BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 460|
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THIRD READING
Bill No: AB 460
Author: Ammiano (D), et al.
Amended: 8/20/13 in Senate
Vote: 21
SENATE HEALTH COMMITTEE : 7-2, 6/26/13
AYES: Hernandez, Beall, De León, DeSaulnier, Monning, Pavley,
Wolk
NOES: Anderson, Nielsen
SENATE APPROPRIATIONS COMMITTEE : 4-1, 8/12/13
AYES: De León, Hill, Lara, Steinberg
NOES: Gaines
NO VOTE RECORDED: Walters, Padilla
ASSEMBLY FLOOR : 50-24, 5/20/13 - See last page for vote
SUBJECT : Health care coverage: infertility
SOURCE : Author
DIGEST : This bill adds non-discrimination language to the
existing requirement that health plans and health insurers offer
coverage for the treatment of infertility.
Senate Floor Amendments of 8/20/13 clarify that the
non-discrimination language in this bill is consistent with
existing non-discrimination language, as specified.
ANALYSIS :
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Existing law:
1.Provides for regulation of health insurers by the California
Department of Insurance (CDI) under the Insurance Code, and
provides for the regulation health plans by the Department of
Managed Health Care (DMHC), pursuant to the Knox-Keene Health
Care Service Plan Act of 1975 (Knox-Keene Act).
2.Requires health insurers offering group coverage, and health
plans when offering coverage to groups of at least 20
employees, to offer coverage for the treatment of infertility,
except in vitro fertilization, and to communicate the
availability of that coverage to all prospective group
contract holders with whom they are negotiating.
3.Defines "infertility," for purposes of the mandate to offer
infertility coverage, as either (1) the presence of a
demonstrated condition recognized by a licensed physician as a
cause of infertility, or (2) the inability to conceive a
pregnancy or to carry a pregnancy to live birth after a year
or more of regular sexual relations without contraception.
4.Defines "treatment of infertility," for purposes of the
mandate to offer infertility coverage, as procedures
consistent with established medical practices in the treatment
of infertility by licensed physicians, including, but not
limited to, diagnosis, diagnostic tests, medication, surgery,
and gamete intrafallopian transfer.
5.Prohibits the requirement for health plans and health insurers
to offer infertility coverage from being construed to require
a religious organization to offer coverage for forms of
treatment of infertility in a manner inconsistent with the
religious organization's religious and ethical principles.
6.Prohibits the benefits or coverage of any health plan contract
from being subject to any limitations, exceptions, exclusions,
reductions, copayments, coinsurance, deductibles,
reservations, or premium, price, or charge differentials, or
other modifications because of the race, color, national
origin, ancestry, religion, sex, marital status, or sexual
orientation.
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7.Defines "sex" to have the same meaning as "gender," which is
defined as including a person's gender identity and gender
expression, as defined.
8.Prohibits health insurers from failing to issue insurance, or
from issuing insurance under less favorable conditions, on the
basis of race, color, religion, sex, gender, gender identity,
gender expression, national origin, ancestry, or sexual
orientation.
This bill:
1.Revises the requirement that health plans and health insurers
offer coverage for the treatment of infertility to require
that this coverage be offered, and if purchased, 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.
2.Prohibits the non-discrimination language added by this bill
from being construed to interfere with the clinical judgment
of a physician.
3.Clarifies that the non-discrimination language in this bill is
consistent with existing non-discrimination language, as
specified.
Background
According to the author, 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.
According to the author, an example of how the current
non-discrimination laws are not being adhered to is when an
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individual or same-sex couple are unable to conceive and attempt
to access their infertility coverage and are denied based on not
having an opposite sex married partner in which to have one year
of regular sexual relations without conception. A single woman
may be required to pay for artificial insemination for a period
of time prior to being diagnosed as infertile, whereas a
heterosexual couple does not face a similar cost.
Mandate to offer versus mandate to cover . This bill proposes to
add non-discrimination language to existing law that requires
health plans and health insurers offer coverage for the
treatment of infertility. This is distinguished from benefit
mandates in which health plans and health insurers are required
to actually cover the treatment or benefit it question. Under a
mandate to offer, the purchaser of the plan or policy has the
option to include, or not include, coverage for infertility
treatment. According to the CHBRP, most California state
benefit mandates are "mandates to cover."
CHBRP analysis. AB 1996 (Thomson, Chapter 795, Statutes of
2002) requests the University of California to assess
legislation proposing a mandated benefit or service and prepare
a written analysis with relevant data on the medical, economic,
and public health impacts of proposed health plan and health
insurance benefit mandate legislation. CHBRP was created in
response to AB 1996, and SB 1704 (Kuehl, Chapter 684, Statutes
of 2006) extended CHBRP for four additional years.
According to CHBRP, it is not able to say whether the various
definitions of infertility in medical policies would be
considered discriminatory. CHBRP states that legal analysis,
which it does not do, is required to understand how
discrimination would be interpreted as it relates to coverage
for treatment of infertility, and that neither DMHC nor CDI was
able to provide this level of legal analysis within its time
frame to complete the analysis. According to CHBRP, because the
impact of this bill is unknown, it is unable to estimate the
marginal impact, if any, of this bill.
CHBRP states that the impact of AB 460 on utilization of
treatments of infertility is unknown, thus the impact of this
bill on reducing disparities among racial and ethnic groups is
unknown.
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Interaction With the Federal Affordable Care Act . California
has selected the Kaiser Foundation Health Plan Small Group HMO
30 as its benchmark plan for defining essential health benefits
(EHB) in 2014 and 2015. The Affordable Care Act permits a state
to require a health plan offered in the exchange to offer
benefits in addition to the EHB package, but if the state does
so, the state must make payments to defray the cost of those
additionally mandated benefits.
The Kaiser Small Group HMO 30 benchmark plan excludes coverage
for the treatment of infertility, therefore health plans and
health insurance policies subject to EHB coverage requirements
are not required to cover treatment for infertility. State
benefits mandates that are not part of the EHB package that are
only a "mandate to offer," such as the infertility coverage
requirement affected by this bill, do not trigger the
requirement that the state defray costs in 2014 or 2015.
Prior Legislation
SB 757 (Lieu, Chapter 722, Statutes of 2011) requires every
group health plan contract and every health insurance policy to
comply with existing law that provides for equal coverage for
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Minor costs to both the CDI and DMHC to enforce the
requirements of the bill (Insurance Fund and Managed Care
Fund). Both departments have indicated that health insurers
and health plans are already subject to general provisions in
law against discrimination by sex or gender in the provision
of benefits. Therefore this bill clarifies existing law and
does not create a new obligation that must be enforced.
No anticipated costs to the Medi-Cal program (General Fund and
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federal funds). Medi-Cal generally does not provide coverage
for infertility services (unless infertility is a secondary
diagnosis to another medical condition, for which treatment is
covered). Therefore, there is no anticipated additional cost
to Medi-Cal.
No anticipated costs to CalPERS (General Fund and special
funds). CalPERS health plans are subject to regulation by the
Department of Insurance or the Department of Managed Health
care. As noted above, those carriers are already subject to
non-discrimination requirements.
SUPPORT : (Verified 8/21/13)
American Federation of State, County and Municipal Employees,
AFL-CIO
American Society for Reproductive Medicine
California Communities United Institute
Equality California
National Association of Social Workers, California Chapter
National Center for Lesbian Rights
OPPOSITION : (Verified 8/21/13)
California Catholic Conference
Capitol Resource Institute
Catholics for the Common Good
ARGUMENTS IN SUPPORT : According to the author's office, 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 states that all
persons with infertility coverage should be treated fairly and
without discrimination when choosing to build their family.
Equality California states in support that this bill would
clarify that insurance coverage of fertility treatments must be
offered and provided equally to lesbian, gay, bisexual, and
transgender prospective parents, including single parents. The
National Center for Lesbian Rights (NCLR) states that it has
been contacted by a significant number of lesbian, gay, bisexual
and transgender couples and single prospective parents who are
unable to obtain coverage for needed fertility services because
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of their insurer or plan's overly restrictive definition of
"infertility," even in situations where there is independent
proof they have an infertility condition. NCLR cited several
examples, including a woman from Alameda County who was denied
coverage by her health insurance provider for infertility
treatment, despite having been previously diagnosed with an
organic infertility condition (fibroids), because she did not
meet her plan's definition of "infertility," which required her
to have had intercourse with a man for a period of time without
conceiving.
The American Society for Reproductive Medicine (ASRM) states in
support that the while the policies of plans and insurers are
not identical in how they define infertility, generally
infertility for heterosexual couples is defined as the inability
to achieve conception after having frequent, unprotected
intercourse for at least a year, or for six months for a woman
over the age of 35. For a single woman, infertility is defined
as the inability to achieve conception after having 6 to 12
cycles of artificial insemination. ASRM states that these
descriptions are inherently discriminatory, as a woman must pay
for artificial insemination prior to being able to meet the
definition of infertility, and that these definitions apply to a
single woman, but not to a single man.
ARGUMENTS IN OPPOSITION : The California Catholic Conference
(CCC) opposes this bill, stating that infertility is the
inability of two people of opposite sex to conceive a child as a
result of sexual intercourse. Two people of the same sex who
engage in sexual activity are naturally, biologically infertile.
According to CCC, same sex couple may choose to adopt or spend
their own resources in the search to create a family, but the
state should have no role in mandating that activity. Catholics
for the Common Good state in opposition, that infertility
treatments covered by this bill amount to creating children with
the intention of depriving them of the fundamental human right
to know and be cared for by their mothers or fathers or both.
ASSEMBLY FLOOR : 50-24, 5/20/13
AYES: Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra,
Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon,
Campos, Chau, Chesbro, Cooley, Daly, Dickinson, Eggman, Fong,
Fox, Frazier, Garcia, Gatto, Gomez, Gordon, Gray, Hall, Roger
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Hernández, Levine, Lowenthal, Medina, Mitchell, Mullin,
Muratsuchi, Nazarian, Pan, Perea, V. Manuel Pérez, Quirk,
Quirk-Silva, Rendon, Skinner, Stone, Ting, Weber, Wieckowski,
Williams, Yamada, John A. Pérez
NOES: Achadjian, Allen, Bigelow, Chávez, Conway, Dahle,
Donnelly, Beth Gaines, Gorell, Grove, Hagman, Harkey, Jones,
Linder, Maienschein, Mansoor, Melendez, Morrell, Nestande,
Olsen, Patterson, Wagner, Waldron, Wilk
NO VOTE RECORDED: Holden, Jones-Sawyer, Logue, Salas, Vacancy,
Vacancy
JL:nl 8/21/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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