BILL ANALYSIS                                                                                                                                                                                                    



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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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