen during menses, including, but not

limited to, inflammatory bowel disease, gastroparesis and

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migraines, to contribute to the life, health or well-being of an

insured.

(e) An insurer that limits coverage of contraceptive drugs,

devices or other products in a formulary shall provide for

coverage for a contraceptive drug, product and service that is

not in the formulary if, in the judgment of the health care

provider, the formulary does not include a contraceptive drug,

device or other product that is medically necessary.

(f) The insurer shall establish and implement an easily

accessible, transparent and sufficiently expedient process,

available in the insured's native language, by which an insured

may receive a contraceptive drug, product and service not in the

insurer's formulary in accordance with this section.

(g) The insurer shall recognize a spouse as an insured

dependent who may obtain health care without the consent or

knowledge of the spouse who is the policyholder.

(h) The following apply:

(1) Upon the written request of an insured dependent who may

obtain health care without the consent of a parent or legal

guardian pursuant to Federal or State law to obtain

contraceptive drugs, devices or other products, an insurer shall

not disclose protected personal health information concerning

the insured dependent's receipt of such drugs, devices or other

products to the policyholder or any other insured, including

calling the shared home to confirm an appointment or sending a

paper or electronic communication, an appointment notice, a bill

or explanation of benefits, a claim denial, a request for

additional information about a claim, a notice of a contested

claim, the name and address of a provider, a description of

services provided and other visit information unless explicitly

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authorized by the insured dependent.

(2) An insurer who has received a request for confidential

communications shall not require the insured dependent to obtain

the policyholder's or other covered person's authorization to

receive health care services or to submit a claim as to health

care which the insured dependent may obtain without parental

consent under Federal or State law.

(3) Insurers shall promptly inform insured dependents upon

their enrollment of the right to choose their preferred method

of communications, including to the insured dependent's address,

electronic address, alternate address or telephone number, or to

withhold such communications.

(4) The Insurance Department shall prepare a standard, easy-

to-understand form for insurers to provide to insured dependents

to notify insured dependents of their right to request

confidential communications and their preferred method of

insurer communications and allow them to request confidential

communications through use of the standard form, other written,

electronic or oral communication in person or by telephone.

(5) Insurers shall implement requests for confidential

communications within three business days of receipt of a

request and thereafter make all communications to the dependent

insured's election unless the insured issues a revocation of the

request.

( i ) The following shall apply to dispensing:

(1) Except as provided in paragraph (2), an insurer shall

provide coverage for a single dispensing to an insured of a

supply of contraceptive drugs, devices or other products for up

to a one-year period.

(2) An insurer may provide coverage for a supply of

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contraceptive drugs, devices or other products that is for less

than a one-year period if:

(i) the insured requests a lesser dispensing of the

contraceptive drugs, devices or other products at one time; or

(ii) the prescribing provider instructs that the insured

receive a lesser dispensing of the contraceptive drugs, devices

or other products at one time.

(3) A provider may not impose a limitation under paragraph

(2) against the insured's wishes.

(j) An insurer:

(1) Shall provide coverage without a prescription for

dispensation of contraceptives, devices or other products

intended to last the insured for a twelve-month duration once it

is determined the chosen contraceptive works for the person,

unless the insured requests a lesser dispensing of the

contraceptive drugs, devices or other products.

(2) May not discriminate in the delivery or coverage of

contraceptive drugs, devices or other products based on the

covered person's actual or perceived race, color, national

origin, sex, sexual orientation, gender identity or expression,

age or disability.

(k) (1) A religious employer may request an exclusion from

the coverage requirement under this section by submitting a

written request to the Insurance Department, if the employer:

(i) is a not-for-profit organization that has the purpose of

inculcating religious values;

(ii) primarily employs individuals who share the religious

tenets of the employer; and

(iii) primarily serves individuals who share the religious

tenets of the employer.

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(2) The Insurance Department shall develop a timely and

efficient process for responding to requests submitted under

this subsection.

(3) A religious employer granted an exclusion under this

subsection shall provide written notice to prospective insureds

prior to their enrollment in the health insurance policy,

listing the contraceptive drugs, devices or other products that

the employer refuses to cover for religious reasons.

(4) The exclusion from coverage under this subsection shall

not apply to a contraceptive drug, device or other product which

is used for purposes other than contraception.

(5) If a religious employer is granted an exclusion under

this subsection:

(i) Each insured covered under the health insurance policy

shall have the right to directly purchase coverage for the cost

of contraceptive drugs, devices or other products from the

insurer which issued the policy at the prevailing small group

community rate whether the insured is part of a small group.

(ii) The insurer that provides the coverage shall provide

written notice to insureds upon enrollment with the insurer of

their right to directly purchase coverage for the cost of

contraceptive drugs, devices or other products. The notice shall

also advise the enrollees of the additional premium for coverage

of contraceptive drugs, devices or other products.

(l) The following shall apply regarding enforcement:

(1) A prospective insured or insured who believes that the

prospective insured or insured has been adversely affected by an

act or practice of an insurer in violation of this section may

file any of the following:

(i) A complaint with the Insurance Commissioner, who shall

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handle the complaint consistent with 2 Pa.C.S. (relating to

administrative law and procedure) and address a violation

through means appropriate to the nature and extent of the

violation, which may include a cease and desist order,

injunctive relief, restitution, suspension or revocation of a

certificate of authority or license, civil penalties,

reimbursement of costs or reasonable attorney fees incurred by

the aggrieved individual in bringing the complaint, or any

combination of these.

(ii) A civil action against the insurer in a State court of

original jurisdiction, which, upon proof of the violation of

this section by a preponderance of the evidence, shall award

appropriate relief, including temporary, preliminary or

permanent injunctive relief, compensatory or punitive damages,

the costs of suit, reasonable attorney fees and reasonable fees

for the aggrieved individual's expert witnesses. At any time

prior to the rendering of final judgment, the aggrieved

individual may elect to recover, in lieu of actual damages, an

award of statutory damages in the amount of five thousand

dollars for each violation.

( m ) As used in this section:

"Contraceptive drugs, devices or other products" means the

following:

(1) The term includes, but is not limited to:

(i) Medical and counseling services.

(ii) All regimens of over-the-counter and prescription

contraceptive drugs approved by the FDA.

(iii) All regimens of prescription contraceptive devices

approved by the FDA and any generic equivalent approved as

substitutable by the FDA.

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(iv) Tubal ligation.

(v) Voluntary sterilization implant for transgender and

nonbinary people.

(vi) Voluntary sterilization surgery for transgender and

nonbinary people.

(vii) Voluntary sterilization implant for women.

(viii) Voluntary sterilization surgery for men.

(ix) Copper intrauterine device.

(x) Intrauterine device with progestin.

(xi) Implantable rod.

(xii) Contraceptive shot or injection.

(xiii) Combined oral contraceptives.

(xiv) Extended or continuous use oral contraceptives.

(xv) Progestin-only oral contraceptives.

(xvi) Patch.

(xvii) Vaginal ring.

(xviii) Diaphragm with spermicide.

(xix) Sponge with spermicide.

(xx) Cervical cap with spermicide.

(xxi) External and internal condoms.

(xxii) Spermicide alone.

(xxiii) Vasectomy.

(xxiv) Ulipristal acetate.

(xxv) Levonorgestrel emergency contraception.

(xxvi) Any additional contraceptive drugs, products or

services approved by the FDA.

(2) The term does not include a drug, device or other

product that has been recalled for safety reasons or withdrawn

from the market.

"FDA" means the United States Food and Drug Administration.

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"Health care provider" means a person who is licensed,

certified or otherwise lawfully authorized to provide health

care in the ordinary course of business.

"Health insurance policy" means the following:

(1) An individual or group health insurance policy,

subscriber contract, certificate or plan which provides medical

or health care coverage by a health care facility or licensed

health care provider which is offered by or is governed under

this act or any of the following:

(i) Subarticle (f) of Article IV of the act of June 13, 1967

(P.L.31, No.21), known as the "Human Services Code," and Article

XXIII of this act.

(ii) The act of December 29, 1972 (P.L.1701, No.364), known

as the "Health Maintenance Organization Act."

(iii) The act of May 18, 1976 (P.L.123, No.54), known as the

"Individual Accident and Sickness Insurance Minimum Standards

Act."

(iv) A nonprofit corporation subject to 40 Pa.C.S. Ch. 61

(relating to hospital plan corporations) or 63 (relating to

professional health services plan corporations).

(2) Does not include any of the following:

(i) A health benefit plan that is a grandfathered health

plan, as defined in section 1251 of the Patient Protection and

Affordable Care Act (Public Law 111-148, 42 U.S.C. § 18011) and

any rules, regulations or guidance issued under that act.

(ii) Any of the following types of insurance or a

combination of any of the following types of insurance:

(A) Accident only.

(B) Fixed indemnity.

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(D) Credit.

(E) Dental.

(F) Vision.

(G) Specified disease.

(H) Medicare supplement.

(I) Civilian Health and Medical Program of the Uniformed

Services (CHAMPUS) supplement.

(J) Long-term care or disability income.

(K) Workers' compensation.

(L) Automobile medical payment.

"Insurer" means an entity that issues an individual or group

health insurance policy.

"Medical or counseling services" includes, but is not limited

to:

(1) Examinations, procedures and medical and counseling

services related to the provision or use of contraception which

are provided on an inpatient or outpatient basis, including

consultations.

(2) Services for initial and periodic comprehensive physical

examinations, procedures, ultrasound, anesthesia, patient

education, individual counseling, group family counseling,

device insertions and removal, follow-up care and side-effect

management. Coverage for the examinations shall be consistent

with the recommendations of the appropriate medical specialty

organizations and shall be made under terms and conditions

applicable to other coverage.

(3) Medical, laboratory and radiology services warranted by

initial and periodic comprehensive physical examinations or by

the history, physical findings or risk factors, including

medical services necessary for the insertion and removal of any

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contraceptive drug, product or service and individual or group

family planning counseling.

"Nonbinary" means denoting or relating to a gender identity

that is not defined in terms of a male or female binary.

"Therapeutic equivalent" means a drug, device or other

product which:

(1) Can be expected to have the same clinical effect and

safety profile when administered to a patient under the

conditions specified in the labeling.

(2) Is FDA-approved as safe and effective.

(3) Is a pharmaceutical equivalent which:

(i) contains identical amounts of the same active drug

ingredient in the same dosage form and route of administration;

and

(ii) meets compendial or other applicable standards of

strength, quality, purity and identity.

(4) Is bioequivalent which:

(i) does not present a known or potential bioequivalence

problem and meets an acceptable in vitro standard; or

(ii) is shown to meet an appropriate bioequivalence standard

if it does present a known or potential bioequivalence problem.

(5) Is adequately labeled.

(6) Is manufactured in compliance with current good

manufacturing practice regulations.

"Transgender" means denoting or relating to a person whose

sense of gender does not correspond with their sex assigned at

birth.

Section 2. This act shall take effect in 180 days.

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