BILL ANALYSIS Ó
AB 460
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Date of Hearing: April 30, 2013
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
AB 460 (Ammiano) - As Introduced: February 19, 2013
SUBJECT : Health care coverage: infertility.
SUMMARY : Requires coverage for the treatment of infertility to
be offered and provided without discrimination on the basis of
age, ancestry, color, disability, domestic partner status,
gender, gender expression, gender identity, genetic information,
marital status, national origin, race, religion, sex, or sexual
orientation.
EXISTING STATE LAW :
1)Establishes the Knox-Keene Health Care Service Plan Act of
1975 to regulate and license health plans and specialized
health plans by the Department of Managed Health Care (DMHC)
and provides for the regulation of health insurers by the
California Department of Insurance (CDI).
2)Requires health plan contracts and health insurance policies
to offer group coverage for the treatment of infertility, as
defined.
3)Requires group health plan contracts and disability insurance
policies to provide equal coverage to employers or guaranteed
associations, for the registered domestic partner of an
employee or subscriber to the same extent and subject to the
same terms and conditions as provided to a spouse of the
employee or subscriber, and inform employers and guaranteed
associations of this coverage. Prohibits a plan from offering
or providing coverage for a registered domestic partner that
is not equal to the coverage provided to the spouse of an
employee or subscriber.
4)Defines "domestic partners" as two adults who have chosen to
share one another's lives in an intimate and committed
relationship of mutual caring. Establishes domestic
partnerships in California when both persons file a
Declaration of Domestic Partnership with the Secretary of
State, and specific requirements are met. Affords domestic
partners the same rights, protections, benefits,
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responsibilities, obligations, and duties under the law,
whether derived from statutes, administrative regulations,
court rules, government policies, common law, or any other
provisions or sources of law, as are granted and imposed upon
spouses. Provides former and surviving domestic partners the
same rights, protections, benefits, responsibilities,
obligations, and duties to their partners as imposed upon
former and surviving spouses.
5)Requires every insurance policy that is issued, amended,
delivered, or renewed in California to provide coverage for
the domestic partner of an insured or policyholder that is
equal to the same terms and conditions offered to a spouse of
an insured or policy holder.
6)Establishes as California's essential health benefits (EHBs)
the Kaiser Small Group Health Maintenance Organization (HMO)
plan along with the following 10 Patient Protection and
Affordable Care Act mandated benefits:
a) Ambulatory patient services;
b) Emergency services;
c) Hospitalization;
d) Maternity and newborn care;
e) Mental health and substance use disorder services,
including behavioral health treatment;
f) Prescription drugs;
g) Rehabilitative and habilitative services and devices;
h) Laboratory services;
i) Preventive and wellness services and chronic disease
management; and,
j) Pediatric services, including oral and vision care.
7)Defines "infertility" as the presence of a demonstrated
condition recognized by a licensed physician and surgeon as a
cause of infertility, or the inability to conceive a pregnancy
or to carry a pregnancy to a live birth after a year or more
of regular sexual relations without contraception.
8)Defines "treatment for infertility" as procedures consistent
with established medical practices in the treatment of
infertility by licensed physicians and surgeons including, but
not limited to, diagnosis, diagnostic tests, medication,
surgery, and gamete intrafallopian transfer.
9)Defines "in vitro fertilization" (IVF) as the laboratory
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medical procedures involving the actual in vitro fertilization
process.
10)Defines in CDI regulations the following terms:
a) "Actual gender identity" means a person's internal sense
of being: male, female, a gender different from the gender
assigned to the person at birth, a transgender person, or
neither male nor female.
b) "Perceived gender identity" means an observer's
impression of another's internal sense of being: male,
female, a gender different from the gender assigned at
birth, a transgender person, or neither male nor female.
The term also includes an observer's impression that
another is: male, female, a gender different from the
gender assigned at birth, a transgender person, or neither
male nor female.
c) A "transgender person" is a person: who has, or has been
diagnosed with, gender identity disorder or gender
dysphoria; who has received health care services, including
counseling, related to gender transition; who adopts the
dress, appearance, or behavior of the opposite sex; or, who
otherwise identifies himself or herself as a gender
different from the gender assigned to that person at birth.
d) "Gender transition" means the process of changing one's
outward appearance, including physical sex characteristics,
to accord with his or her actual gender identity.
e) "Discrimination on the Basis of Actual or Perceived
Gender Identity" includes any of the following:
i) Denying, cancelling, limiting or refusing to issue
or renew an insurance policy on the basis of an insured's
or prospective insured's actual or perceived gender
identity, or for the reason that the insured or
prospective insured is a transgender person;
ii) Demanding or requiring a payment or premium that is
based in whole or in part on an insured's or prospective
insured's actual or perceived gender identity, or for the
reason that the insured or prospective insured is a
transgender person;
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iii) Designating an insured's or prospective insured's
actual or perceived gender identity, or the fact that an
insured or prospective insured is a transgender person,
as a preexisting condition for which coverage will be
denied or limited; or,
iv) Denying or limiting coverage, or denying a claim,
for services including but not limited to the following,
due to an insured's actual or perceived gender identity
or for the reason that the insured is a transgender
person:
(1) Health care services related to gender
transition if coverage is available for those services
under the policy when the services are not related to
gender transition, including but not limited to
hormone therapy, hysterectomy, mastectomy, and vocal
training; or,
(2) Any health care services that are ordinarily
or exclusively available to individuals of one sex
when the denial or limitation is due only to the fact
that the insured is enrolled as belonging to the other
sex or has undergone, or is in the process of
undergoing, gender transition.
FISCAL EFFECT : This bill has not yet been analyzed by a fiscal
committee.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, insurance
companies are not complying with current state law that
prohibits patients from being treated differently based on
sex, marital status, and sexual orientation and current law
that requires registered domestic partners to be treated as
spouses in regard to fertility treatments. The author adds
that the goal of this bill is to clarify the application of
current law as it pertains to same-sex married couples and
domestic partners and the non-compliant practices currently
used by insurance providers in infertility treatments.
The author explains that infertility is the state of being
unable to produce offspring; state law defines infertility as:
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a) the presence of a demonstrated condition recognized by a
licensed physician or surgeon as a cause of infertility; or,
b) the inability to conceive a pregnancy or to carry a
pregnancy to a live birth after a year or more of regular
sexual relations without contraception. Under the current
definition of infertility heterosexual married couples are
typically treated as a unit for infertility. If a husband has
a low or no sperm count, both the husband and wife are
diagnosed with primary male factor infertility because the
spouse does not produce the gamete needed for conception.
Assisted reproductive technology is used to attain a pregnancy
where the wife is ultimately a patient regardless of her
female fertility status. If the couple's health insurance has
infertility coverage, they are able to access it under the
current definition of infertility. The author argues that an
example of how the current nondiscrimination laws are not
being adhered to is when an individual or couple are unable to
conceive and attempt to access their infertility coverage and
are denied based on not having an opposite sex married partner
with whom to have one year of regular sexual relations without
conception. The author concludes that there are many insurers
who currently cover all their insureds with infertility
coverage in their plan and this bill does not affect insurers
who are in compliance with existing nondiscrimination laws.
2)DMHC LETTER . On April 9, 2013, DMHC issued a letter to health
plans to remind them of their obligations under the Insurance
Gender Nondiscrimination Act (IGNA), which prohibits health
plans from discriminating against an individual's gender,
including gender identity or gender expression. This
prohibition extends to the availability of health coverage and
the provision of benefits. IGNA prohibits health plans from
denying a person a contract (health coverage) or from limiting
benefits because of the individual's sex. Sex is defined to
include gender, gender identity, and gender expression. IGNA
requires health plans to provide transgender individuals with
the same contracts and coverage benefits that are available to
non-transgender individuals. IGNA does not prohibit health
plans from applying nondiscrimination exclusions or
limitations, conducting medical necessity determinations, or
applying appropriate utilization management criteria on a
case-by-case basis with respect to specific requests for
transgender services. However, if a plan issues a denial
indicating that services are not medically necessary or that
the services do not meet the plan's utilization management
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criteria, the health plan's decision is subject to review
through the Independent Medical Review (IMR) process. The
letter directs health plans to review health plan documents,
revise any disallowed exclusions or limitations, and ensure
that individuals are not denied access to medically necessary
care because of the individual's gender, gender identity, or
gender expression.
In 2007, CDI issued a letter indicating that state law prohibits
life and disability insurance companies from discriminating on
the basis of sex in creation or maintenance of service
contracts or the provision of benefits or coverage. According
to the CDI letter, gender means sex, and includes a person's
gender identity and gender related appearance and behavior
whether or not stereotypically associated with the person's
assigned sex at birth. State law includes a legal obligation
for insurance companies and health plans to refrain from
discriminating against women, men, and transgender individuals
in the creation and maintenance of contracts and the provision
of services and benefits.
3)CALIFORNIA HEALTH BENEFITS REVIEW PROGRAM . The California's
Health Benefits Review Program (CHBRP) was created in response
to AB 1996 (Thomson), Chapter 795, Statutes of 2002, which
requests the University of California to assess legislation
proposing a mandated benefit or service, and prepare a written
analysis with relevant data on the public health, medical, and
economic impact of proposed health plan and health insurance
benefit mandate legislation
a) Medical Effectiveness . According to CHBRP, once the
cause of the infertility has been investigated, there are
four types of treatment options that can be offered:
surgery; medications; artificial insemination; and,
assisted reproductive technology. CHBRP indicates that the
medical reviews for this report summarize the literature on
the effects of insurance coverage or insurance mandates for
infertility treatment on utilization, pregnancy rates, and
live births of persons with infertility issues. CHBRP
indicates that there is a preponderance of evidence that
infertility treatment health insurance mandates are
associated with an increase in utilization of infertility
treatments. This association is strongest for "mandates to
cover" infertility treatments compared to "mandates to
offer" infertility treatments as an optional rider. There
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is a preponderance of evidence that IVF insurance mandates
are associated with a decrease in the number of embryos
transferred per IVF cycle, the number of births per IVF
cycle, and the likelihood of multiple births with IVF.
There is insufficient evidence to assess the impact of
infertility health insurance mandates on health outcomes
outside of the impact of IVF mandates. There is a
preponderance of evidence that private health insurance
coverage is associated with an increase in utilization of
infertility treatments.
b) Utilization, Cost, and Coverage Impacts . According to
CHBRP, an estimated 14.4 million enrollees would be subject
to this bill if it were enacted. The same number subject
to the current treatment mandate to offer. An estimated
10.1 million or 70% currently have coverage for at least
one type of treatment, including diagnosis, diagnostic
tests, surgeries, artificial insemination, gamete
intrafallopian transfers, or medication, and four million
of the 10.1 are aged 19-44. The impact of this bill is
unknown, so CHBRP was unable to estimate the marginal cost
impact, if any, of this bill. Of the four million
enrollees aged 19-44 estimated to have coverage for
infertility, an estimated: 1.12% utilize 413,000 outpatient
procedures for infertility; .007% utilize 1,100 inpatient
days for infertility; and, .52% utilize 81,000
prescriptions for infertility. The average cost for an
outpatient procedure is $135, for an inpatient day is
$4,954, and for a prescription is $695. This results in an
estimated $117 million in annual expenditures on treatment
for infertility by the four million enrollees aged 19-44
with coverage.
c) Public Health Impac t. CHBRP found no literature that
addressed discrimination on the basis of age, ancestry,
color, disability, domestic partner status, gender, gender
expression, gender identity, genetic information, marital
status, national origin, race, religion, sex, or sexual
orientation. CHBRP indicates the impact of this bill on
reducing gender disparities and reducing disparities among
racial and ethnic groups is unknown. CHBRP was unable to
identify studies quantifying costs or assessing the impact
on people related to their insurance characteristics, so
the impact on economic loss is unknown.
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4)EHBs . The Kaiser Small Group HMO 30 EHB benchmark plan for
California excludes coverage for the treatment of infertility,
therefore health insurance subject to EHB coverage
requirements are not required to cover treatment for
infertility. Since this bill does not change the current
infertility treatment mandate to offer, there is no
interaction with the EHBs, and the state would not be subject
to defray costs were this bill enacted.
5)IMR . The current California IMR process requires an enrollee
or insured to attempt to resolve the dispute through an
internal process before seeking the external IMR. A report by
the California HealthCare Foundation on the IMR process
identified the following trends: in 56% of the IMRs, the
appeal was requested for a female, while in 44% it was for a
male. California's IMR cases increased by age, peaking in the
41 to 60 year old age bracket. Just over half of all IMR
cases involved one of four diagnosis categories: orthopedics;
neurology; mental health; or, cancer. The specific treatments
and services varied but most commonly fell into four
categories: surgery; pharmacy; diagnostic imaging; and,
durable medical equipment. According to CHBRP, both
DMHC-regulated plans and CDI-regulated policies are subject to
the IMR process for covered benefits. CHBRP examined IMR
complaints from 2011 through March 2013 for both departments
and found that there were only three complaints, all at DMHC,
related to infertility. Of these three complaints, none
involved a complaint related to discrimination.
6)SUPPORT . Equality California (EQCA) writes in support of this
bill that although California law already prohibits
discrimination on the basis of sexual orientation, gender
identity, and marital status, among others, in offering or
providing coverage for fertility treatments, this bill adds
clarifying provisions. According to EQCA and their partner
organization, the National Center for Lesbian Rights (NCLR),
NCLR operates a helpline which provides resources and legal
information and has received calls from a significant number
of LGBT couples and single prospective parents who are unable
to obtain coverage for needed fertility treatment because of
their plan's overly restrictive definition of "infertility,"
even in situations where there is independent proof they have
an infertility condition. The National Association of Social
Workers, California Chapter also writes in support that this
bill would ensure that infertility treatment is more
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accessible to all people and would require such treatment to
be covered without discrimination; it is important that all
people have equal access to infertility treatment and that the
aspects of a person's identity are not used to withhold
treatment.
7)OPPOSITION UNLESS AMENDED . The California Association of
Health Plans (CAHP) raises concerns over whether the language
in this bill would result in unintended consequences. CAHP is
concerned that by placing very standard anti-discrimination
language into statute for a particular treatment, with no
other clarifying parameters this bill would suggest that plans
must pay for services that may not be safe or advisable from a
clinical perspective. As an example, the inclusion of "age"
in the language might suggest that legally a plan would be
obligated to pay for infertility services for an individual
that is not age appropriate for the treatment. Such
misinterpretations of the law could invite litigation or
unneeded regulatory proceedings to clarify the intent of the
statute.
8)OPPOSITION . The Capitol Resource Institute writes in
opposition that this bill would violate the right to freedom
of religion, conscience, and thought of many medical
professionals and employers; that medical professionals should
not be forced to perform procedures that go against their
moral convictions and employers should not be forced to
finance the procedures.
9)RELATED LEGISLATION .
a) AB 219 (Perea) requires health plan contracts and health
insurance policies that cover prescribed, orally
administered anticancer medications to limit an enrollee or
insured's total cost share to no more than $100 per filled
prescription. AB 219 passed the Assembly and is currently
in Senate Rules Committee pending referral.
b) AB 889 (Frazier), currently in the Assembly Health
Committee, prohibits a health plan that provides coverage
for medications pursuant to step therapy or fail first
protocol from requiring a patient to try and fail more than
two medications before allowing the patient access to the
medication originally prescribed by their provider.
Requires health plans to have an expeditious process in
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place for step therapy exceptions and that the duration of
step therapy be consistent with up-to-date evidence-based
outcomes and current published peer-reviewed medical and
pharmaceutical literature.
c) AB 912 (Quirk-Silva), also pending in the Assembly
Health Committee, mandates that health plan contracts and
health insurance policies provide coverage for medically
necessary expenses for standard fertility preservation
services when a necessary medical treatment may cause
iatrogenic infertility to an enrollee or insured.
d) SB 126 (Steinberg), currently in the Senate Health
Committee, extends the sunset of the requirement for every
health plan contract that provides hospital, medical, or
surgical coverage and health insurance policy issued,
amended, or renewed on or after July 1, 2012, pursuant to
California's mental health parity law, to provide coverage
for behavioral health therapy for pervasive developmental
disorder or autism from July 1, 2014 to July 1, 2019.
e) SB 189 (Monning), also in the Senate Health Committee,
prohibits a health care service plan or health insurer from
offering a wellness program in connection with a group
health plan contract or group health insurance policy, or
offering an incentive or reward based on adherence to a
wellness program, as specified.
f) SB 320 (Beall) prohibits a health care service plan
contract or a health insurance policy issued, amended,
renewed, or delivered on or after January 1, 2014, from
denying coverage for medically necessary medical or
rehabilitation treatment for an acquired brain injury, as
specified.
g) SB 799 (Ron Calderon) requires a health care service
plan contract or a health insurance policy, except as
specified, that is issued, amended, or renewed on or after
January 1, 2014, to provide coverage for genetic testing
for hereditary nonpolyposis colorectal cancer and screening
for colorectal cancer under specified circumstances.
9)PREVIOUS LEGISLATION .
a) SB 757 (Lieu), Chapter 722, Statutes of 2011, this bill
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requires every group health care service plan contract and
every policy or certificate of group health insurance
marketed, issued, or delivered to a resident of this state,
regardless of the situs of the contract to comply with
existing law that provides for equal coverage for
registered domestic partners.
b) AB 2356 (Skinner), Chapter 699, Statutes of 2012,
authorizes a recipient of sperm donated by a sexually
intimate partner (SIP) of the recipient for reproductive
use to waive a second or repeat testing of that donor if
the recipient is informed of the donor testing
requirements, as specified, and signs a written waiver.
Defines SIP to include a known or designated donor to whose
sperm the recipient has previously been exposed in a
nonmedical setting in an attempt to conceive. Excludes
physicians and surgeons from liability and disciplinary
action, as specified.
c) AB 1586 (Koretz), Chapter 421, Statutes of 2005, defines
the term "sex" to include, but not be limited to, a
person's gender, as specified, under existing law that
prohibits health plans and insurers from specified
discriminatory acts.
REGISTERED SUPPORT / OPPOSITION :
Support
American Society for Reproductive Medicine
California Communities United Institute
Equality California
National Association of Social Workers - California Chapter
National Center for Lesbian Rights
Opposition
California Catholic Conference, Inc.
Capitol Resource Institute
Analysis Prepared by : Teri Boughton / HEALTH / (916) 319-2097
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