PRINTER'S NO. 354
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
353
Session of
2021
INTRODUCED BY SCHWANK, COLLETT, FONTANA, HUGHES, KEARNEY,
STREET, SANTARSIERO, TARTAGLIONE, COSTA, CAPPELLETTI, KANE
AND MUTH, MARCH 10, 2021
REFERRED TO BANKING AND INSURANCE, MARCH 10, 2021
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 women face an unintended pregnancy, representing nearly
half of all pregnancies in the United States. In 2014, forty
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percent of all pregnancies in Pennsylvania were unintended.
(2) By reducing rates of unintended pregnancy, contraception
improves women's health and well-being, reduces infant morbidity
and mortality and reduces the need for abortion.
(3) Research shows that dispensing of contraceptive drugs to
a twelve-month supply at one time has numerous benefits,
including, but not limited to, reducing the rate of unintended
pregnancy by thirty percent, 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.
(4) 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.
(5) The Patient Protection and Affordable Care Act (Public
Law 111-148, 124 Stat. 119) and subsequent Federal regulations
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 prescription 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.
(6) On October 5, 2017, the Federal Government proposed new
rules under the Patient Protection and Affordable Care Act that
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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 employes or students by refusing to cover some or all
contraceptive services in their health plans. The rules also
eliminated an accommodation for employes 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.
(7) The new rules issued leave two million five hundred
thousand women in Pennsylvania without equitable and affordable
access to contraception and without the ability to control their
reproductive futures and will adversely affect their health and
well-being.
(8) On July 8, 2020, following a legal challenge by the
Commonwealth of Pennsylvania and State of New Jersey, the United
States Supreme Court ruled in favor of the then-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
objects to birth control on religious or moral grounds.
(9) The loss of no-cost contraceptive coverage
disproportionately impacts women of color who, due to long-
standing structural inequalities, are more likely to hold low-
wage jobs and rely on employer-sponsored health plans. Women of
color are often the sole or primary breadwinners for their
families and will be forced to decide between paying for their
birth control or paying their rent and feeding their families.
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(10) 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.
(11) 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.
(12) The Commonwealth has a compelling interest in ensuring
that Pennsylvanians have equitable access to contraceptive
services and promoting equitable insurance coverage of
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 and 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 any prior authorization, utilization review,
step-therapy requirements or any other restriction or delay on
the coverage required.
( 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.
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(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
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.
(c) Coverage requirements for an insured under this section
must also be provided to an insured's covered spouse or domestic
partner and covered non-spouse 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
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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
migraines, that is necessary to preserve the life or health 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 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 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 twelve-month period.
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(2) An insurer may provide coverage for a supply of
contraceptive drugs, devices or other products that is for less
than a twelve-month 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.
(h) An insurer:
(1) Shall provide coverage without a prescription for
dispensation of a minimum of a three-month supply of the
contraceptive drugs, devices or other products, unless the
patient 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.
(i) (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;
(iii) primarily serves individuals who share the religious
tenets of the employer.
(2) The Insurance Department shall develop a timely and
efficient process for responding to requests submitted under
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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.
(j) 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
handle the complaint consistent with 2 Pa.C.S. (relating to
administrative law and procedure) and address a violation
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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.
(2) (Reserved).
( k ) 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.
(iv) Tubal ligation.
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(v) Voluntary sterilization implant for women.
(vi) Voluntary sterilization surgery for men.
(vii) Copper intrauterine device.
(viii) Intrauterine device with progestin.
(ix) Implantable rod.
(x) Contraceptive shot or injection.
(xi) Combined oral contraceptives.
(xii) Extended or continuous use oral contraceptives.
(xiii) Progestin-only oral contraceptives.
(xiv) Patch.
(xv) Vaginal ring.
(xvi) Diaphragm with spermicide.
(xvii) Sponge with spermicide.
(xviii) Cervical cap with spermicide.
(xix) Male and female condoms.
(xx) Spermicide alone.
(xxi) Vasectomy.
(xxii) Ulipristal acetate.
(xxiii) Levonorgestrel emergency contraception.
(xxiv) 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.
"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,
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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) The term 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. ยง 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.
(C) Limited benefit.
(D) Credit.
(E) Dental.
(F) Vision.
(G) Specified disease.
(H) Medicare supplement.
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(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
contraceptive drug, product or service and individual or group
family planning counseling.
"Therapeutic equivalent" means a drug, device or other
product which:
(1) Can be expected to have the same clinical effect and
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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 standards 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.
Section 2. This act shall take effect in 180 days.
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