BILL ANALYSIS Ó
AB 460
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Date of Hearing: May 8, 2013
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Mike Gatto, Chair
AB 460 (Ammiano) - As Introduced: February 19, 2013
Policy Committee: HealthVote:13-6
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill requires coverage for infertility treatment, which
under current law must be offered to all purchasers of group
health coverage, 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.
FISCAL EFFECT
Negligible costs because this bill clarifes existing law and
does not create a coverage benefit that did not previously
exist. The California Health Benefits Review Program (CHBRP) was
unable to estimate the marginal cost impact, if any. CHBRP did
note this bill does not change the current infertility treatment
mandate to offer, meaning the state would not be subject to
defray costs of a new benefit not included as an essential
health benefit under the federal Affordable Care Act.
COMMENTS
1)Rationale . This bill seeks to address concerns about health
plans and insurers 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 states
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.
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2)What is infertility ? Infertility is explained by the author
as the state of being unable to produce offspring. State law
defines infertility as: 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 provides an example of how current
nondiscrimination laws are violated: an individual or a couple
is unable to conceive, 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 states many insurers currently cover all their
insureds with infertility coverage in their plan, and notes
this bill does not affect insurers who are in compliance with
existing nondiscrimination laws.
3)DMHC and CDI letters . On April 9, 2013, the Department of
Managed Healthcare (DMHC) wrote 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 coverage or limiting
benefits on the basis of sex, which is defined to include
gender, gender identity, and gender expression. IGNA requires
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health plans to provide transgender individuals with the same
coverage benefits 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. If a
plan denies services on the basis of medical necessity or
utilization management criteria, the decision is subject to
review through the Independent Medical Review (IMR) process.
In 2007, the Department of Insurance (CDI) issued a letter
regarding the state law prohibition against insurer
discrimination on the basis of sex in creation or maintenance
of service contracts or the provision of benefits or coverage.
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.
4)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
California HealthCare Foundation report on IMR noted more than
half of all case involve orthopedics, neurology, mental
health, or cancer. 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 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.
5)Clarification on discrimination is needed . Equality
California (EQCA) and the National Center for Lesbian Rights
(NCLR) support the clarifications in this bill. NCLR operates
a helpline that provides resources and legal information and
has received a significant number of calls from people 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 of an
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infertility condition.
6)Drafting concerns . 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 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 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.
7)Religious freedom . 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.
8)Previous legislation . SB 757 (Lieu), Chapter 722, Statutes of
2011, requires group health coverage to comply with existing
law providing for equal coverage of registered domestic
partners.
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.
Analysis Prepared by : Debra Roth / APPR. / (916) 319-2081