[Senate Hearing 107-391]
[From the U.S. Government Publishing Office]
S. Hrg. 107-391
IMPROVING WOMEN'S HEALTH: WHY CONTRACEPTIVE INSURANCE COVERAGE MATTERS
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
ON
S. 104
TO REQUIRE EQUITABLE COVERAGE OF PRESCRIPTION CONTRACEPTIVE DRUGS AND
DEVICES, AND CONTRACEPTIVE SERVICES UNDER HEALTH PLANS
__________
SEPTEMBER 10, 2001
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
U.S. GOVERNMENT PRINTING OFFICE
75-167 WASHINGTON : 2002
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
EDWARD M. KENNEDY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut JUDD GREGG, New Hampshire
TOM HARKIN, Iowa BILL FRIST, Tennessee
BARBARA A. MIKULSKI, Maryland MICHAEL B. ENZI, Wyoming
JAMES M. JEFFORDS (I), Vermont TIM HUTCHINSON, Arkansas
JEFF BINGAMAN, New Mexico JOHN W. WARNER, Virginia
PAUL D. WELLSTONE, Minnesota CHRISTOPHER S. BOND, Missouri
PATTY MURRAY, Washington PAT ROBERTS, Kansas
JACK REED, Rhode Island SUSAN M. COLLINS, Maine
JOHN EDWARDS, North Carolina JEFF SESSIONS, Alabama
HILLARY RODHAM CLINTON, New York MIKE DeWINE, Ohio
J. Michael Myers, Staff Director and Chief Counsel
Townsend Lange McNitt, Minority Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
Monday, September 10, 2001
Page
Mikulski, Hon. Barbara A., a U.S. Senator from the State of
Maryland....................................................... 1
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 5
Snowe, Hon. Olympia, a U.S. Senator from the State of Maine; and
Hon. Harry Reid, a U.S. Senator from the State of Nevada....... 6
Erickson, Jennifer, Pharmacist, Bartell Drug Co., Bellevue, WA;
Anita L. Nelson, M.D., Chief of Women's Health Care Programs,
Harbor-UCLA Medical Center, Torrance, CA, on behalf of the
American College of Obstetricians and Gynecologists; Kate
Sullivan, Director, Health Care Policy, U.S. Chamber of
Commerce, Washington, DC; and Marcia D. Greenberger, Co-
President, National Women's Law Center, Washington, DC......... 14
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Congresswomen Lowey.......................................... 35
Senator Snowe................................................ 36
Senator Reid................................................. 37
Jennifer Erickson............................................ 38
Anita L. Nelson, M.D......................................... 39
Kate Sullivan................................................ 42
Marcia D. Greenberger........................................ 45
Wendy Wright................................................. 49
Elizabeth Cavendish.......................................... 51
Letter to Committee on Health, Education, Labor, and Pensions
from Julie Brown, dated September 12, 2001................. 54
(iii)
IMPROVING WOMEN'S HEALTH: WHY CONTRACEPTIVE INSURANCE COVERAGE MATTERS
----------
MONDAY, SEPTEMBER 10, 2001
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 3 p.m., in room
SD-430, Dirksen Senate Office Building, Senator Mikulski,
presiding.
Present: Senators Mikulski, Kennedy and Murray.
Opening Statement of Senator Mikulski
Senator Mikulski [presiding]. Good afternoon, everybody.
The Senate Committee on Health, Education, Labor, and Pensions
is holding a hearing today called ``Improving Women's Health:
Why Contraceptive Insurance Coverage Matters.'' We will be
really listening to the views of those who are interested in
legislation called EPICC, which is Equity in Prescription
Insurances and Contraceptive Coverages. The chairman of the
full committee, Senator Kennedy, has asked me to chair the
meeting, and we are very happy to have him, and other Senators
will be joining us as they arrive back in Washington.
I am going to give an opening statement, and then Senator
Kennedy, and then we are going to return to our original
sponsors, Senator Harry Reid and our colleague, Senator Olympia
Snowe. Before we begin, I have statements from Senators Gregg
and Collins and I would like to ask unanimous consent that the
testimony of Congresswoman Nita Lowey be entered into the
record, as she is the lead sponsor in the House. Without
objection, that is so ordered.
[The prepared statements of Senators Gregg and Collins
follow:]
Prepared Statement of Senator Gregg
Thank you Madam Chairwoman for holding this hearing on
contraceptive coverage. Contraception is obviously an important
concern for millions of women of child-bearing age and their
families. In addition to the critical role contraception plays
in reducing unintended pregnancies, there is also evidence to
show it correlates with improved maternal and infant health
outcomes. While not every worker wants or needs access to
contraceptive benefits, I agree with making it available to
those who want it, so long as faith-based plans, employers, and
providers are not required to provide services that conflict
with their religious doctrine. This should be the issue before
the Committee.
Unfortunately, the legislation before this committee takes
a different approach to the issue, an approach that I believe
will undermine the intended effect of the legislation. EPICC--
the ``Equity in Prescription Insurance and Contraceptive
Coverage Act'' (S. 104)--does not seek to make benefit options
that include contraceptive coverage available for women who
want it. Instead, S. 104 forces every health plan in America
and every person enrolled in a private health plan to buy these
benefits, whether they want them or not.
Although S. 104 may be well-intentioned, any bill that
mandates specific benefits that all consumers must buy directly
raises health plan costs for employers and workers. The type of
mandate in S. 104 limits an employer's ability to design
benefits that meet the needs and preferences of their
employees. Assertions that across-the-board congressional
mandates are cost-effective in the private market because they
may be other contexts, such as in the public sector or in the
Federal Employees Health Benefits Program, are flawed. The
private employment-based market bears very little resemblance
to Medicaid, or even the choice model established by the FEHBP.
Indeed, the cost of the mandate for FEHBP was minimal because
nearly every plan was already covering most contraceptive
benefits when the mandate was implemented. Workers, and women
in particular, will pay the ultimate price of the mandate in
this legislation.
Benefit mandates cost money and must be considered in the
context of other cost drivers. Employment-based health care
costs have been increasing for several years and this year will
experience their highest rate increase in nearly a decade.
According to new survey data from the Kaiser Family Foundation,
small employers are dropping coverage at an alarming rate. The
cost of S. 104 will be in addition to premium inflation and a
range of other expensive mandates and regulations that are
pending, including the patient's bill of rights, mental health
parity, medical privacy regulations and administrative
simplification.
I am deeply concerned about our appetite for benefit
mandates. Resources for health care not unlimited, and I
believe it is inappropriate for the legislative branch to tell
consumers what benefits and services they must buy when many
people either do not have insurance or at risk of losing their
insurance. There is a strong link between increased insurance
premiums and the rate of uninsured, particularly when the
economy is weak. As it is, women are more likely to be
uninsured today. It simply does not make sense to pay for
increased contraceptive benefits for a few, at the expense of
other women who will lose their coverage entirely or find that
they are not adequately insured against a major medical event.
I believe we can, and must, find a better way to give
workers and other consumers options that meet their needs and
preferences without driving up health care costs and the number
of uninsured. For instance, the patient's bill of rights might
offer a better approach. That legislation requires most
employers to offer a point of service option so that employees
have the ability to use providers and facilities outside the
network. Thus, if a patient wants to obtain all health care
services from the Mayo Clinic, he or she can pay the additional
premium for that option. But other employees who don't want
that option, or can't afford it, can select a lower cost
option. While this type of requirement still costs money, it is
preferable to the inflexible mandate in S. 104.
In addition to its impact on cost and access, S. 104 as
drafted raises other types of concerns. Of particular concern
is the fact that, unlike the FEHBP mandate, S. 104 does not
contain a conscience clause. FEBHP specifically exempts plans
and providers that express religious objections. Under S. 104,
faith-based employers and health plans would be forced to
provide services that conflict with their religious and moral
teachings. In addition, S. 104 would also preempt state
insurance law and state parental notification laws.
S. 104 also raises quality concerns because it does not
permit a health plan to deny coverage or
require prior authorization for a contraceptive drug or
device for quality reasons. Thus, if a health professional
mistakenly prescribes a drug that could be harmful to a
patient, the plan cannot intervene. By prohibiting a plan from
intervening for quality purposes, S. 104 exposes employers and
plans to malpractice liability, the mere threat of which can
raise insurance premiums.
S. 104 also goes far beyond other benefit mandate proposals
by imposing rigid cost-sharing and plan design rules. By
linking contraceptive coverage cost-sharing to cost-sharing for
``any other drug or outpatient service'' it does not appear
that employers would be able to have different plan options
with in-network benefit differentials. In essence, employers
would be required apparently to cover contraceptive benefits at
the most generous cost sharing level across all options. For
example, if an employer plan offers 100% coverage for
immunizations, it would have to offer the same level of
coverage for contraceptive benefits.
Based on the serious nature of the access, quality, cost,
and moral issues I have outlined, I will oppose S. 104 in its
current form. I would hope that the sponsors of the bill would
be willing to address these concerns and seek to find a better
approach to expanding access to contraceptive services.
Prepared Statement of Senator Collins
Madam Chairman, thank you for calling this hearing this
afternoon to examine the issue of contraceptive coverage and
whether or not we should require insurers who routinely cover
prescription drugs and medical devices to also cover
contraceptive care. I am particularly pleased to welcome my
colleague, the senior Senator from Maine, Senator Snowe, as
well as Senator Reid, both of whom have been such leaders in
the Senate on this and other issues important to women's
health.
Most American women do use contraception to avoid
unintended pregnancy. While women clearly view contraception as
basic to their health and to their lives, health insurers in
the United States traditionally have not. While health plans
routinely cover other prescriptions and outpatient medical
services, contraceptive coverage is meager or nonexistent in
many health insurance policies. According to a 1994 study by
the Alan Guttmacher Institute, while virtually all fee-for-
service plans covered prescription drugs, half of these plans
fail to cover any prescription contraceptive method. While 97
percent cover prescription drugs, only 33 percent cover the
pill.
This gap in health care coverage has major health
implications for American women. Contraceptives have a proven
track record of preventing unintended pregnancy, and
contraception is basic health care for most women throughout
much of their lives. Prescription contraceptives, however, can
be expensive and many women may use a less effective method or
forgo using contraception at all because of the cost. This
places these women at increased risk of unintended pregnancy
and abortion.
The Equity in Prescription Insurance and Contraceptive
Coverage Act corrects this inequity, and I am please to be a
cosponsor. While some may be concerned that this is a mandate,
it really is an equity issue. It does not require health plans
to cover prescription drugs--it just prohibits them from
carving out contraceptive care. Currently, contraceptive drugs
and devices are the only class of services that are not
routinely covered by health plans that provide prescription
coverage.
Again, Madam Chairman, thank you for calling this hearing
to explore this issue further.
[The prepared statement of Ms. Lowey may be found in
additional material.]
Senator Mikulski. Well, I would like to thank everybody for
coming to this important hearing on contraceptive coverage, and
of course welcome our colleagues and others who are interested.
To Senator Reid and Snowe, we want to commend both of you for
your strong bipartisan leadership on contraceptive coverage for
women. Senators Snowe and Reid have sponsored legislation
called the Equity in Prescription Insurance and Contraceptive
Coverage Act of 2001. This legislation requires health plans
that cover prescription drugs to provide the same level of
coverage for prescription contraceptives.
I am a proud co-sponsor of this bill, and the purpose of
the hearing today is to shine a spotlight on the issues related
to contraceptive coverage, why it is important to women, why it
is important to families, and how we can ensure that women have
access to the health care they need. Women already pay a gender
tax. We pay a gender tax when it comes to getting less pay for
comparable work or getting lower Social Security benefits
because of the time we take out of the workforce to raise
families, and now women face the added gender tax of high
health costs. For every dollar spent on men's health care,
women during their child-bearing years spend $1.68. Now, why?
Because some insurance plans do not cover birth control pills
or other forms of prescribed contraception.
Therefore, most women pay considerable out-of-pocket
expenses. The legislation we are talking about today will
address this inequity. Since my first days in Congress, I have
been trying to lead the charge to make sure we address women's
health, whether it was to establish the Office of Women's
Health at NIH, to ensure that women are included in the
protocols, something then-Congresswoman Snowe and I worked on,
with the help of the great guys in the Senate like Senators
Kennedy and Reid. We ensured that older women have access to
important cancer screenings like mammograms and pap smears to
make sure that women's health needs are a priority for our
Nation.
Contraception is a basic part of health care for women.
Family planning actually improves the health of both mother and
child. Unwanted pregnancies are associated with lower birth
weights and can jeopardize maternal health. The American
College of OB/GYNs has said contraception is a medical
necessity for women during three decades of their lives. We
cannot stand by and let insurance plans deny access to this
medical necessity any longer.
Some strides had been made, and I know we are going to hear
from Jennifer Erickson today, who will tell us why she became
an advocate for contraceptive equity and even took her employer
to court for refusal to cover contraceptives. I am proud that
my own State of Maryland has been a leader on prescription
equity. It was the first State in the Nation to require
insurers that if you cover prescription drugs, you also have to
cover FDA-approved prescription contraceptives. Women in every
State should have access to this basic health care tool. It
helps create parity between the benefits offered to men and the
benefits offered to women.
Mr. Chairman, prescription contraceptives should be
available to all women. It is time to end this sex
discrimination in insurance coverage, and let's at least reduce
the gender tax. We look forward to hearing the witnesses, and
now I turn to my colleague and chairman of the committee,
Senator Kennedy, for any statement he wishes to make.
Opening Statement of Senator Kennedy
The Chairman. Well, just very briefly, Madam Chairman, I
want to thank you for all of your strong leadership on this
issue, as well as women's health issues, and thank Senator
Snowe, as well, for all that she has done on this issue.
Senator Reid has been a real leader in this particular area and
in so many other areas, as well, in terms of health issues.
Thank you for having this hearing.
I think we will hear today the compelling case for action,
and I just want to give you the assurance that I think many of
us are looking forward to this hearing because we will have the
latest in terms of information as to what is happening out on
the crossroads of our country, but I think this is obviously
something that all of us are very hopeful that we will move
right to the Senate floor and have an opportunity to get action
on this year. This is something that is timely and important. I
know that is your priority. I know it is, Senator Snowe, as
well as Senator Reid, because they have spoken about this on
many occasions.
So I thank all of you for all the good work that you have
done. Just to mention again, contraceptive insurance coverage
is essential for women's health. We should have passed the
legislation long ago to deal with this pressing issue. The
pending bill is a responsible solution to a problem facing
millions of American women, and I thank all of you for your
leadership. Family planning improves women's health and reduces
the number of unintended pregnancies and abortions. Access to
prescription contraceptives is a vital part of such planning.
Women have the right to decide when to begin their families and
how to space their children. Access to such coverage is also
essential in reducing infant mortality and the spread of
sexually-transmitted diseases.
In spite of these benefits to women and their families,
only half of all the health plans today cover prescription
contraceptives, which may well be the only prescription a woman
needs. Without the help of insurance coverage, many women are
unable to meet this basic health need, or may decide to choose
a less-expensive, less-effective method. Largely as a result of
the lack of this coverage, women on average pay 68 percent more
than men for health care. This bill is urgently needed to
increase the number and variety of contraceptive methods
available to all women.
More than three-quarters of Americans support this
coverage. According to a study in 1998, 78 percent of Americans
support requiring health plans to include coverage for
contraceptives even if it means increasing their out-of-pocket
expenses by more than five dollars, which is much more than the
actual cost of the coverage. The cost to employers of including
this coverage in their health plans should not be an issue. In
fact, the Washington Business Group on Health estimates that
not providing the coverage would cost an employer 15 to 17
percent more than providing the coverage.
Many States have successfully begun to require this
coverage in their basic health bills. The Equal Employment
Opportunity Commission has ruled that employers who do not
include such coverage in their health plans, while covering
other prescriptions, are in violation of Title 7. Recently, a
Federal court agreed on this point, as our panelists will
discuss. But Federal legislation is clearly needed to see that
all women throughout the Nation have fair access to the family
planning services they need. I commend our witnesses who are
here today and look forward to the testimony and to this bill
becoming law this year.
I thank the chair.
Senator Mikulski. Well, thank you very much, Mr. Chairman,
and really your leadership has been important. I know when we
were working on including women in clinical trials, had it not
been for your leadership, working with then myself and the
women of the House, women would not have been included in that.
We would have never had that Office of Women's Health at NIH,
and I do not think Bernadine Healy would have ever been head of
NIH. It is time now to break even additional ground.
Having said that, I would like to be able to turn to
Senator Olympia Snowe, who has been really a very strong
advocate of comprehensive women's agenda, and has been a
leader, working with our colleague, Senator Harry Reid, on this
prescription contraceptive coverage. Senator Snowe, we really
welcome you.
STATEMENTS OF HON. OLYMPIA SNOWE, A U.S. SENATOR FROM THE STATE
OF MAINE; AND HON. HARRY REID, A U.S. SENATOR FROM THE STATE OF
NEVADA
Senator Snowe. Thank you, Madam Chair, and it is certainly
a pleasure to be here today and before you. You certainly have
been a longtime leader of women's health issues and it has been
a privilege to work with you over the last 20 years on so many
pieces of groundbreaking legislation, as you indicated, in
creating the Office of Women's Health.
Senator Kennedy, I thank you as chair of this committee for
setting aside time to address this most important issue, and
more significantly to highlight the continuing inequity in
prescription drug coverage that excludes the coverage for
prescription contraceptives. I introduced this legislation with
Senator Reid back in 1997, and we now have 42 co-sponsors on
this legislation once again. I consider it my good fortune to
have been joined in this effort, to have as my partner in
advancing this legislation, Senator Reid, who has done so much
to advocate on behalf of this legislation and the need to
address this discriminatory problem within coverage of
prescription drugs and overall health insurance policies.
We have agreed that this is a common-sense public policy
whose time has long since come. It really does get down to a
matter of basic fairness, fairness to half of the Nation's
population, fairness in how we treat and view women's
reproductive health care versus every other health care need
that is addressed through prescription drug coverage. Make no
mistake about it, the lack of coverage for prescription
contraceptives in our health insurance policy has a very really
impact on the lives of women in America, and certainly on our
society as a whole. This is not an overstatement. It is a basic
fact and it is basic reality.
Frankly, it confounds logic as to why the Congress has been
reluctant, reticent, resistant to the idea of passing this
legislation so that we can have a national law, a national
standard by which women could be assured that they are going to
receive this coverage. It has been four long years since we
introduced this legislation, and according to the Alan
Guttmacher Institute, in each of those 4 years, women have been
paid $350 for prescription oral contraceptives. That is a total
of $1,500. Why? Because health insurance plans exclude
prescription contraceptives when they when they provide
coverage for other prescription benefits. How can we continue
to deny this fundamental coverage that is so critical, so key
to women's reproductive health?
All we are saying in this legislation is that if health
insurance plans provide coverage for prescription drugs, that
that coverage has to extend to FDA-approved prescription
contraceptives. It is that simple. It is a matter, as I said
earlier, of basic fairness that really underscores law and
jurisprudence. We only have to look at the case that was issued
by the U.S. District Court in the Western District of the State
of Washington back in June. I guess it should come as no
surprise to us that a court should issue a ruling, buy it was a
very significant ruling in the case of Jennifer Erickson versus
Bartell Drug Company, in which they indicated that employer's
failure to include prescription contraceptives in an otherwise
comprehensive prescription drug benefit program constituted
gender discrimination under Title 7 of the Civil Rights Act.
We are very fortunate to have with us here today--and I am
delighted that you were able to get Jennifer Erickson, who is
the plaintiff in this case, to testify here today, so that we
can hear firsthand from her of her willingness to wage this
lawsuit, and I am thankful and we are all grateful to Jennifer
Erickson for her willingness to do that, for her fortitude, her
perseverance, her persistence, and her courage in doing so,
because this is the first case of its kind that establishes a
legal precedent for the legality of our position and really
does speak to the reasons as to why we need to have national
legislation.
We also know the EEOC issued rulings preceding this court
decision that really underscored the same premise, that
employers were violating gender discrimination laws under Title
7 of the Civil Rights Act if they did not include prescription
contraceptives when otherwise their health insurance plans
included prevention devices, prescription drugs, or other
preventive health services.
So we have, in these two decisions, a one-two punch
approach that favors the legislation and the approach that we
have embraced in that legislation, as well. So have 16 States,
as you indicated, Madam Chair, in your own State of Maryland,
same is true of my State of Maine. There are 16 states who have
already passed this legislation, 20 other States are
considering similar legislation. But the fact of the matter is
women should not be held hostage by virtue of where they live,
to geography, but that is exactly what would happen if we just
relied on the States enacting this legislation. But
furthermore, that legislation can only address State-regulated
plans. So it cannot reach all the Federal plans, ERISA plans,
for example, or other group plans. So it is very, very
important that we have national standard.
It is not only a matter of fairness. It is a matter of what
we must consider the primary objective of this legislation, and
that is to reduce unintended pregnancies. Frankly, that is why
Senator Reid and I came together, to bridge the chasm between
pro-life and pro-choice positions on this very significant
challenge in our society today. There are three million
unintended pregnancies in America, over half of which result in
abortions. What better way than to prevent these unintended
pregnancies than through this legislation, giving access to
women to the most effective means of birth control?
So that is what it is all about, Madam Chair and Chairman
Kennedy, in this legislation. There are numerous ramifications
by omitting this kind of coverage in our health insurance
policies. We know that, to be sure. When we talk about cost,
talk about the cost of unintended pregnancies, the
ramifications to a woman's health, to the children's health, to
low birth weights and infant mortality, to mention a few, but
very significant consequences as a result of unintended
pregnancies. Women do not seek prenatal care in many of these
instances of unintended pregnancy.
So there are numerous consequences, and then you look at
what health insurances provide for. They provide for surgical
procedures such as sterilization, tubal ligation, vasectomies;
and yet here in this instance, are providing the minimal
support for coverage for the most effective means of birth
control. It simply is not fair, and it is inequitable. Ask any
woman in America, who would not say that reproductive health
care is a vital component of overall health care. How do you
divorce that issue from overall health care and issues that
affect women's health?
So those are the major reasons why we have introduced this
legislation. The American people see the common-sense approach
to this. That is why they overwhelmingly support requiring
health insurance companies to provide this coverage, even if it
were to increase the cost of their premiums from one to five
dollars. There was a survey that was conducted a couple of
years ago which indicated that 73 percent of American people
would support that even if it increased premium cost, but we
know that there will not be any cost. We have seen that with
the extension of that coverage that we were able to provide to
Federal employees in the 1998 Treasury-Postal appropriations.
In fact, we heard that argument over and over and over again,
``It is going to increase the cost of the premiums. It is going
to increase the cost of that insurance.''
Well, guess what? OPM issued a statement in January of this
year that emphatically declared otherwise. It said there was no
obstacles to extending this coverage to Federal employees;
there were no net increases in the premium costs; there were no
increased costs as result of this contraceptive coverage. So
that is a plain fact, and we know that, because we know that if
you have unintended pregnancies, there are greater costs. There
are costs--the pregnancy-related medical costs that can range
from $5,000 to $9,000, or a premature baby up to $500,000. So
we know that ultimately this legislation is going to reduce
costs, not only for the employer, but also for the insurers in
America today.
Finally, I might add, Madam Chair, there have been some
questions about whether or not we should have a conscience
clause, and we were able to draft an appropriate conscience
clause in the legislation for Federal employees, and I know
that we can do the same in this legislation, as well, to
address any concerns for those with respect to being able to
opt out because of religious beliefs. So, again, Madam Chair
and Chairman Kennedy, I thank you for this opportunity to
testify. I hope that we will be able to redress this wrong, so
that we can work in what is in the best interest of women and
children in America.
Thank you.
Senator Mikulski. Thank you very much, Senator Snowe.
[The prepared statement of Senator Snowe may be found in
additional material.]
Senator Mikulski. Now we would like to turn to our
colleague, Harry Reid, who has been a champion of women's
health and their safety and security, both here and abroad. He
has taken a leadership role in international family planning,
and he has also been an outstanding international opponent
against the trafficking of women, and in those grim-and-gore
surgical procedures that are used against women, in terms of
their fertility.
So, Senator Reid, the women in the Senate just think you
are one of the Gallahads, and we are very happy to hear from
you today.
The Chairman. We think so, too. [Laughter.]
Senator Mikulski. We are so grateful for your advocacy, and
we turn to you for your comments today.
Senator Reid. Madam Chairman, thank you very much--Senator
Kennedy.
First of all, let me express to Senator Snowe what a
pleasure it has been to work with her over these 4 years, and
we have made progress. I appreciate very much being able to
work with you, Olympia. Yesterday, all over America, hundreds
of thousands of people watched people playing football, but if
we look at panel number two here, these are the real heroes,
people who really affect people's lives, different than
somebody kicking a football or throwing a football. Jennifer
Erickson, Anita Nelson, Kate Sullivan, Marcia Greenberger, I
hope those within the sound of our voices, those that are
viewing us, will understand that these are the real heroes.
These are going to make a change. These people are attempting
to make changes in people's lives that really mean something. I
have said many, many times that if men suffered from the same
illnesses as women, the medical research community would be
much closer to eliminating diseases that strike women.
Senator Mikulski, you remember when I came back and
reported to you of a meeting I had in Las Vegas with three
women who would rather have been anyplace in the world rather
than meeting with me. I was all they had. They were there
because they had a disease called interstitial cystitis, a
disease that afflicts, at that time, 500,000 women--we think
much more than that now. But they had no place else to turn
because people told them it was all psychosomatic.
Working with you, we were able to get money in an
appropriation bill to start a protocol, and we have made great
progress; 40 percent of the women who have this dread disease
now get relief through a drug that has been developed. So there
is no question in my mind that if we had legislatures in the
past that had a fair sprinkling of women, we could have done
much better in directing some of our resources toward illnesses
like interstitial cystitis and many, many other diseases that
afflict women. So thank you for working with me in that regard.
I believe the issue before us today is similar. If men had
to pay for contraceptives, I believe the insurance industry
would cover them. It was hardly surprising that less than 2
months after Viagra went on the market, it was covered by many,
many insurance plans. Birth control pills, which have been of
the market since 1960, are covered by less than one-third of
these insurance companies. The health care industry has done a
poor job of responding to women's health needs. According to a
study by the Guttmacher Institute, 49 percent of all large
group health care plans do not routinely cover any
contraceptive method at all, and only 15 percent cover all five
of the most common contraceptive methods. But these same
insurance companies routinely cover more expensive services,
including sterilizations, tubal ligations, and abortions.
Apparently, insurers do not know what women and their
doctors have long known, that contraceptives, as has been
indicated by both Senators that are presiding over this meeting
today, Senator Snowe--have already said that contraceptives are
a crucial part of a woman' health care plans. By helping women
plan and space their pregnancies, contraceptive use fosters
healthy pregnancy and healthy birth by reducing the incidence
of maternal complications, low birth weight and infant
mortality.
Madam President, sadly--I should say Madam Chair--financial
constraints force many women to forego birth control at all. I
was on a talk show shortly after Senator Snowe and I introduced
this, and frankly I was being abused pretty much on the radio
show about this legislation I introduced: ``Why are you doing
this? Leave people to their own choices. Leave people alone.''
A woman called in. She was from Texas and she said, ``Senator,
thank you for doing this.'' She said, ``I'm pregnant now with
my third baby. I did not want to get pregnant.'' She said, ``I
have diabetes, and I have real concern about my health and that
of my baby-to-be.'' She said, ``Why am I pregnant? Because I
could not afford to get the contraceptives at work. My
husband's insurance does not cover this. We are living hand-to-
mouth.''
Well, this is only one example, one real example. What we
are talking about here does not deal only with statistics. It
deals with real people with real problems. Financial
constraints force many women to forego birth control
altogether, leading to 3.6 million unintended pregnancies every
year. Senator Snowe has covered very ably that we need to do
something about this. We introduced this legislation. All we
are asking is equitable treatment. We do not want special
treatment. We want fair treatment. Senator Snowe and I first
introduced this many years ago, as I have indicated. We have
made some progress, as we have already talked about.
Along with Ms. Lowey, whose testimony you have already
indicated is going to be part of this record, we have a
provision that requires health care plans who participate in
the Federal Employees Health Benefits Program, the largest
employer-sponsored health plan in the world, to cover FDA-
approved prescription contraceptives. The Office of Personnel
Management, which administers the program, reported in January,
as has already been indicated, this benefit did not raise
premiums, since there is no cost increase due to contraceptive
coverage. I am sorry to report, Madam Chair, in spite of this,
this administration has proposed eliminating this benefit in
this budget. This past June, United States District Judge
Robert Lasznick handed down a landmark decision, and as Senator
Snowe indicated, we are so happy to have Jennifer Erickson
here. I was fortunate to be able to meet her.
I can remember the day that I got up and read about this
decision. It was much more exciting--using the athletic
contest--than any ball game that had occurred in the recent
past. This kept our legislation alive, and I was so happy for
her going her own way to work on this. Her case builds on
momentum from a second ruling this past December by the Equal
Employment Opportunity Commission that Senator Snowe has also
mentioned.
In that case, EEOC ruled that denial of coverage for female
contraceptives, if an employer offers other preventive medicine
or services, is sex discrimination under the Civil Rights Act.
That is the way it should be. In spite of these important
advances, women will not have the contraceptive insurance
coverage they deserve until Congress passes this legislation.
16 million Americans obtain health insurance from private
insurance, rather than employer-provided plans. Only the
enactment of this legislation will ensure that contraceptive
coverage is offered by insurance providers. Women who receive
their health care through work should not have to take their
employers to court. We want to make family planning more
accessible. We do not want an explosion in lawsuits. We want
fairness.
Equity in prescription contraceptive coverage is long
overdue. We have lots of sponsors, as Olympia has noted, on
both sides of the aisle. Senator Snowe and I are committed to
moving this legislation. We are looking for the right vehicle.
Promoting equity and health insurance coverage for American
women, while working to prevent unintended pregnancies and
improve women's health care, is the right thing to do. I
personally would appreciate, as would men and women--it is not
only women. Men need this insurance coverage. We are all
looking for this committee to report this bill on the floor so
it is there, we have a vehicle that is freestanding, that we do
not have to worry about attaching to some appropriation bill,
but we will do whatever we have to do to get this passed.
Thank you all very much.
Senator Mikulski. Thank you very much, Senators Reid and
Snowe, for, one, your leadership on this issue and your
testimony.
[The prepared statement of Senator Reid may be found in
additional material.]
Senator Mikulski. I do not have any questions. We know that
you are both pressed for time, in the leadership that you are
providing.
Senator Kennedy, would you have any questions?
The Chairman. Just a quick reaction. I think Senator Reid
gave it to us. In the budget, there was a proposal to eliminate
the Federal employees coverage, too. So Senator Snowe reference
that as something that we have witnessed, this course in action
over the recent years, and it has proven to be successful. I
imagine you are warning us to be alert as to the possibilities
of eliminating that existing coverage, and take the lessons
from the Federal employees health insurance and to learn from
that experience, which has not resulted in the increased cost,
which is the principal opposition element in that, and to make
sure that others are going to have it included.
I do not know whether there is anything in addition you
wanted to add on how successful it has been in the Federal
health insurance proposal. I do not want to delay you.
Senator Snowe. That, I think, is a good predicate for the
reasons why this legislation will not raise premiums. In fact,
in reading the OPM letter to health insurers, saying that if
you have to make adjustments in the premiums, please do so, as
a result of this legislation, and it did not happen. We got a
response to our letter to OPM, saying very emphatically that
does not lead to increases. So we hope that that coverage will
be preserved for Federal employees in the Treasury-Postal
appropriations in this go-around, but we also should draw from
that that we should be able to establish national legislation
without raising health insurance premiums, which I know may be
cited later on in the testimony here by others, that somehow
that may be a possibility. But I do not see that. In fact, I
draw the opposite conclusion from this big study trial with
Federal employees, of 9 million people in that pool.
The Chairman. Thank you very, very much.
Senator Reid. If I could just say this, too. Again, Olympia
and I like to throw these statistics around, and they are
important, but think what it would do to individual families
if, after the progress we have made, Federal employees no
longer had this benefit. It is a shame. We cannot allow that to
happen to Federal employees' families. That is why we not only
have to protect Federal employees' families, but we also have
to extend this, because it deals with people, making their
lives better, doing away with unintended pregnancies. That is
what it is about, 3.6 million. We can do so much good for
American families by having this legislation apply to
everybody.
Senator Snowe. In fact, Madam Chair, I would like to ask
unanimous consent to include in the record the letter from OPM
regarding the effects of extending coverage to Federal
employees. I think that would be an important part of the
record.
Senator Mikulski. Without objection, so ordered.
[The OPM letter follows:]
U.S. Office of Personnel Management,
Washington, DC, 20415,
January 16, 2001.
Marcia D. Greenberger,
National Women's Law Center,
Washington, DC, 20036.
Dear Ms. Greenberger:
Thank you for your recent inquiry about the Federal Employees
Health Benefits (FEHB) Program and the extent to which it covers
contraceptive drugs or devices.
As you may know, the Office of Personnel Management administers the
FEHB, ensuring that it provides the roughly nine million Federal
employees, retirees, and their family members covered by it with the
best possible health care options available. It is the largest
employer-sponsored health benefits program in the United States, with
approximately 300 health plans participating in it and providing over
$18 billion in health care benefits a year.
In 1999, passage of Public Law 105-277, required FEHB plans to
cover the full range of FDA-approved prescriptions and devices for
birth control. Implementation of the law occurred smoothly and without
incident. Because 1999 premiums had already been set when contraceptive
coverage was mandated, the increased coverage had no effect on 1999
premiums. We told health carriers we would adjust 1999 premiums, if
needed, during the 2000 premium reconciliation process. However, there
was no need to do so since there was no cost increase due to
contraceptive coverage.
Please do not hesitate to contact us again if you have additional
questions about the Federal Employees Health Benefits Program.
Sincerely,
Janice R. Lachance,
Director.
______
The Chairman. Thank you very much.
Senator Mikulski. Thank you very much, Senators. I look
forward to working with you and moving this to the floor.
Senator Mikulski. While our colleagues are leaving, we
would like to then invite the witnesses for panel two: Jennifer
Erickson, a pharmacist who took this issue to the courts; Dr.
Anita Nelson, an OB/GYN representing the American College of
OB/GYNs; Kate Sullivan, the director of health care policy from
the Chamber of Commerce; and Marcia Greenberger, the co-
president of the National Women's Law Center, a long-standing
advocate of the legal remedies to discrimination against women.
I want to first turn to invite Ms. Erickson to give her
testimony.
Ms. Erickson, I know you are from the State of Washington,
and your Senator, who is also a dear colleague on this
committee, Senator Patty Murray, wanted to introduce you
personally. Somewhere she is circling some airport, and who
knows? She might parachute in here herself, because she was so
eager to do this introduction. But let me just let others know
who you are. You are a professionally-trained pharmacist. You
work for a pharmaceutical company named Bartell, and you live
in Bellevue, WA. That is kind of the data background. But,
also, as we understand it, you took a personal situation where
you did not have insurance coverage for prescription
contraceptives and were so concerned that you decided to move
this as a legal challenge. How like the United States of
America. We do turn to our courts and we turn to our
legislative bodies to redress the remedies and to come up with
balanced solutions. So we would like to hear from you today. We
would like to hear what you did, why you did it, and why you
think we have got to consider some new legislative frameworks.
So, a most cordial welcome.
STATEMENTS OF JENNIFER ERICKSON, PHARMACIST, BARTELL DRUG
COMPANY, BELLEVUE, WA; ANITA L. NELSON, M.D., CHIEF OF WOMEN'S
HEALTH CARE PROGRAMS, HARBOR-UCLA MEDICAL CENTER, TORRANCE, CA,
ON BEHALF OF THE AMERICAN COLLEGE OF OBSTETRICIANS AND
GYNECOLOGISTS; KATE SULLIVAN, DIRECTOR, HEALTH CARE POLICY,
U.S. CHAMBER OF COMMERCE, WASHINGTON, DC; AND MARCIA D.
GREENBERGER, CO-PRESIDENT, NATIONAL WOMEN'S LAW CENTER,
WASHINGTON, DC
Ms. Erickson. Thank you. Madam Chair and members of the
committee, thank you for allowing me to testify this afternoon.
My name is Jennifer Erickson and I am the class representative
for the Erickson versus Bartell Drug Company case. I am pleased
to have been invited to testify in support of the Equity in
Prescription Insurance and Contraceptive Coverage Act. I
consider myself in many ways a typical American woman. My
husband, Scott, and I have been married for 2 years. We both
have full-time jobs in the Seattle area and are working hard to
save money. We recently bought our first house, and we spent a
lot of time this summer painting and fixing it up. My husband
and I are both looking forward to starting a family. However,
we want to be adequately prepared for the financial and
emotional challenges of parenting.
Someday, when we feel ready, Scott and I would like to have
one or two children, but we know we could not cope with having
12 to 15 children, which is the average number of children
women would have during their lives without access to
contraception. So I, like millions of other women, need and use
safe, effective prescription contraception. Like many
Americans, I get my health insurance through my employer. I am
a pharmacist for the Bartell Drug Company, which is a retail
pharmacy chain in the Seattle area. About 2 years ago, shortly
after I started working there, I discovered that the company
health plan did not cover contraception. Personally, it was
very disappointing for me, since contraception is my most
important ongoing health need at this time.
For many women, it may be the only prescription she needs.
But it was also troubling to me professionally, as a health
care provider. As a pharmacist who serves patients every day, I
see on a daily basis that contraceptives are central to women's
health. Contraception is one of the most common prescriptions I
fill for women. I am often the person who has the difficult job
of telling a woman that her insurance plan will not cover
contraceptives. It is an unenviable and frustrating position to
be in, because the woman is often upset and disappointed, and I
am unable to give her an acceptable explanation. Why? Because
there is no acceptable explanation for this shortsighted
policy.
All I could say was, ``I do not know why it is not covered.
My pills are not covered, either, and it does not make any
sense to me.'' Oral contraceptives cost approximately $30 per
month, and I know that I am very fortunate. I have a secure job
and a good income, but for many women it is a real financial
struggle to pay this cost every month year-in and year-out. My
perspective from behind the pharmacy counter gives me a clear
picture of the burden this policy places on women, especially
the low-income women who are the least-equipped to deal with an
unplanned pregnancy. I have seen women leave the pharmacy
empty-handed because they cannot afford to pay the full cost of
their birth control pills, and that really breaks my heart.
I finally got tired of telling women, ``No, this is one
prescription your insurance will not cover.'' So I took the
bold step of bringing a lawsuit against my employer to
challenge its unfair policy. I did it, not just for me, but for
the other women who work at my company who are not so
fortunate. I thank Planned Parenthood for their outstanding
legal counsel in my case. I am proud that the victory in my
case will help the women in my company. The court ordered
Bartell to cover all available forms of prescription
contraception and all related medical services in our health
plan, and I am very pleased that the company recently changed
its policy to comply with the court's order.
Despite our victory in Federal court, I know that my case
is not enough to help all of the American women who need this
essential health care. At this point, my case is directly
binding only on Bartell. Nearly every day, one of my customers
thanks me for coming forward and congratulates me on winning
the case, but many of the women I serve at my pharmacy counter
still do not have insurance coverage for the contraception they
need. I know that some companies are still choosing to ignore
the recent legal developments.
Planned Parenthood has created a web site,
covermypills.org, with tools to help women whose employers do
not cover contraception. But I also know that Title 7, the
anti-discrimination law that my case is based on, does not
cover all women, and even more important, women should not have
to file Federal court lawsuits to get their basic health care
needs covered. So, today, I am speaking for millions of
American women who want to time their pregnancies and welcome
their children into the world when they are ready. On behalf of
the women of this Nation, I urge you to enact this
comprehensive legislation because every woman, no matter what
State she lives in or where she works, should have fair access
to the method of contraception she needs.
Thank you very much.
Senator Mikulski. Thank you very much, Ms. Erickson, for
your testimony. I know it is not easy to--think about going to
court. It is an enormous undertaking. The personal stress, the
financial enormity, is really something when you go against
your employer, and we are going to come back and ask some more
questions about that. What we are going to do is listen to
everybody testify and then come back and ask some questions. I
anticipate my colleagues will be joining me. It is Monday
afternoon and they are trying to get back to Washington, and I
think it is more a problem of airlines and delays, which is a
whole other hearing. [Laughter.]
[The prepared statement of Ms. Erickson may be found in
additional material.]
Senator Mikulski. But I would like now to welcome Dr. Anita
Nelson. Dr. Nelson is representing the American College of OB/
GYNs. She herself is quite distinguished in that field, a
professor at the Department of OB/GYN at the University of
California-L.A., and she is also the medical director of the
Women's Health Care Clinic at Harbor-UCLA. She, in her career,
has focused on contraception, menopause, and gynecologic
infection, often being the principal investigator of several
NIH research grants, writing articles, professional journals,
magazines, the kind of news you can use, and authored books on
contraceptive methodologies for women.
We look forward to hearing from Dr. Nelson, and we know you
speak not only for yourself, but for your field, and we believe
that there are other physicians who have also accompanied you
here today; is that right? So why don't you just proceed and
share with us your profession expertise?
Dr. Nelson. Thank you, Chairman. Chairman Mikulski and
members of the committee, I am Dr. Anita Nelson, as was just
identified, testifying on behalf of the American College----
Senator Mikulski. Dr. Nelson, pick up that microphone a
little bit.
Dr. Nelson. I will pick up that microphone. Is that better?
Senator Mikulski. There you go.
Dr. Nelson. I am just too tall. There we go.
Senator Mikulski. Dr. Nelson, you can never be too tall.
[Laughter.]
Dr. Nelson. --testifying on behalf of the American College
of Obstetricians and Gynecologists, an organization
representing over 41,000 physicians dedicated to improving
women's health care. I am pleased to testify in support of S.
104, the EPICC Act, introduced by Senators Harry Reid and
Olympia Snowe. EPICC would remedy a long-standing inequity in
insurance coverage, not only by providing coverage for
prescription methods of birth control, but also for the
counseling that is needed for their effective use.
Inadequate health insurance coverage of prescription birth
control remains a glaring medical problem for American women.
Contraception is a basic health care need. Non-prescription
forms of contraception, such as condoms and spermicide and
natural family planning, reduce the risk of pregnancy. But
prescription birth control methods are dramatically more
effective and allow couples more spontaneity in their lives.
Sexual expression is obviously an important part of human
experience, or there would not be so much interest in Viagra.
Biologically, we know that women are at risk for pregnancy for
nearly 40 years of their lives. Without contraception, the
average woman could have more than 12 pregnancies, a prospect
that is unappealing to most women and would place the health of
both the woman and her children at risk.
Unfortunately, for far too many American women, their
insurance plans do not cover the cost of their birth control.
Almost half of fee-for-service plans have no coverage of any of
the five most common prescription contraceptives. HMOs have a
better record, but only four out of 10 routinely cover all five
common methods. I have known women who have had to skip their
pills for months because their finances were tight. Perfect
candidates for IUDs have been unable to pay the up-front costs
and have had to settle for less-effective methods.
If a woman cannot afford her birth control pills or an IUD,
she certainly cannot afford a pregnancy. The lack of
appropriate contraceptive choices is one of the greatest
barriers to effective contraceptive use. We will be successful
in reducing unintended pregnancy when women can obtain the
particular contraceptive that best meets their social, economic
and health needs, and when they have full access to
contraceptive counseling that teaches them how to effectively
use their method.
Allow me to briefly discuss the major public health reasons
for ensuring that women have access to contraception. First,
contraception prevents unintended pregnancies and abortions. Of
all the industrialized nations, this country has the highest
rate of unintended pregnancies. Every year, approximately 50
percent of all pregnancies in this country are unintended, and
50 percent of these pregnancies are terminated. Perhaps even
more importantly, contraception saves and improves the quality
of babies' lives. The National Commission to Prevent Infant
Mortality estimated that 10 percent of infant deaths could be
prevented if all pregnancies were planned.
Contraception gives women an opportunity to prepare for
pregnancy, rather than having it happen to them accidentally.
We know that women who take folic acid before they conceive
reduce their risk of having neural tube defects in their babies
by 50 percent. Diabetic women who change their medications
before they become pregnant decrease their babies' risk of a
major congenital anomaly from nine percent to less than one
percent. Interestingly, women who plan their pregnancies are
less likely to smoke or to drink alcohol while they are
pregnant.
Another important point is that contraception allows women
with serious medical conditions to control their fertility.
Pregnancy can be life-threatening to women with serious medical
conditions such as heart disease, diabetes, lupus, and high
blood pressure. Contraception can help these women prevent
pregnancy altogether, or can help them postpone pregnancy until
they are healthy enough. Contraception improves maternal
health. Family planning is critical to improved maternal health
by allowing women to control the number and space the timing of
their pregnancies. Women who conceive within 6 months of
childbirth increase the risk of pregnancy complications.
Very importantly, contraception is cost-effective. Studies
in my own State of California demonstrated that for every
dollar invested in family planning, over $14 is saved. The more
effective birth control methods are the most cost-effective.
For example, every copper IUD placed saves the health care
system and society over $14,000 within 5 years. However, due to
rapid turnover of insured individuals, each individual
insurance company will not reap these economic benefits until
all companies are required to play by the same rules and cover
all prescription methods.
Contraceptive coverage is a basic health care need, just as
is coverage for diabetes and high blood pressure treatments and
vaccinations. Federal legislation is critical. ACOG supports S.
104 and urges the members of this committee to support this
important legislation. I thank the Chair and this committee for
holding this hearing today and for allowing me the opportunity
to testify. S. 104 is important to our Nation's women and their
families.
Thank you.
Senator Mikulski. Thank you very much, Dr. Nelson.
[The prepared statement of Dr. Nelson may be found in
additional material.]
Senator Mikulski. Now the committee would like to turn to
Kate Sullivan, who is the director of health care policy for
the Chamber of Commerce. The Chamber of Commerce represents
more than 3 million businesses in the United States. First of
all, Ms. Sullivan, we welcome you. I know you feel like you are
on the hot seat because everybody is for this bill, and you
have some flashing yellow lights about it, and we want to hear
this. So, relax. We are not going to treat it like a quiz here.
We know you have come with really a great background to the
Chamber. You were the director of government programs at a
nonprofit health system in Chicago, so you have been right out
there in the trenches. You have been a health care adviser for
members of Congress, a dear friend like Congresswoman Nancy
Johnson, as well as Harris Fawell--that is F-A-W-E-L-L, not
Reverend Falwell--and that you worked for Governor Jim Edgar,
the Washington State women are really represented here. We know
that you have an undergraduate degree from Georgetown and a
masters of health administration from GW. So let's hear your
views on this legislation.
Ms. Sullivan. Thank you very much, Madam Chairwoman. I do
appreciate the opportunity to provide the perspective of
employers who are voluntarily providing health coverage to more
than 172 million Americans. Employers do so because having a
healthy workforce is essential to productivity, and most
Americans would be unable to afford or even access a health
plan if they did not have one through their jobs.
Unfortunately, the affordability of this coverage is
quickly evaporating. Last week's report that job-based health
coverage has increased at the greatest rate in nearly a decade
should really be a wake-up call to the Congress. Small
employers are once again the hardest hit, reporting health plan
inflation rates of 16.5 percent on average. For employers of
all sizes, health plan costs are now more than $2,600 a year
for single coverage, and more than $7,000 a year for family
coverage. Given the anemic economy, employers can no longer
keep up with the rising cost of their health plans. Employees
are making bigger monthly premiums, paying larger co-payments
for doctors and prescription drugs, and contributing more
toward their deductibles and coinsurance. 75 percent of large
employers expect to further increase employee costs next year.
The result is that more employees are turning down their
employer's offer of coverage.
One out of four employees who declines workplace coverage
is uninsured, and when asked, they frequently State that it was
just too costly to participate. Further increasing the cost of
health coverage by imposing mandates of any kind, not just this
mandate, really does jeopardize the continued availability of
plans for both employers and working families. So while some
women may gain under S. 104 coverage for their contraceptive
needs, other women may lose their coverage entirely and remain
uninsured, not only for predictable, comparatively nominal
health care services, but also when they are accidentally
injured, require surgery or experience a major illness.
Government mandates also stifle health plans' efforts to
provide consumers with a variety of choices and the ability to
select the benefits most appropriate for their personal
situations. Mandated contraceptive coverage is not the only
government mandate the Senate is considering this year. Last
month, this committee approved a broad expansion of the current
mental health parity mandate. At the end of June, the full
Senate passed managed care reform legislation replete with
numerous mandates, and now this committee is prepared to
further increase health plan cost.
In addition to cost, S. 104 presents other problems for
employers. The bill prohibits plans from conducting quality
reviews to ensure various forms of contraception are being
prescribed safely and appropriately. Plans also face greater
risk from medical malpractice----
Senator Mikulski. Could you repeat that sentence?
Ms. Sullivan. The bill prohibits--there is a specific
prohibition in the bill that prohibits plans from conducting
quality reviews, which often are used to make sure that plans
or providers are prescribing contraception appropriately for a
particular patient.
Senator Mikulski. I will come back to that as a question.
Please continue, Ms. Sullivan.
Ms. Sullivan. The plans also face greater risk from medical
malpractice by being required to cover contraceptive services
ordered by any provider without regard to training or medical
expertise. The Chamber understands and appreciates the
sponsors' good intentions with this bill, and many a well-
intentioned public policy has had unintended consequences. We
believe the Congress is tackling the wrong issue. One out of
six people in this country are uninsured. Women already face
barriers in accessing affordable health coverage because of
their work and income status. A Commonwealth Fund study last
month reported that younger women are far more likely to be
uninsured than older women.
Not only do uninsured women not have contraceptive
coverage, they are uninsured in the event of childbirth, a trip
to the emergency room, or a diagnosis of cancer. Bit by bit,
mandate on top of regulation, on top of more liability,
lawmakers threatened the health and economic security of hard-
working Americans of both sexes. Rather than enrich the
benefits that some already have, Congress needs to reign in its
penchant for mandates. It should halt duplicative regulations
that raise health system costs. Most importantly, it should act
immediately to create new options for private health coverage
and new ways to pay for it.
Thank you.
Senator Mikulski. Thank you very much, Ms. Sullivan. We
appreciate those views and are going to come back to them,
those particularly regarding to quality and who prescribes,
because as Dr. Nelson said, the counseling and the appropriate
method, and, in fact, if any method at all. So, thank you.
Actually, you brought up something I did not know about the
bill. I appreciate that.
[The prepared statement of Ms. Sullivan may be found in
additional material.]
Senator Mikulski. Let's turn to Marcia Greenberger now. She
is the founder and co-president of the National Women's Law
Center. She is an expert on women and the law, fighting for
women's rights in employment, health and education for three
decades, written many articles on legal issues, participated in
key legislative initiatives and litigation, both Federal and
State, to advance the cause of women and their families, and
has often appeared on various talk shows to say in plain
English, without a lot of footnotes and annotations, really the
impact sometimes on the law, either for us or against us, but
most of all has been a very strong advocate of keeping the
courthouse door open to address those grievances so Ms.
Erickson could go to court; a graduate of Georgetown Law and a
member of the American Bar and many other prominent bars. We
welcome you and look forward to your testimony.
Ms. Greenberger. Thank you very much, Madam Chair Mikulski.
It is a particular pleasure and honor to have the chance to
testify before you and this committee. You have been such a
leader on women's health. There are countless protections that
women of this country and their families now have because of
your leadership, and we are very grateful for all that you have
accomplished on our behalf, and are especially grateful, too,
for your interest in this most important topic that is the
subject of the hearing this afternoon.
I would ask that my full statement, with attachments, be
included the record, and just say that I actually am a graduate
of the University of Pennsylvania Law School. So they have to
take me with my accomplishments and my problems, although I am
part of a program at Georgetown Law Center.
Senator Mikulski. That is where I got off-track.
Ms. Greenberger. Yes. So I am proud that I have a
connection there, as well. The National Women's Law Center
began almost 30 years ago, and as you said, we have been
involved in major legal and public policy initiatives to
improve the lives of women and their families ever since. So it
comes as no surprise that the center's involvement in
pregnancy-related discrimination, which is really at the heart
of this issue, dates back to our beginning in 1972, and we were
also involved, not only in litigation on the issue, but the
Pregnancy Discrimination Act of 1978, because it took
congressional action to get maternity coverage in health
insurance plans covered by employers.
I know that the Chamber of Commerce is opposed to mandates,
generally. They were opposed to the Pregnancy Discrimination
Act at that point, as well as they are opposed now. But
sometimes, unfortunately, mandates are the only way that
justice can be served and the ends of fairness can be secured.
I believe that that is the case right now. We were honored to
be a part and working on the Erickson case, and had filed a
petition with the Equal Employment Opportunity Commission on
behalf of 60 organizations, and ultimately the EEOC did, as has
been said, find that it is a violation of that Pregnancy
Discrimination Act and Title 7 to exclude comprehensive
coverage otherwise from employer-provided health insurance
plans.
We have taken those legal victories and actually been
successful in helping a number of women since who have approach
their employers and asked for coverage, and we have a web site,
nwlc.org/pillforus, because we care so much about helping women
and their families around the country get this essential
coverage, as has been described by the other panelists. I want
to just add two points very quickly before I turn to the EPICC
legislation that we have been talking about. One is there has
been a discussion about the importance of protecting women's
health and the vital role that contraception plays.
It is essential. We are, in fact, 21st in the world on
maternal mortality, not a record that the United States should
be proud of, and clearly our record on infant mortality is a
record that needs major improvement, as well. It is far past
the time when contraceptives and better maternity and health
care coverage for women is needed, and we see extended health
care coverage, as Ms. Sullivan said, as essential. We know you
do, Senator Mikulski, and have dedicated a career to working
toward that end. But we also have to be sure, not only that
women and their families have insurance, but the insurance they
have covers their core health care needs, like contraception.
Now let me turn for a minute to talk about why EPICC is so
important, even with some of these victories in the courts and
with the EEOC now on our side with Title 7. These laws and also
the State laws where they exist--but these Federal laws deal
with employer-provided insurance plans that provide
prescription drug coverage if an employer is covered by Title 7
and the Pregnancy Discrimination Act, a law that prohibits
discrimination in employment and protects women.
Well, employers are only covered if they employ 15 or more
employees. Of course, for those employers who do not provide
insurance coverage at all, individuals must go to other group
plans or buy individual insurance in order to secure health
insurance coverage. So millions of women receive their
insurance from a source not covered by Title 7. 16 million
Americans obtain health insurance from private insurance other
than employer-provided plans, people who are self-employed,
employed by employers who offer no health insurance, as I said,
part-time, temporary, and contract workers, others.
Women are disproportionately represented in a number of
these categories, especially part-time, temporary, and contract
workers. Moreover, since only those employers with 15 or more
employees are covered by Title 7, that leaves out 14 million
workers who are employed by entities that fall beneath this
threshold. We know from unfortunate experience with maternity
coverage after the passage of the Pregnancy Discrimination Act
of 1978, that legislation like EPICC is essential to provide
protection for those women. Just as is true with contraceptive
coverage, before 1978, when Congress stepped in, it was common
for insurance companies to exclude maternity coverage from
their plans; basic prenatal delivery services were not in their
standard policies.
Now, in looking at what has happened over 20 years later,
we see it is commonly covered now in employer-provided plans,
but because there is no legal mandate to do so, insurers do not
always include this in their standard benefits package. In
fact, in some studies cited in my written testimony, we see
this is a serious problem for women having to buy their own
health insurance even today. In short, the contraceptive
coverage problem will not take care of itself, unfortunately,
without congressional action.
Finally, I want to respond to a couple of the points that
Ms. Sullivan raised. First of all, most of her testimony was
based on the premise that this legislation would add to the
cost of insurance. The other witnesses described in some detail
why that premise is actually faulty. By covering
contraceptives, employers will reduce their costs. We saw with
the Federal Government no costs were incurred, no budgetary
cost, no premium cost, and there have been a series of
employer-provided studies that have actually shown--a Mercer
study in 1998--that employers would save money, not cost money,
if they covered contraceptives.
A study by Gardner and Strader in 1996, that an employer
saved 11 percent of its cost in just 1 year after covering
contraception. The Washington Business Group did a study in
2000 that talked about what the average cost savings would be;
17 percent of all cost, 14 percent of direct costs would be
saved. These cost savings are estimates from business studies,
as well as the Federal Government's actual experience.
My last point has to do with what I believe is Ms.
Sullivan's misreading of EPICC, that it would interfere in any
way with quality reviews or with the ability of insurers to
deal with who prescribes. It simply puts those decisions on the
same footing as any other decisions that insurance companies
make. It protects against having more stringent requirements,
but it allows the insurers and the employers to have the same
requirements that they would have for any other provider
requirements or quality insurance requirements. So I think that
was a misreading and should not cause a problem.
So, as a bottom line, this is a piece of legislation that
makes bottom-line sense, dollars-and-sense sense, common sense,
and sense in terms of human costs that can be so devastating as
a result of unintended pregnancy. I will add one final point,
that for some employers and some insurance companies, their
exclusion of contraception is so extreme that they will even
exclude it when it is being prescribed, not to prevent
pregnancy, but to deal with other health conditions,
dysmenorrhea or other health conditions. Clearly, it takes
Federal legislative action to set this problem straight.
Thank you.
Senator Mikulski. Thank you very much, Ms. Greenberger.
[The prepared statement of Ms. Greenberger may be found in
additional material.]
Senator Mikulski. First, I want to note that our colleague,
Senator Patty Murray, has landed. I am going to ask questions
for about five minutes and then turn it over to Senator Murray
for a statement or whatever.
Senator Murray, you should know, though, you have one
current constituent from the State of Washington here, Ms.
Erickson, but also Ms. Sullivan is from the State of Washington
and actually worked in a community--aren't you from the State
of Washington?
Ms. Sullivan. I had worked for the Governor, in Chicago. I
have a sister on Mercer Island, though, who voted for you and
is a big fan. [Laughter.]
Senator Mikulski. Also, I want to note that Senator
Jeffords, our colleague, has a statement for the record, and we
ask unanimous consent that it be included, and it is so
ordered.
[The prepared statement of Senator Jeffords follows:]
Prepared Statement of Senator Jeffords
Madam Chairwoman, I am pleased that the full Committee is
having this hearing today to discuss the issue of contraceptive
insurance coverage. This is especially true given the June
decision of a Federal District Court in Washington on this
issue. The Court ruled that an employer's failure to cover
prescription contraceptives in its otherwise comprehensive
prescription drug plan constitutes gender discrimination in
violation of Title VI I of the Civil Rights Act of 1964.
As we in Congress have closely examined health insurance
coverage, we have seen a growing disparity between men and
women. Out-of-pocket health care expenses for women are 68
percent higher than those for men, and most of the difference
is due to non-covered reproductive health care. The vast
majority of private insurers cover prescription drugs, but many
exclude coverage for prescription contraceptives. Most plans do
cover abortion and sterilization, but will not provide coverage
for reversible contraception. This is an issue that the
Congress should and must address.
I am proud to be a cosponsor of S. 104, the Equity in
Prescription Insurance and Contraceptive Coverage Act, and am
pleased that the sponsors of this important legislation are
here with us today. This legislation requires a health
insurance plan that provides benefits for Food and Drug
Administration (FDA) approved prescription drugs or devices,
must also provide benefits for FDA-approved prescription
contraceptive drugs or devices. Furthermore, it requires that
if a plan covers benefits for other outpatient services
provided by a health care professional, it must also cover
outpatient contraceptive services.
Thank you again for holding this hearing. I look forward to
continuing to work with you and our other colleagues on this
important issue.
Senator Mikulski. Also, again, our colleagues, I know, are
facing these airline situations. For any of our colleagues who
wish statements either for or against the legislation, the
record will be open for another 2 days to ensure that their
statements will be included. The other is--I know Ms. Greenberg
challenged you, Ms. Sullivan, and we will give you a chance to
respond. One of the things we are going to do with the hearing,
though, because the women of the Senate, on a bipartisan basis,
are really working hard for what we call the Civility Zone. So
we are not going to run it like ``Hardball.'' We are not going
to run it like ``Softball,'' either. But we will give you a
chance, because there are issues related to cost I know you
want to comment on, and then we can proceed.
But let me turn first to Ms. Erickson. A young woman,
starting her career, her marriage--going to court is an
enormous undertaking. First of all, the motivation to go to
court, the time that it will take, the money, and then also you
were not just suing. You were suing your employer. That
obviously required tremendous motivation on your part. Could
you tell us what was what you encountered in your day-to-day
activity as a professional that so motivated you to take such a
very, very big step, and to take it all the way up to the U.S.
Supreme Court?
Ms. Erickson. Thank you. I just want to say hi to Senator
Murray, so I am glad that you are here today.
Well, I guess I was just tired of being yelled at all day
long by women. So there are so many women customers that I have
that were angry about the fact that their prescription
contraception was not covered, and as far as the women that I
work with at Bartell Drugs, too, were also upset. The position
that I had--I am currently pharmacy manager, and it seemed like
I was the only one that was in a position to do anything about
this. So I did write a letter to my company. I never imagined
that I would have to go as far as making a lawsuit. I thought
it would not be that hard to change their policy. But here I
am, and they have changed it. Unfortunately, it is not enough.
We did have a recent insurance commissioner hearing in
Washington State, and there are still a lot of companies in
Washington that feel that, ``Well, this case is up for appeal,
it may not hold. Who knows what is going to happen?'' So thy do
not really feel like they should change their policy yet, and I
really thought it was important for me to be here today because
of this fact, because there are so many States that still do
not have laws that mandate----
Senator Mikulski. 34 of them.
Ms. Erickson. Yes--mandate laws that cover prescriptions.
So that is why I am here, and I feel very strongly about it. I
still have women that come into my pharmacy all the time, and
they are so happy that someone has done something about it.
Senator Mikulski. But, Ms. Erickson, first, if I could,
when you went to your employer--I am using you both
literately--not using you, but for witness purposes, not only
you, but you metaphorically, again--you are a trained health
care provider. You are part of the team. When you wrote your
letter and tried to go up the chain of command, if you will, at
a retail pharmacy, what were the obstacles that you ran into,
and why did they say no and continually rebuff you? What was
the rationale? What exactly did you encounter, both from a
climate standpoint and a content standpoint?
Ms. Erickson. Well, when I wrote the letter about a year-
and-a-half ago to their human resource department and asked for
them to change their policy, their response was just that, ``We
do not feel that it should be covered at this time,'' and it
really was not any more than that. The answers that I got from
people were, ``We just do not feel like it should be part of
our policy. It is too expensive. It is going to add cost,'' all
that kind of thing.
Of course, from the testimony that was heard today, it does
not add cost. It saves cost. That was pretty much the response
I had from my employer.
Senator Mikulski. Well, let me then turn to Dr. Nelson.
Dr. Nelson, we are going to get into cost and so on, but
cost/benefit is always not as precise as people think. I want
to go back, not to your research or your academic positions,
but do you continue to see women in clinical practice?
Dr. Nelson. All the time.
Chairman Dodd. We heard, essentially, how cheap
contraceptives are. In your clinical practice, $30 a month--I
am going to be the devil's advocate here--because you know my
advocacy for the legislation. What do you hear in your practice
about this? Why is it that women cannot afford this? $30 is
less than going to McDonald's once a week, over the course of a
month. What is the big deal here?
Dr. Nelson. Because it is a big deal; 30 bucks is 30 bucks,
and I work in indigent health care, and for a lot of women,
that is a week's worth of food. Ironically, many indigent women
are covered by Title 10, pharmacies and programs like that, so
we have that. But I have a lot of patients who I see who are
working poor, who are working at McDonald's and maybe they can
pick up a hamburger there, but they certainly cannot pick up
their contraception. So helping them control their fertility is
desperately important.
It is not just 30 bucks. It is 30 bucks a month, and that
adds up to a lot of money over a year. It is also the IUD up-
front cost may look very big, although if you amortize it over
the 5 years, she still has to come up with the dollars. I have
had patients who could not get their Norplant out because their
insurance company did not put it in, so they did not think they
needed to take it out. So this whole issue of women being able
to control their fertility, either by preventing pregnancy or
by enabling it by the removal, is very important to equity and
to women's rights overall.
I would like to underscore, if I could, this other issue
that was raised. I have patients who are using forms of birth
control pills in menopause. There is a birth control pill we
use in breast-feeding women that works very nicely to balance
the estrogen for menopausal women, and they cannot get that
prescription unless I indicate on there that it is not for
contraception, and then I still have to write little letters to
try to support that. So anything that could possibly be used
for contraception will not be covered unless there are three,
four or five stars on there, proving that it is not going to be
used for contraception, which is a curious position.
Senator Mikulski. Well, let me even go farther then. As you
know, there are over-the-counter methods for birth control, and
spermicides, condoms, etc. Why, if you do not have a lot of
money--why can't you just go over-the-counter?
Dr. Nelson. Well, for one thing, it depends upon how often
you are having sex. If it is only a dollar an episode, it
depends on how many episodes. That could easily be $30 a month,
too. Then you have to put in the issue of they do not work as
well, and you are running a bigger risk for pregnancy. The
average failure rate for condoms, if women use condoms for a
year, an average of 12 out of every 100 women will get
pregnant. If you use spermicides alone, just for 6 months, 26
women out of 100 will get pregnant. So there are huge
pregnancy-related costs that do not appear on the up-front cost
that we have to factor in when we are figuring the cost-
effectiveness of methods of birth control.
Senator Mikulski. This will be my last question for this
round, because my time is up, and I will turn to Senator
Murray. You talked about the counseling, and I know one of the
issues Ms. Sullivan raised was the appropriateness of the
prescription, if a prescription is appropriate at all. Could
you elaborate on what you find? There are those who, for
example, some of my providers, and someone who has said,
``Senator Mikulski, you would be surprised how little, often,
young women know about themselves;'' that, second, even when
they have been married--and they do not know about themselves,
they do not know about their bodies; they do not know if they
have had other kinds of medical conditions where one needs to
really monitor for preparation for pregnancy and so on.
Could you share with us what the counseling means? Is the
counseling about how to practice better birth control, or is
the counseling more than that, and is actually a form of
primary care? Could you elaborate on that?
Dr. Nelson. Certainly. Contraception will not work unless
women know how to use it. To know how to use it, you need to
know how your body works. I certainly underscore--in my
experience, I was just talking to a group of mothers,
adolescent mothers, who told me that they had learned--of
course, from their peer groups--that the best method of birth
control was to drink a lot of orange soda right after sex.
Looking around the room at all the mothers that were there,
clearly orange soda was not working. The myths that are out
there--it is so important for women to know, yes, how it is
that their bodies work so that they can make their method of
birth control work, and to know how important it is to plan the
conception of their children, not just the delivery, but to
know how they need to be in good health. This whole
reproductive health counseling is what we are hoping for from
this bill for all women.
Senator Mikulski. Thank you very much, Dr. Nelson. We will
be turning to others for questions.
Senator Murray, our dynamo Senator.
Senator Murray. Thank you, Madam Chairman, and really thank
you for having this hearing on, I think, a really important
issue facing women and men across this country. I really
appreciate your having this and I appreciate your holding it
until I got here, my flight got in.
Ms. Erickson, I just have to tell you it is great to have
you here in the other Washington to share your story with so
many others. You really are a hero at home, where you took on
an issue that was not easy to take on, including your own
employer, including a lot of issues surrounding it, and it took
a lot of courage, I know, to do that. But you have made a
tremendous difference in the lives of many women in my home
State of Washington, and now have the opportunity to do that
nationwide, and all of us owe you a great debt of gratitude.
You have not only changed some insurance policies--have the
opportunity to change more insurance policies--but I think
really have raised an awareness issue about this that was not
there before you took this to court. We always find that you
make a difference when you educate people, and so there are a
lot of people out there now who have been educated about an
important issue, a women's health care issue that they either
did not want to think or did not want to go into before. You
have made it okay to talk about, and I really want to thank you
for that. I think that took a lot of courage, but you have made
a difference, and thank you very much from the bottom of my
heart, and I know from many of our constituents out in
Washington State and across the country.
It took a lot of courage to do this. Did you think a lot
about it, or was it just a matter of you were mad and you
wanted to do something about it?
Ms. Erickson. Like I said, I never thought I would have to
file a lawsuit. So as far as--we went through a whole process.
We went through the EEOC and this was kind of the next step,
but it just seemed like there were so many people who were
supporting it, that were supporting me. People I worked with
were very supportive. Customers were very supportive. So there
were definitely times when it was hard, but just the support of
the people I worked with was really helpful.
Senator Murray. Has there been any backlash from your
employer?
Ms. Erickson. No. Bartell Drugs is a great company to work
for and I really enjoy working for them. As far as any
backlash, no, there has not been any.
Senator Murray. Have you heard a lot from women who now
come into you to thank you for what you did?
Ms. Erickson. Yes, it has been a little weird sometimes,
but it has been great. It has been great to have people come
and say because of your case--I never would have written a
letter to my employer, I never would have done this without
someone else doing it. People said I always was mad about it,
but I never did anything about it until you did something about
it. It is kind of like that bandwagon, especially when you
mentioned raising awareness. I remember last summer when we
filed the case, there were so many people that said they never
new this was an issue or never knew this was important. And now
because of the case, because of the publicity, people are much
more aware of it and saying yes, it should be covered.
Senator Murray. You are a folk hero and we all appreciate
it very much and look forward to continuing to make a
difference building on what you have been able to accomplish.
Thank you very much.
Ms. Erickson. Thank you.
Senator Murray. Dr. Nelson, often we hear that moral
arguments or the religious arguments are surrounding this, but,
to me, this is really a women's health care issue. You started
to talk about it a little bit in your response to Senator
Mikulski a minute ago, but can you describe for the committee
and for our record why it is a women's health care issue, in
particular, having equal access to contraceptives?
Dr. Nelson. In basic biology 100 percent of pregnancies
occur to women, and the complications of the pregnancy on the
woman's health, the complications of the pregnancy outcome,
making sure that women have contraception, so they can plan for
pregnancy and most importantly prepare for it--to make sure
that they are taking the iron and vitamins, that their
nutrition is appropriate, that they had been screened for all
the infections that they might inadvertently pass on to the
baby when they are pregnant, before they become pregnant.
Waiting for accidental pregnancy and catching up with early
prenatal care is not enough in the year 2001. We need to make
sure that women are prepared for pregnancy, and the way to do
that is with effective contraception, and the way to make sure
every women has it, is making sure she has the coverage for it.
Senator Murray. There are some women, who because of health
care conditions, cannot become pregnant or it is a serious
impact to their own health. You mentioned just a minute ago in
response to a question that you had to specify that
contraception was because of another health care. Did that make
a difference? Do some insurance companies provide coverage
under those--or are there insurance companies that preclude
anyone from covering contraception, even if it has something to
do with someone's health care other than becoming pregnant?
Dr. Nelson. I have not personally had that as an issue, but
I have heard reports in other States. I come from California,
and we have now the Contraceptive Equity Act. But there are
still some women who are not covered by that because of the
other programs----
Senator Murray. Even if it could be a serious consequence
to them, say they are a diabetic or have another health care
problem; it may not be covered if----
Dr. Nelson. Unless I justify that it is not related to
contraception, which leaves you the issue what about the
contraception? In the bad old days in California, we still have
that as an issue.
Ms. Greenberger. Senator Murray, I know outside of
California the EEOC dealt, for example, in one of its opinions,
with an employer who would not cover the cost of
contraceptives, even though it was not being prescribed to
avoid pregnancy, but to deal with a health condition of a woman
unrelated related to that. So we know, as a matter of fact,
that for a number of plans and employers, their exclusion of
contraception goes to such extremes that it does not even cover
the cost of the contraceptive when being prescribed for a
nonpregnancy-related condition.
Senator Murray. We have heard some of the economic
arguments, which just goes to the reason not to do this is it
may cost money, and Ms. Sullivan, I am sorry I missed your
testimony, but I assume you went somewhere around that in your
testimony. I am curious, when insurance companies make
decisions like this, is it based totally on economics? Is this
going to cost us too much?
Ms. Sullivan. Well, I am here representing employers, not
insurance companies, and employers really do feel like they are
sort of at the mercy of what insurance companies are telling
them what this year or this quarter's premium is going to be. I
think that the issue here is--that it really depends--when an
insurance company prices insurance for a group, it really
depends on what that plan is already covering and what the
group looks like. Is there a very high potential that many
women would avail themselves of this benefit? If so, the cost
for you is going to be that much higher.
Others have cited the FEHBP impact. Many of those plans are
already covering at least some form of contraception. I can
remember in 1987 being a very low-paid first-year Hill staffer
in the House, that the largest plan at the time did not cover
contraception or even routine visits to the doctor, and it
actually did take a note in order to have it covered for an
unrelated condition. Health plans have changed. They are
evolving. Many employers do offer a choice of plans, which is
hard, so you cannot do it if you are a small business, and
small businesses frequently offer a managed care plan because
it provides access to so many of these very popular, highly-
demanded benefits like preventive health care and greater
access to coverage. The more traditional health plans, usually
this covers sort of the major medical, those things that you
cannot plan for, the really unexpected cases, and often they
provide employees the ability to save for these routine,
expected, predicted expenditures through a payroll deduction on
a tax-free basis, and the money is made available to them on
January 1st or the first day of that plan year.
It is a trade-off, and to the extent that we want all plans
to look more like HMO plans because they provide a lot of
preventive health services up front, but we want them to have
the freedom and no restrictions of indemnity plans, those plans
are going to start getting really expensive, and our concern is
that more people will not be able to continue to afford to
participate in their health plans offered at work.
Senator Murray. Ms. Greenberger, you talked a little bit
about the economic analysis and what you have looked at. What
is the economic analysis in terms of what it will cost
insurance companies to provide it, and the cost of not
providing this kind of coverage?
Ms. Greenberger. Well, there have been several studies done
actually by employer-based groups that have come to the exact
opposite conclusion from Ms. Sullivan, and, in fact, have
determined that it will save employers money if they cover
contraceptives. So because it is not just a question of the
cost of the contraceptive, per se, and those estimates have
been about $1.43 a month. I saw another one, $1.43, $1.42 a
month; not a very big cost alone. But you balance that against
the savings in maternity coverage, in newborn coverage. It can
be, in a Mercer study, $61,000 for prenatal care for a
complicated delivery of a newborn. Newborn care can cost from
$2 to $20,000. There is absenteeism related to pregnancy and
unintended pregnancy, loss of productivity, stronger employee
morale.
So an employer's cost has to take all of those
considerations into account, and that is why each of these
studies has found, when you add them all up, there is actually
a substantial savings of money to employers. As I mentioned,
there was a study of a particular employer who, in just the
first year alone, saved 11 percent of costs. The Washington
Business Group just last year found that it would lead to a 17
percent savings in cost, all costs, if contraceptives were
included, and 14 percent just in direct health insurance cost
if contraceptives were included; and that, of course, does not
even speak to the cost of women and their families in having
the kind of health conditions and unintended pregnancy
consequences that not only affect their health, but also their
future earnings potential.
There are newspaper stories, unfortunately too much in the
news over the last few weeks, about pregnancy discrimination,
women being told that they cannot be hired or they cannot go to
school if they are pregnant. We see women who have to pay and
earn salaries to help support themselves and their families,
and it is devastating for these women, just as a human matter,
to have to deal with the cost, the human cost as well as the
out-of-pocket cost.
While it is fair to look at cost and to be serious in
assessing what those costs would be, we see here it is not just
a question of cost savings, but as we talked about before, it
is so unfair to think and so discriminatory to think that the
major FDA-approved contraceptives that are routinely excluded
from health insurance plans are contraceptives, and that is
plain and simple sex discrimination. We have a principle in
this country that cost is not a defense to discrimination. It
is not a defense to paying women less, that it will cost
employers more to give them equal pay, even though we know
employers have sometimes complained about having to give women
equal pay. This is really a form of equal pay. This is their
compensation. This is part of what they are working for, health
insurance benefits, and they deserve the same value from their
health insurance plans as their male colleagues have, as well.
Senator Murray. I see my time has expired, but I again
appreciate all of you coming and testifying on this.
Ms. Erickson, especially to you again, thank you for
traveling all the way across the country, and I look forward to
working with you as we continue forward.
Madam Chairman, thank you for your leadership on this
issue. I look forward to building on what we have done in
Washington State across the country.
Senator Mikulski. Good. My State is one of the ones that
has the law already. [Laughter.]
Let me come back to you, Ms. Sullivan, for a minute. You
raised some issues related to quality assurance, etc. Could you
restate what you said in your testimony about what the
legislation prohibits and your concern about that, please,
around quality assurances?
Ms. Sullivan. Right. My fellow witness over here said it
may be a simple misreading of the bill, and we frequently take
care of these things by working to clarify that truly the
intent of the bill is actually the way this is spelled out.
Senator Mikulski. Sure. We do not see it as----
Ms. Sullivan. We certainly want to make sure that because
employers are responsible for the health plans--we know that
they can be held liable for what those plans do for the
networks that are put together--we want to make sure that plans
can do the quality review to make sure that contraceptive
devices are being prescribed appropriately to someone that
would not be considered to be at risk, and that the proper
professionals with the right training are the ones who are
prescribing these.
Senator Mikulski. Well, I would like to instruct the Senate
staff working on this, both majority and minority, to meet and
discuss this with you and perhaps Ms. Greenberger, to be sure
of this, because if we are going to do legislation, we want
quality assurance, as well. It is in the interest, not only of
the employer, to get value for their premium, but after working
this hard to accomplish the legislative objectives, we, too,
believe in quality assurance, though I believe that one of the
best cost savings, ultimately, as well as quality assurance, is
an item in the Patient's Bill of Rights that would say that
access to an OB/GYN for a woman is equated with access to a
primary care physician, exactly what we said.
Many of these young women have undetected situations. It
could be the beginning of Type II diabetes. We see that now
with the weight gains in younger children. You see that. Also,
they embark on what they are ready to be embarked upon, both
physically and emotionally. So I feel that this is really a
significant issue, to give access to the OB/GYN and others
within the team, because I am sure you work very closely with
the nurse midwifery position. But did you want to comment on
that, Dr. Nelson?
Dr. Nelson. I very much appreciate what you just said, but
as we are reviewing those finesse points of the legislation,
again, according to the support that we had for the Patient's
Bill of Rights, to make sure that the health plans are out of
the business of second-guessing the physicians in terms of who
is the appropriate candidate for an IUD or for birth control
pills; that that really ought to be, as much as possible, a
decision between the woman and her physician.
The scope of practice within each of the State laws will
dictate who can give contraception. I am not thinking that
podiatrists are going to try to put in IUDs. That is going to
be well taken care of within existing frames; so that as we are
talking about quality assurance, certainly that must be done,
but not within the intrusions.
Senator Mikulski. I will tell you, when we embarked upon
mammogram quality standards, we had people doing mammograms
using x-ray equipment, the x-ray technicians were not prepared.
But let me come back to Ms. Sullivan.
Ms. Sullivan, actually I think we all need to be clear. Ms.
Sullivan is representing employers. She is not an insurance
company, and I think we have to acknowledge that for our
employers, they are caught in the middle between the people who
work for them and their needs, and an American health care
system that is not a comrade care system, but based on private
insurance, Medicare and Medicaid; that is our triad. So it is
the needs of the employee and then the escalating cost of
private insurance. So what the Chamber is saying is that they
are worried about the cost in order to meet their
responsibilities.
Is this kind of where we are heading in this?
Ms. Sullivan. I just want--and I emphasized this in my oral
remarks, as well. It is not just this requirement. Perhaps this
will have no cost, depending on what your plan covers now and
who is enrolled in your plan. If you are a very large business,
such as those who typically belong to the Washington Business
Group on Health or who use William Mercer for their consulting
services, they tend to be able to absorb cost much more
readily, and, in fact, studies like that are very beneficial to
employers of all kinds, because they show that while there may
be some initial up-front costs here, it is how it will benefit
you in the long run.
We do not support a mental health parity mandate, but we do
encourage employers to find out how it is that productivity can
be enhanced through the better use of SSRIs to treat
depression. It really does come down to cost. It is not just
this one. It is not just mental health parity. It is not just
the ones that are in the Patient's Bill of Rights. It is sort
of all this rising factor that employers are redesigning their
health plans to cover more benefits, to give their employees
more choice, more access to a broad range of providers. States
have been passing a lot of these mandates, and employers have
been complying with them when they offer those insured health
plans. We have seen the cost of those insured health plans rise
at a rate far greater than employers who self-insure, and that
is the result of those mandates, those requirements.
Putting all that aside, though, probably the biggest cost
driver in health coverage right now is prescription drugs, and
Ms. Erickson certainly knows this. Employers have been
redesigning their health plans to raise those co-payments when
they get those prescription drugs filled. Some have gone from a
flat dollar amount to sharing in a percentage of the cost of
the drugs. Some of them have increased their co-payments to $30
per prescription, and at that point, you will have taken away
any of the economic effects to the consumer that would be put
forth under this bill, or force more employers to go----
Senator Mikulski. That is exactly right, and we know that
the whole cost of prescription drugs and how to meet our social
responsibility will be the subject, also, of what to do in the
area of Medicare. That is why I said at the opening of the
hearing that women really pay a gender tax, not only on the pay
issue, in which gains are being made, not only in the fact that
we are penalized in Social Security because of our time out for
child-bearing and child-rearing, and this particular issue.
Then, when you get old and you are on Medicare, you tend to be
the survivor again, and you are paying for prescription drugs
there.
We have done a very good job in reducing the marriage
penalty. Now I think we have got to really take a look at how
to reduce the gender tax and, at the same time, acknowledge
that there are other costs. I will tell you a fact that was so
disturbing for me--and, Dr. Nelson, I would like your viewpoint
on this--that 50 percent of the pregnancies in the United
States are unwanted. That is a pretty big number, and of that
50 percent, 25 percent end in abortion.
Dr. Nelson. It is 50 percent of the unwanted pregnancies,
unintended; so it is 25 percent overall.
Senator Mikulski. Then the other 50 percent are initially
unwanted. I know very few people, when the baby is born--of
course, adoption is an option--but that often it is not only
the unintended, it is the unprepared. It is the low birth
weight. It is the premature baby, the significant cost of the
dazzling breakthroughs we now have in neonatal care, and it is
marvelous what we do, but it is expensive. I think we ought to
spend the money. But could you share with us really what you
see, both in your practice and in your work with the American
College? This issue of abortion because of unintended is really
troubling. What is the view from the clinical side here?
Dr. Nelson. I think every one of us would like women to be
totally prepared for pregnancy and plan for pregnancy. That is
our goal, our image of where we want to be in this century for
women. To let pregnancy happen by accident, whether it is
acceptable or unwanted, is really from a medical standpoint
unacceptable today, because it encourages so much risk. We know
that we get better babies and healthier mothers and better
families if women are prepared, not only from a financial and
an emotional standpoint, but just from a pure medical
standpoint.
Why not get the pap smear on that lady before she gets
pregnant so we can treat her cervical dysplasia before she gets
pregnant? Why not make sure she does not have chlamydia before
the baby catches it, or she has some other infection? That is
our goal, and we do not there unless we have access to
contraception for women. It is a very important medical issue,
as well as the other issues that we have talked about in terms
of equity for women and fairness and opportunity.
Senator Mikulski. Well, Senator Murray, did you have any
other questions?
Senator Murray. I am done.
Senator Mikulski. First of all, we want to thank everyone
for their testimony, for the breakthrough people like Ms.
Erickson, to Dr. Nelson, to Marcia Greenberger, and you, too,
Ms. Sullivan. We acknowledge the issues facing employers, and
quite frankly in all that we have done on the tax bill this
past year, what I felt was that instead of across-the-board,
big-buck tax breaks to other big-buck people, we should have
had targeted tax cuts exactly to go to the employers. I am from
a family of small business grocers, my grandmother having the
best Polish bakery. So I often think, suppose we were still
running that bakery, what would be the cost? So we are very
mindful of that, and I would really look forward--in addition
to while we are looking at how to provide comprehensive
coverage to women--how we can also work with the employers, the
good-guy employers who, using our tax code and perhaps other
government mechanisms to really work with employers, to give
help to those that practice self-help, and not only the self-
insured, because I think if you are an employer and you are
willing to step forward and provide health insurance, that
means you are also inviting the mandates. Well, I believe we
should not create unfunded mandates and we should be addressing
this in the tax code.
Ms. Sullivan. I appreciate your saying that, and that is
the health care priority for the Chamber. I really do look
forward to working with you and the committee members.
Senator Mikulski. You mean the tax breaks for health
insurance?
Ms. Sullivan. Anything possible to get more people
affordable health coverage in this country. There is a long
range of things and I have got some good--I have got ideas----
Senator Mikulski. You started to say, ``I have got some
good ideas.'' Do not be modest. We did not put you in the
middle to keep you in the middle. I hope you felt that your
views were met with respect, and also we acknowledge the
validity of those flashing yellow lights that you have raised.
We are going to also be in a big battle on the prescription
drug issue and we really welcome your views on this, because
prescription drugs, particularly in the Medicare population--
and once we deal with that, I believe it will drive all
frameworks for prescription drugs. Do you agree with that, Ms.
Sullivan?
Ms. Sullivan. I think it is really important, certainly
to--it is a big concern with employers, about their rising drug
cost, particularly for the retirees who are on Medicare. They
want to continue to be able to provide that coverage to their
retirees. They made a promise to them to help them with their
health care costs as they rise, and I think it is very
important, in addressing this Medicare coverage for
prescription drugs, that you continue to work with employers to
make sure that they continue to maintain that coverage, or
otherwise the price tag just goes way up at that point.
Senator Mikulski. I am sure Ms. Erickson is already hearing
it from the old-timers; am I right?
Ms. Erickson. This is what people complain of, as far as
contraception, and I get all the elderly customers about drug
prices. That is like the huge complaint I get at the pharmacy
counter. I just say, ``You know, we do not make money on
prescription drugs anymore. We have got a huge photo department
and we sell lots of cards. That is how we make money as a
pharmaceutical chain.''
Senator Mikulski. Before this hearing closes, we have
thanked you for your willingness to go to court on behalf of
other women, but I want to thank you for the role you play as a
retail pharmacist. My own mother, with her diabetes, and my
father with Alzheimer's and so on, the pharmacist was the one
that kept everything straight for us, to make sure their drugs
were not contraindicated. There was a time when the cumulative
effect of one prescription with the other had a negative
consequence. In my day, growing up in the neighborhood, we
called the pharmacist ``Doc,'' because they were the first
health professional you often went to. We really know that you
come with an enormous amount of training and skill, and almost
like the employer, you are not the one who sets the price, but
you get the grief. So we want to thank you. We want to just
thank you for being on the front line. We want to thank you for
working with the families, often of moms and dads, like in our
own cases, that were too sick or too bewildered sometimes by
the contraindications and so on. So we think the pharmacists
are just great, and we are very well aware of the pharmacist
shortage.
But we will not go there on how we are going to pay for
that. [Laughter.] But, again, we want to thank everyone,
because here is my observation--I think Senator Murray would
agree. Every woman at this table has made a difference in what
they are doing, in each and every one of your fields of
endeavor. But do you know what? We will work together, we are
going to make change, and by the time this sessions adjourns, I
think we are going to have a bill that everyone at the table
feels good about, but most of all the American women feel
secure about.
Thank you very much.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Congresswoman Lowey
I want to thank Chairman Kennedy, Ranking Member Gregg, my good
friend Senator Mikulski, and distinguished members of the Committee for
hosting this important hearing. It's an honor to speak in support of
the Equity in Prescription Insurance and Contraceptive Coverage Act.
I believe contraception is basic health care for women, and that
universal coverage for the full range of contraceptive methods is long
overdue.
EPICC was first introduced in 1997 by Rep. Jim Greenwood and I in
the House and Senators Olympia Snowe and Harry Reid in the Senate, and
would require that health insurance plans cover prescription
contraceptives in the same manner that they cover other prescriptions.
My colleagues, now is the time to take action and pass this bill.
Although abortion rates are failing, today--still--nearly half of
all pregnancies in America are unintended and half of those will end in
abortion. Increasing access to the full range of contraceptive drugs
and devices is the most effective approach to reducing the number of
unintended pregnancies--a goal we all share.
Furthermore, planned pregnancies are healthier pregnancies. By
increasing access to family planning infant deaths will be better
prevented, more women will receive adequate prenatal care, and more
sexually transmitted infections will get diagnosed and treated.
Support for contraceptive coverage has only grown. According to a
recent national survey, 87 percent of Americans support women's access
to birth control, and 77 percent support laws requiring health
insurance plans to cover contraception.
Their message is clear: If we want fewer abortions and unintended
pregnancies, we must make family planning more accessible.
And the truth is, we're making progress. Since we first introduced
EPICC, 16 states--including California, Connecticut, Delaware, Georgia,
Hawaii, Iowa, Maine, Maryland, Missouri, Nevada, New Hampshire, New
Mexico, North Carolina, Rhoda Island, Texas, and Vermont--have enacted
contraceptive parity legislation.
Beyond requiring plans to cover prescription contraceptives because
it is good for women's health and reduces abortions, it is necessary to
ensure the fair treatment of employees and their families.
Currently, women of reproductive age spend 68 percent more in out-
of-pocket health care costs than men. This inequity persists in large
part because the majority of insurers exclude coverage of reproductive
health-related supplies and services.
That's why in April, a federal court ruled that Bartell's, a large
drug store chain, left a ``gaping hole'' in health care coverage for
its female employees because their health plan excluded contraception.
The Equal Employment Opportunity Commission (EEOC) also ruled in 2000
that not covering contraceptives is sex discrimination.
My colleagues, we cannot turn a blind eye to these recent
developments. It's time to close our country's health care gender gap.
I was proud to lead the successful fight to add contraceptive
coverage for the 1.2 million American women participating in the
Federal Employees' Health Benefits plan. It was an important first
step.
Before the contraceptive provision was enacted in FY 1999, 81 % of
all FEHB plans did not cover the most commonly used types of
prescription contraception (oral contraceptives or the pill, IUD, the
diaphragm, Norplant, Depo Provera), while a full 10% covered no
prescription contraception at all.
Women need the full range of options because not every woman can
use every form of birth control. Many women cannot used the pill--its
side effects, such as migraines, can be truly disabling for some. Other
women choose not to go on the pill because they are at special risk for
stroke or breast cancer.
Isn't it clear that women and men who want to have families, and
want to plan their pregnancies, need more and better options?
The American public thinks so, the courts think so, Republicans and
Democrats alike think so.
Mr. Chairman, we can work together to reduce the need for abortion
and help Americans plan their families. Once again, thank you for
allowing me to address the Committee. I am so pleased that this hearing
is taking place, and strongly believe that this is a move in the right
direction.
Prepared Statement of Senator Snowe
Madam Chairwoman, Mr. Ranking Member and Members of the Committee,
I appreciate the opportunity to address you today on the need for
legislation I originally authored back in 1997--the bipartisan Equity
In Prescription Contraceptive Coverage act--or EPICC--which currently
has 42 cosponsors. I have the good fortune of being joined on this
panel by Senator Reid who has been a partner with me in this effort,
and I would like to thank him for his ongoing leadership on this issue.
We both agree this is common sense public policy whose time has long
since come.
Madam Chairwoman, there should be no mistake--this issue boils down
the principles of basic fairness--fairness for half this nation's
population, fairness in how we view and treat a woman's reproductive
health versus every other kind of health care need that can be
addressed with prescription drugs. The facts are not in dispute--the
lack of equitable coverage of prescription contraceptives has a very
real impact on the lives of America's women and, therefore, our society
as a whole. This is not overstatement, Madam Chairwoman and members of
the committee. This is reality.
It's been four long years since I first introduced EPICC, and
according to the Alan Guttmacher Institute, in each of those four years
women have spent over $350 per year on prescription oral
contraceptives--for a total of over $1,500. Why? Because many insurance
companies that already cover other prescription drugs do not cover
prescription contraceptives. How can we continue to deny this
fundamental coverage for prescription drugs that are a key component in
women's reproductive health?
All we are saying is that if an employer provides insurance
coverage for all other prescription drugs, they must also provide
coverage for FDA approved prescription contraceptives--it's that
simple, it's that fair, and it builds on existing law and
jurisprudence.
As recently as June, the U.S. District Court for the Western
District of Washington ruled in Erickson v. Bartell Drug Company that
an employer's failure to cover prescription contraceptives in its
otherwise comprehensive prescription drug
plan constitutes gender discrimination, in violation of Title VII
of the Civil Rights Act of 1964. 1 couldn't be more pleased that the
plaintiff, Jennifer Erickson, is here today to share her story with the
Committee--her case was the first of its kind, setting a legal
precedent as well as bolstering the case for our legislation.
In turn, the foundation for the District Court decision was a
ruling by the Equal Employment Opportunities Commission--or EEOC--last
December that an employer's decision to exclude coverage of
contraceptives in a health plan that covered other prescription drugs,
devices and preventive health care services violated Title VII of the
Civil Rights Act regarding gender discrimination.
Together, these two decisions form a ``one-two'' punch in favor of
the approach we advocate today--an approach that's already been
endorsed by a total of 16 states including my home state of Maine--that
have passed similar laws since 1998. Today, another twenty states have
contraceptive coverage legislation pending. That's a start, but it's
not enough. Not only are these laws limited to state regulated plans,
but this piecemeal approach to fairness leaves many American women at
the mercy of geography when it comes to the coverage they deserve.
But fairness is not the only issue. We believe that EPICC not only
makes sense in terms of the cost of contraceptives for women, but also
as a means bridging, at least in some small way, the pro-choice pro-
life chasm by helping prevent unintended pregnancies and thereby also
prevent abortions. The fact of the matter is, we know that there are
three million unintended pregnancies every year in the United States.
We also know that almost half of those pregnancies result from just the
three million women who do not contraceptives--while 39 million
contraceptive users account for the other 53 percent of unintended
pregnancies--most of which resulted from inconsistent or incorrect use.
In other words, when used properly, contraceptives work. They
prevent unintended pregnancies--we know that. Yet, according to the
Kaiser Family Foundation, while 87 percent of covered workers in
conventional health plans receive a prescription drug benefit, only 60
percent have coverage for oral contraceptives -the most popular type--
begging the question, what is wrong with this picture?
It certainly shouldn't be cost. A January 2001 OPM statement on
EPICC-like coverage of federal employees under the FEHBP found no
effect on premiums
whatsoever since implementation in 1998. Let me repeat--no effect.
In fact, some like the Alan Guttmacher Institute--argue that improved
access to and use of contraception nationwide would save insurers and
society money by preventing unintended pregnancies, as insurers
generally pay pregnancy-related medical costs which can range anywhere
from $5,000 to almost $9,000. Improved access to contraception would
eliminate these costs and would reduce the costs to both employers and
insurers.
But even if none of this were true, a 1998 Kaiser Family Foundation
nationwide survey revealed that 73 percent of those questioned still
support insurance coverage of contraception even when told that the
coverage would increase insurance premiums by $1 to $5. In fact, the
survey found that the public is more likely to support insurance
coverage of contraceptives, 75 percent, than Viagra--49 percent. That's
not so surprising when you consider a June survey by NARAL showing that
77 percent of Americans support laws requiring health insurance plans
to cover methods of contraception such a birth control pills . . . and
whopping 87 percent of Americans support access to birth control.
Madam Chairwoman, the question before is now is, if EPICC-style
coverage is good enough for nine million federal employees and their
dependents . . . if it's good enough for every Member of Congress and
every Senator--why isn't it good enough for the American people?
Now, I know some will raise the issue of a ``conscience clause'',
and I agree that this is a legitimate concern--one we have worked out
before, and I believe can work out again. When the Senate agreed to
ensure contraceptive coverage for federal employees, we addressed the
concerns of our colleagues who felt that there needed to be a
``conscience clause'' by amending EPICC to allow religious plans to opt
out of this coverage if their beliefs and tenets are not consistent
with this coverage. As we look to expand EPICC beyond the FEHB plans,
we are willing to work again with those who support the inclusion of a
conscience clause in EPICC. The basic fairness of EPICC is simply too
important to do otherwise.
Mr. Chairwoman, women should have control over their reproductive
health. It is the best interests of their overall health, their
children and their future children's health--and when we have fewer
unintended pregnancies, we will have a reduced
need for abortions. We need to finally fix this inequity in
prescription drug coverage and make certain that all American women
have access to this most basic health need. Again, I thank the
Committee for this hearing and I look forward to working with you to
advance this vital issue.
Prepared Statement of Senator Reid
Thank you for inviting me to testify about insurance coverage for
prescription contraceptives.
I have said time and time again that if men suffered from the same
illnesses as women, the medical research community would be much closer
to eliminating diseases that strike women.
The issue before us today is similar. If men had to pay for
contraceptives, I believe the insurance industry would cover them. It
was hardly surprising that less than two months after Viagra went on
the market, it was covered by many insurance plans. Birth control
pills, which have been on the market since 1960, are covered by only
thirty-three percent of indemnity plans.
The health care industry has done a poor job of responding to
women's health needs. According to a study done by the Alan Guttmacher
Institute, 49 percent of all large-group health care plans do not
routinely cover any contraceptive method at all, and only 15 percent
cover all five of the most common contraceptive methods.
Ironically, most insurance companies routinely cover more expensive
services, including abortions, sterilizations and tubal ligations.
Apparently, insurers do not know what women--and their doctors--
have long known: contraceptives are a crucial part of women's health
care. By helping women plan and space their pregnancies, contraceptive
use fosters healthy pregnancy and healthy births by reducing the
incidence of maternal complications, low birth weight and infant
mortality.
Sadly, financial constraints force many women to forgo birth
control all together, leading to 3.6 million unintended pregnancies
every year. Almost half of those end in abortion. If we are committed
to reducing the number of abortions in this country, we need to
eliminate the barriers to effective and affordable birth control.
That is why the legislation Senator Snowe (R-ME) and I have
sponsored--the Equity in Prescription Insurance and Contraceptive
Coverage (EPICC) bill--is so important. In short, our bill would
require health plans that provide coverage of prescription drugs to
include the same level of coverage for FDA-approved prescription
contraceptives. Our bill does not ask for special treatment of
contraceptives--only equitable treatment within the context of an
existing prescription drug benefit. EPICC will increase fairness,
promote women's health, and reduce unintended pregnancies.
Since Senator Snowe and I first introduced this legislation in
1997, we have made some progress that is worth noting.
In 1998, Senator Snowe and I, along with Congresswoman Lowey (D-
NY), fought to pass a provision that requires health plans
participating in the Federal Employees Health Benefits Program--the
largest employer-sponsored health plan in the world--to cover FDA
approved prescription contraceptives. The Office of Personnel
Management, which administers the program, reported in January that
this benefit did not raise premiums ``since there was no cost increase
due to contraceptive coverage.'' In spite of this, President Bush
proposed eliminating this benefit in his budget.
Just this past June, US District Judge Robert Lasnik handed down a
landmark decision when he ruled that a Seattle company's policy of
excluding prescription contraception from employee health benefits
violated Title VII of the 1964 Civil Rights Act. The Judge ordered the
company to cover all available methods of prescription contraception in
its employee health plan.
I am pleased that the plaintiff in this case, Jennifer Erickson, is
here to share her story with us today. Ms. Erickson is the first woman
in the nation to initiate sex discrimination charges against her
employer based on the company's policy of excluding prescription
contraception from employee health benefits.
Jennifer Erickson's case builds on momentum from a separate ruling
this past December by the Equal Employment Opportunity Commission
(EEOC). In that case, the EEOC also ruled that denial of coverage for
female contraceptives, if an employer offers other preventive medicines
or services, is sex discrimination under the Civil Rights Act of 1964.
In spite of these important advances, women will not have the
contraceptive insurance coverage they deserve until Congress passes our
EPICC legislation.
An estimated 16 million Americans obtain health insurance from
private insurance other than employer-provided plans. Only the
enactment of EPICC will ensure that contraceptive coverage is offered
by insurance providers.
Women who receive their health care through work should not have to
take their employers to court. We want to make family planning more
accessible. We do not want an explosion in lawsuits.
Equity in prescription contraception coverage is long overdue. Our
bill has 42 cosponsors from both sides of the aisle and from both sides
of the abortion debate. Senator Snowe and I are committed to moving
this legislation. Promoting equity in health insurance coverage for
American women while working to prevent unintended pregnancies and
improve women's health care is the right thing to do.
Prepared Statement of Jennifer Erickson
Madame Chairwoman and Members of the Committee, thank you for
allowing me to testify this afternoon. My name is Jennifer Erickson,
and I am the class representative for the Erickson v. Bartell Drug Co.
case. I am pleased to have been invited to testify in support of the
Equity in Prescription Insurance and Contraceptive Coverage Act.
I consider myself in many ways a typical American woman. My husband
Scott and I have been married for two years. We both have full time
jobs in the Seattle area and are working hard to save money. We
recently bought our first house and we spent a lot of time this summer
painting and fixing it up.
My husband and I are both looking forward to starting a family.
However, we want to be adequately prepared for the financial and
emotional challenges of parenting. Someday when we feel ready, Scott
and I would like to have one or two children.
But we know we could not cope with having twelve to fifteen
children, which is the average number of children women would have
during their lives without access to contraception. So I, like millions
of other women, need and use safe, effective prescription
contraception.
Like many Americans, I get my health insurance through my employer.
I am a pharmacist for the Bartell Drug Company, which is a retail
pharmacy chain in the Seattle area. About two years ago, shortly after
I started working there, I discovered that the company health plan did
not cover contraception. Personally, it was very disappointing for me,
since contraception is my most important, ongoing health need at this
time. For many women, it may be the only prescription she needs.
But it was also troubling to me professionally, as a health care
provider. As a pharmacist who serves patients everyday, I see on a
daily basis that contraceptives are central to women's health.
Contraception is one of the most common prescriptions I fill for
women. I am often the person who has the difficult job of telling a
woman that her insurance plan will not cover contraceptives. It is an
unenviable and frustrating position to be in, because the woman is
often upset and disappointed, and I am unable to give her an acceptable
explanation. Why? Because there is no acceptable explanation for this
shortsighted policy. All I could say was: ``I don't know why it's not
covered. My pills aren't covered either and it doesn't make any sense
to me.''
Oral contraceptives cost approximately $30.00 per month. I know
that I am very fortunate--I have a secure job and a good income. But
for many women it is a real financial struggle to pay this cost every
month, year in and year out. My perspective from behind the pharmacy
counter gives me a clear picture of the burden this policy places on
women, especially the low-income women who are the least equipped to
deal with an unplanned pregnancy. I have seen women leave the pharmacy
empty-handed because they cannot afford to pay the full cost of their
birth control pills, and it breaks my heart.
I finally got tired of telling women ``no this is one prescription
your insurance won't cover.'' So I took the bold step of bringing a
lawsuit against my employer to challenge its unfair policy. I did it
not just for me, but for the other women who work at my company who are
not so fortunate. I thank Planned Parenthood for their outstanding
legal counsel on my case.
I am proud that the victory in my case will help the women in my
company. The court ordered Bartell to cover all available forms of
prescription contraception and all related medical services in our
health plan, and I am very pleased that the company recently changed
its policy to comply with the court's order.
Despite our victory in federal court, I know that my case is not
enough to help all of the American women who need this essential health
care. At this point, my case is directly binding only on Bartell.
Nearly every day one of my customers thanks me for coming forward and
congratulates me on winning the case; but many of the women I serve at
my pharmacy counter still do not have insurance coverage for the
contraception need. I know that some companies are still choosing to
ignore the recent legal developments. Planned Parenthood has created a
website with tools to help women whose employers do not cover
contraception.
But I also know that Title VII, the anti discrimination law that my
case is based on, doesn't cover all women. And, even more important,
women should not have to rile federal court lawsuits to get their basic
health care needs covered.
So today I am speaking for millions of American women who want to
time their pregnancies and welcome their children into the world when
they are ready. On behalf of the women of this Nation, I urge you to
enact this comprehensive legislation because every woman, no matter
what state she lives in or where she works, should have fair access to
the method of contraception she needs. Thank you.
Prepared Statement of Anita L. Nelson, M.D.
Chairwoman Mikulski, Members of the Committee, I am Anita L.
Nelson, MD, testifying on behalf of The American College of
Obstetricians and Gynecologists (ACOG) an organization representing
over 41,000 physicians dedicated to improving women's health care. I am
pleased to testify, in support of S. 104, the Equity in Prescription
Insurance and Contraceptive Coverage (EPICC) Act introduced by Senators
Harry Reid (D-NV) and Olympia Snowe (R-ME).
I am a Professor in the Department of Obstetrics and Gynecology at
the University of California in Los Angeles. Currently, I serve as
Medical Director of the Women's Health Care Clinic and Women's Health
Care Nurse Practitioner Program at Harbor-UCLA Medical Center in
Torrance, California. Also, I am the Program Director of Women's Health
Care Teams for the Coastal County Health Centers and the Medical
Director for the Research Division of the California Family Health
Council in Los Angeles.
While most (90%) health plans cover prescription drugs and devices,
many do not cover prescription contraceptives. S. 104 seeks to provide
coverage equity for prescription contraceptives and related medical
services. Under this legislation, plans already covering prescription
drugs and devices would be required to cover FDA approved prescription
contraceptive drugs and devices. Also, plans that cover outpatient
medical services would be required to include outpatient contraceptive
services in that coverage. FDA approved contraceptives include birth
control pills, intrauterine devices (IUDs), injections, implants,
diaphragms, and the cervical caps.
Inadequate health insurance coverage of prescription birth control
remains a glaring medical problem for American women. Contraception is
a basic health care need. As women's health care physicians, ACOG knows
that access to contraception is critical to achieving healthy families.
While some non-prescription forms of contraception play an important
role in reducing the risk of sexually transmitted diseases (STDs) and
pregnancy prevention, prescription birth control does a significantly
superior job of pregnancy prevention and should be readily available to
American women. Prescription contraception is also dramatically more
effective than natural family planning methods, and allows couples more
spontaneity in their lives.
In a 1999 article, the Centers for Disease Control and Prevention
(CDC) counted family planning among the ``Ten Great Public Health
Achievements in the 20th Century.'' They reviewed the history of family
planning during the past century and discussed the positive impact of
contraception on American families. Access to contraception has
contributed immensely to the better health of women and children.
However, the CDC noted that providing access to the full array of
reproductive-health services remains a challenge.
The Equity in Prescription Insurance and Contraceptive Coverage Act
would remedy a longstanding inequity in insurance coverage and help
improve access to basic health care for millions of American women.
EPICC would also guarantee women access to contraceptives that are
appropriate to their medical and family history, age, health status,
fertility desires, beliefs, and economic circumstances, all of which
can change for an individual over time. Almost half (49%) of fee for
service plans provide no coverage of any of the five most common
prescription contraceptives. While health maintenance organizations
(HMOs) have a better record, only 39% routinely cover all five of the
most common methods.
I have had patients who had to save up for months to pay for their
Norplant removal because their insurance companies claimed they didn't
pay for its insertion, so they would not pay for its removal. Perfect
candidates for JUDs were unable to pay the upfront costs and settled
for significantly less effective methods, such as condoms. If a woman
cannot afford an IUD, she certainly cannot afford a pregnancy!
Over the last 16 years, I've helped thousands of women choose the
birth control method that is light for them, and I can tell you that
men and women really do need an extensive menu of options for
contraception to meet their particular needs. Lack of appropriate
contraceptive choices is one of the greatest barriers to effective
contraceptive use.
Fortunately, there are several distinctly different types of FDA-
approved contraceptive methods and newer methods on the horizon, each
designed to suit specific aspects of women's health needs. Women must
not be limited from choosing the best method because of insurers'
arbitrary coverage decisions.
Biologically, most women can become pregnant for nearly forty years
of their lives. Without contraception, the average woman could become
pregnant more than twelve times, a prospect that is unacceptable to
most women and would place a woman's and her children's health at
unnecessary risk. Women cannot simply opt out of the need to control
their fertility for three or more decades. Sexual expression is
obviously an important part of the human experience, or there would not
be such interest in Viagra. Access to contraception provides women the
opportunity to choose the number as well as the timing of their
pregnancies, and to protect their health.
I can assure you that we will be most successful in reducing
unintended pregnancy when women can obtain the particular contraceptive
that best meets their needs and when they have full access to
contraceptive counseling that teaches them how to use their method
correctly and consistently.
Allow me to briefly discuss the major public health reasons for
ensuring that women have access to contraception.
Contraception prevents unintended pregnancies and abortions. Of all
industrialized nations, the United States has the highest rate of
unintended pregnancies. Every year, approximately fifty percent of all
pregnancies in the United States are unintended and 50% of these
pregnancies are terminated.
The consequences of unintended pregnancy are serious and impose
tremendous burdens on women and their families. Women who did not
intend to become pregnant are more likely to delay seeking early
prenatal care and more likely to expose the fetus to poor nutrition and
harmful substances. Pregnancy planning and preconceptual preparation
are key to optimal pregnancy outcomes. Children from unwanted
pregnancies are at greater
risk of poor birth outcomes (e.g. congenital defects, low birth
weight, prematurity), abuse, and of not receiving sufficient resources
for healthy development. The parents may suffer greater economic
hardship.
Contraceptive coverage would place birth control within the
financial reach of more American women. An Institute of Medicine (IOM)
Committee Report on Unintended Pregnancy in 1995 concluded that one of
the reasons for the high rates of unintended pregnancy in the United
States was the failure of private health insurance to cover
contraceptives and recommended increasing the number of health
insurance policies that cover contraceptive services and supplies. The
IOM report also highlighted the need for appropriate contraceptive
counseling, in conjunction with contraceptive use in order to reduce
the number of unintended pregnancies.
Contraception saves and improves babies' lives. Effective family
planning has also been positively correlated with a reduction in infant
mortality. The National Commission to Prevent Infant Mortality
estimated that 10 percent of infant deaths could be prevented if all
pregnancies were planned.
A study published in the February 1999, New England Journal of
Medicine concluded that pregnancy spacing of 18-23 months dramatically
lowered the risks of low birth weight and preterm birth. Contraception
gives women an opportunity to prepare for pregnancy instead of having
it happen accidentally. Women who take folic acid before they conceive
reduce the risk of neural tube defects in their babies by 50%. Diabetic
women who change their medications before they become pregnant decrease
their baby's risk of major congenital defects from 9% to 1%.
Contraception allows women with serious medical conditions to
control their fertility. Pregnancy can be life threatening for women
with serious medical conditions such as heart disease, diabetes, lupus,
and high blood pressure. For these women, contraception can be life
saving. It can help them prevent pregnancy altogether, or it can help
these women postpone pregnancy until they are healthy enough to support
a pregnancy.
Contraception improves maternal health. Family planning is critical
to improved maternal health by allowing women to space the number and
timing of their pregnancies. Studies also show that women who conceive
within six months following childbirth increase the risk of pregnancy
complications. According to the November 2000 British Medical Journal,
``women who became pregnant less than six months after their previous
pregnancy were 70% more likely to have membranes rupture prematurely
and had a 30% higher risk of other complications.''
Contraception aids in the prevention and treatment of sexually
transmitted diseases (STDs): Access to contraceptive-related health
services increases the likelihood that the estimated 15 million
Americans who contract sexually transmitted infections each year will
be diagnosed and treated. Access to contraceptive-related health
services enables sexually active individuals to receive prevention
counseling and appropriate medical tests from their health care
professional.
Contraception is cost effective. Studies in my own state of
California demonstrated that for every dollar invested in family
planning, over $14 is saved. The more effective birth control methods
are the most cost effective. For example, every copper IUD placed saves
the health care system (and society) over $14,000 within 5 years.
However, due to rapid turnover of insured individuals, each individual
insurance company will not reap those economic benefits until all
companies are required to play by the same rules and cover all
prescription methods.
conclusion
In response to strong public support, 16 states have enacted laws
requiring prescription equity similar to EPICC. In addition, a federal
court in Washington State concluded that an employer's failure to
provide contraceptive coverage ``to the same extent and on the same
terms'' as it provides coverage for other prescription drugs
constitutes illegal sex discrimination under Title VII of the Civil
Rights Act of 1964.
However, even if all the states were to pass laws, and more
employees had the courage to stand up in court for their rights,
federal legislation would still be necessary. As you are aware, there
are many families who are not protected by state provisions because
employers insure them in federally governed (ERISA) plans. And we
should not continue an inequity that forces individuals to sue in
court. The only way to help the millions of woman and families
throughout the country who are covered by such plans is to pass federal
legislation that uniformly applies to all insurers.
As long as insurers continue to exclude contraceptive coverage and
services from their plans, it is clear that the needs of women will not
be addressed adequately. Contraceptive coverage is a basic health need,
just as is coverage for diabetes and high blood pressure treatments.
Federal legislation is critical. ACOG supports S. 104 and urges Members
of the Committee to support this important legislation.
I thank the Chair and this Committee for holding this hearing today
and for allowing me the opportunity to testify. S. 104 is important to
our nation's women and families.
Prepared Statement of Kate Sullivan
introduction
Good afternoon. My name is Kate Sullivan, and I am Director of
Health Care Policy for the U.S. Chamber of Commerce. The Chamber is the
world's largest business federation, representing more than three
million businesses of every size, sector and region. I appreciate the
opportunity to present the views of employers who voluntarily provide
health care benefits to more than 172 million Americans.
overview of testimony
1. Job-based health insurance costs this year increased at their
highest rate in nearly a decade, represent the fifth straight year of
health care inflation and hit small businesses the hardest.
1. Further increasing the cost of health coverage by imposing
mandates jeopardizes the availability and affordability of plans for
both employers and working families, leaving more people uninsured not
only for predictable, comparatively nominal health care goods and
services but also for unexpected, major medical events.
1. The U.S. Chamber of Commerce opposes any and all health plan
mandates regardless of merit because they directly raise the cost of
health plans, limit employers' ability to tailor benefits according to
workforce need and demand, and stifle health plans' efforts to provide
consumers with a variety of choices and the ability to select the
benefits most appropriate for their personal situations.
1. As currently drafted, S. 104 poses quality concerns for health
plans, expands the likelihood of malpractice liability and requires
that health plans favor contraceptive coverage over other benefits.
evolution of health plan design
Nine out of every ten people with private health coverage in the
United States are insured through an employer-sponsored health plan.
For decades, employers have voluntarily provided health benefits that
were designed to meet the health and financial needs of their
workforces and dependents. The availability of employer-provided
coverage helps ensure a healthy and productive workforce and alleviates
the distraction of financial worry for employees. As employees' needs
and wants change, often so do their benefit plans, and as new medical
treatment and innovation become available, health plans adapt to
finance these advances while continuing to meet enrollees' needs.
Employer health plans for many years were typically indemnity or
fee-for-service plans covering treatment for illness or injury but not
routine or preventive care. These plans feature a deductible that
patients meet before the plan begins sharing payment, and the patient
then pays a percentage (not a flat dollar amount) of total charges
above and beyond the deductible. Later, larger employers that could
offer employees a choice of health plans (most small employers don't
have the ability to do so) often gave employees the option of receiving
through an HMO or PPO preventive and routine benefits that the
company's traditional plan did not cover.
By offering enrollees prepaid coverage for preventive services,
managed care alternatives to traditional fee-for-service plans quickly
became popular because of the low cost to participants. These plans
usually cover routine services without requiring the patient to first
satisfy a deductible, and doctor visits and prescriptions are often
covered at no cost or for a nominal, fixed dollar amount. Young,
healthy workers in particular have been attracted to managed care
because their few health care needs each year were often covered for
little or no cost out of their own pockets. However, while these plans
often readily pay for routine costs, they scrutinize unanticipated,
costly claims more closely. Plans--and the employers who pay the bulk
of their cost cannot afford to cover both up-front and back-end health
care costs and still keep premiums and cost-sharing affordable for
participants.
As health plan costs rise and employers are restricted in their
ability to sponsor managed care alternatives because of so-called
``patients' rights'' laws, many employers are turning to--or returning
to--indemnity health plans that ensure coverage for unexpected and
costly health needs, in combination with a tax-favored health care
spending account that make funds available up-front to meet deductible
and coinsurance requirements. These health care spending accounts also
are frequently used to pay for items and services outside the plan's
scope of coverage but that the participant knows will be needed
throughout the year. This evolving trend encourages health care
consumers to plan for the health costs they anticipate and returns
health coverage to the more traditional notion of ``insurance''--that
is, insuring unanticipated health care events that can financially
devastate an uninsured patient.
health plan cost trends
Health plan costs have risen sharply in recent years and are the
direct result of state legislatures' mandates on insured health plans
offered by employers, as well as the impact of HIPAA and other federal
mandates enacted by the U.S. Congress. Health plan costs are also
rising due to greater drug utilization, hospital costs that have been
shifted to employers due to insufficient Medicare and Medicaid
reimbursement, and employers' response to consumer preference and
provider demand for more open, flexible service networks and fewer
coverage limitations.
The 2001 annual survey of employer health benefits released last
week by the Kaiser Family Foundation and the Health Research and
Educational Trust reported that job-based health insurance costs
increased by 11.0 percent from the spring of 2000 to the spring of
2001, the highest increase since 1992 and the fifth straight year of
health care inflation. These rate increases translate to per-employee
health plan costs of $2,650 a year for single coverage ($221 per
month), and $7,053 a year for family coverage ($588 per month). Small
employers were once again the hardest hit, reporting health plan
inflation rates of 14.4 percent (10 to 24 employees) and 16.5 percent
(3 to 9 employees).
Employers have absorbed much of the rising cost because the healthy
economy brought in more revenue to pay these expenses and the tight
labor market made the need for comprehensive, low-cost benefits
packages an imperative in order to attract and retain employees.
Employers assumed greater responsibility for plan premiums from 1993 to
2001 (paying 68 percent of family coverage in 1993 and 73 percent in
2001), but rising costs have increased employees' average monthly
contributions from $124 to $150 over the same period (Kaiser Family
Foundation/Health Research and Education Trust 2001 Annual Survey).
However, the last year has been a wake-up call to both employers
and employees. Health plan costs this year increased at their greatest
rate in nearly ten years, and the anemic economy makes absorbing these
costs far more difficult. When employers can no longer keep up with the
rising cost of their health plans, they increase employee cost-sharing
in the form of bigger monthly premiums, larger co-payments for doctor
visits and prescription drugs, and higher out-of-pocket payments toward
the deductible and coinsurance. Among large employers (200 or more
employees), 75 percent are likely to increase employee costs next year,
and 42 percent of smaller employers expect to do so (Kaiser Family
Foundation/Health Research and Education Trust 2001 Annual Survey).
the link between rising costs and the uninsured
Until this year's economic downturn, employer health coverage had
been steadily expanding as more Americans were working and more small
employers offered health benefits in order to attract and retain
employees. In 1998, 54 percent of small firms (3 to 199 employees)
offered health benefits, rising to 67 percent in 2000 before dropping
this year to 65 percent (Kaiser Family Foundation and Health Research
and Educational Trust, 2001 Annual Survey).
However, even as employer coverage has been expanding in recent
years, the number of employees turning down their employers' offer of
coverage has been steadily increasing. In many cases, the employee is
covered elsewhere (through a spouse, parent a government program), but
26 percent--one out of four--employees who decline coverage are
uninsured. When asked, 20 percent of those turning down the offer of
health coverage state that it was just too costly to participate
(Employee Benefits Research Institute, September 1999).
Furthermore, women already face barriers in accessing affordable
health coverage because of their work and income status. A Commonwealth
Fund study last month reported that younger women are far more likely
to be uninsured than older women. Twenty-three percent of women between
the ages of 19 and 34 are uninsured, compared with 15 percent of women
between the ages of 35 and 44, 14 percent of women ages 45 to 54, and
16 percent of women ages 55 to 64 (Commonwealth Fund Task Force on the
Future of Health Insurance, analysis of March 2000 Current Population
Survey).
Increasing the cost of health coverage by imposing mandates
jeopardizes the availability and affordability of plans for both
employers and employees. So while some women may gain coverage for
their contraceptive needs, other women may lose their coverage entirely
and remain uninsured when they are accidentally injured, require
surgery or experience a major illness.
the pitfalls of ``average'' cost impact estimates
Many who support S. 104 argue that because it will result--we would
say ``may result''--in only a fractional increase in health plan
premiums, that it is penny-wise and pound-foolish for the business
community to oppose this legislation. We urge you to keep in mind that
projected cost increases are only averages, and the impact on any given
employer depends on what the plan already covers and the likelihood of
that particular employer group's members availing themselves of the new
benefit.
Furthermore, cost impact estimates include those employers who
already cover the item or service under consideration; for them, there
is no cost increase so long as their plan already fully complies with
the mandate. However, employers whose plans depart in any way from the
strictures of the mandate, only partially cover the benefit, or do not
cover it at all, will see their health plan costs increase several
times the widely touted ``nominal'' cost of the new mandate.
mandates limit choice, raise costs, disproportionately impact employers
Government mandates handed down by the federal and state
legislatures have forced health plans of all types--indemnity, PPO,
HMO, point-of-service--to look more like one another, diminishing the
ability of plans to compete for customers based on consumers' needs and
preferences. Mandates have also increased health plan costs, and
surveys of employer health plan costs underscore the effect of state
mandates on employers' insured health plans.
Compared to the rate of inflation for self-insured plans under
ERISA, costs for fully insured health plans, which must comply with
state mandates, rose 37.1 percent from 1998-2001, while self-insured
health plan costs rose 24.8 percent over the same period (Kaiser Family
Foundation/Health Research and Educational Trust, 2001 Annual Survey).
Moreover, mandated contraceptive coverage is not the only government
mandate the Senate is considering this year. Last month, this committee
approved a broad expansion of the current mental health parity mandate
that will increase premiums an average of 0.9 percent. At the end of
June, the full Senate passed managed care reform legislation--replete
with numerous mandates--that will increase premiums an average of 4.0
percent.
Pausing barely long enough to catch one's breath, this committee is
now preparing to further increase health plan costs. The total average
impact of these mandates will equal more than half the average 11
percent increase in health plan costs this year without these new
requirements. And again, for a good portion of employers, the impact on
their health plans will certainly exceed those ``nominal'' average
estimates several times over.
Finally, employers have not even begun receiving the bill from
their health plans for the cost of complying with the new ERISA claims
procedure regulations, costs associated with provider and carrier
compliance with medical privacy regulations, and the cost of abiding by
administrative simplification requirements imposed by HIPAA. Clearly,
there is no end in sight to the current rise in health plan costs, and
this is before we begin paying for the rising cost medical services
themselves.
comments specific to s. 104, the ``equity in prescription insurance and
contraceptive coverage act''
Like any and all legislation imposing a mandate on the private
health plans that employers voluntarily offer and finance, the U.S.
Chamber of Commerce opposes S. 104 and its mandate that employers cover
contraceptive coverage. The Chamber opposes mandates because they
directly raise the cost of health plans, limit employers' ability to
tailor benefits according to workforce need and demand, and stifle
health plans' efforts to provide consumers with a variety of choices
and the ability to select the benefits most appropriate for their
personal situations. We make no distinction in our opposition to
mandates on the basis of cost, popularity of the benefit, potential
indirect benefit to the company, widespread coverage already by
employers, or regard for the legislators who support the proposal: The
Chamber is an equal opportunity organization when it comes to just
saying ``No.''
Apart from our stated opposition to any government mandate that
raises the cost of health coverage and results in more uninsured
people, the Chamber has particular concerns with S. 104.
Inequity of Coverage. While purporting to put contraceptive
services and devices on the same footing as other health benefits, S.
104 requires plans to cover prescriptions, outpatient services and
devices at no greater cost than ``any other drug'' or ``any other
outpatient service.'' If a plan covers childhood immunizations at no
cost in order to provide the greatest incentive possible to immunize
children, or provides free mammograms during October as part of a
breast cancer awareness campaign, contraceptive services and
prescriptions would have to be covered on the same basis. In essence,
the bill mandates that contraceptive coverage be covered at the most
generous level of cost sharing for any other service.
Quality Concerns. The bill creates serious quality concerns by
prohibiting a plan from denying coverage or conducting any utilization
review based on quality. A plan could not deny coverage if the
prescribed drug, device or service puts the patient at serious medical
risk because of contraindicated age, weight, behavior or other risk
factors.
Malpractice Liability. The bill increases the threat of malpractice
liability and poor quality by prohibiting a plan from specifying the
type of provider who can prescribe contraception. For example, a plan
could not deny coverage if an optometrist were to prescribe an IUD.
No Conscience Clause. Faith-based employers would be required to
provide coverage for services that conflict with religious teachings
and doctrine. The Congress has long provided such ``conscience
clauses'' protecting against the mandatory provision of services deemed
objectionable to Catholic and other faith-based employers. Managed care
legislation recently passed by both the U.S. Senate and House of
Representatives includes an exclusion clause that would ensure faith-
based health plans are free to act in a manner consistent with their
religious beliefs, and the current contraceptive coverage mandate in
the Federal Employee Health Benefits Program similarly contains such an
exemption.
conclusion
The Chamber understands and appreciates the sponsors good
intentions with this bill, but many a well-intentioned public policy
has had unintended consequences. The Congress is tackling the wrong
issue. One out of six people in this country are uninsured. Not only do
they not have contraceptive coverage, they are uninsured in the event
of childbirth, a trip to the emergency room or a diagnosis of cancer.
Rather than enrich the benefits that some already have, the
Congress needs to rein in its penchant for mandates, halt duplicative
regulation that raise health system costs and act immediately to create
new options for private health coverage and new ways to pay for it.
Women who desire more comprehensive coverage for contraception are in
danger of losing their health benefits altogether because costs are
rising for their companies and themselves, and insurers are withdrawing
from the market leaving consumers with fewer alternatives. The prospect
of being held liable for unlimited damages in both federal and state
court for the actions of health plans they voluntarily sponsor is
causing employers to further rethink the wisdom of taking on such risk.
Bit by bit, mandate on top of regulation on top of more liability,
lawmakers threaten the health and economic security of hard-working
Americans.
Prepared Statement of Marcia D. Greenberger
My name is Marcia Greenberger, and I appreciate your invitation to
testify today. I am Co-President of the National Women's Law Center,
which since 1972 has been at the forefront of virtually every major
effort to secure and defend women's legal rights. I am pleased to have
this opportunity to testify about insurance coverage of contraception
and the importance of the Equity in Prescription Insurance and
Contraceptive Coverage Act (EPICC).
The Center's involvement in pregnancy-related discrimination--which
is at the heart of the issue before the committee today--dates back to
the Center's beginning in 1972 and our participation in the litigation
and subsequent legislative action that led to enactment of the
Pregnancy Discrimination Act in 1978. It now includes the Erickson v.
Bartell Drug Co. contraceptive coverage case, in which the Center is
honored to be serving as part of the legal team representing Jennifer
Erickson and the other women in the plaintiff class. Because the Center
brings to this work a dual perspective as a longstanding advocate both
for women's health and reproductive rights and for equal opportunities
for women in all facets of American life, my testimony will cover the
importance of contraceptive coverage both as a matter of women's health
and as a matter of women's equal rights, and will include some
historical and legal background.
i. contraception is part of basic health care for women
Access to reliable contraception is essential to women's health,
and the failure of insurers to cover it has far-reaching consequences
for the health of women and the health of their children. The court in
Erickson v. Bartell Drug. Co., 141 F.Supp.2d 1266 (W.D.Wash. 2001), got
it exactly right in its June 2001 decision when it said, ``the
exclusion of prescription contraceptives creates a gaping hole in the
coverage offered to female employees, leaving a fundamental and
immediate healthcare need uncovered.''
Pregnancy prevention is central to good health care for women. Most
women have the biological potential for pregnancy for over 30 years of
their lives, and for approximately three-quarters of her reproductive
life, the average woman is trying to postpone or avoid pregnancy. Over
half of pregnancies in the United States are unintended. Access to
contraception is critical to preventing unwanted pregnancies (and thus
also to reducing the number of abortions), and to enabling women to
control the timing and spacing of their pregnancies, which in turn
reduces the incidence of maternal morbidity, low birth weight babies,
and infant mortality.
Despite the importance of contraception to women's health, private
health insurance has failed to provide adequate coverage of
prescription contraceptive drugs and devices and related services.
Almost half of all fee-for-service large-group plans (those covering
over 100 employees) do not cover any form of contraception at all, and
only one-third cover oral contraceptives, the most commonly used form
of reversible contraceptive in the United States. Although managed care
plans typically provide better coverage than traditional fee-for-
service plans, only 39% of HMOs routinely cover the five methods of
reversible contraception. Only 49% of large-group plans and 39% of
small-group plans cover outpatient annual exams--which are essential
for women using prescription contraceptive drugs or devices. Before
Congress mandated contraceptive coverage for federal employees, 81% of
the plans in the Federal Employees Health Benefits Program (FEHBP) did
not cover all five reversible methods of contraception, and 10% of the
plans did not cover any of these methods. The failure of private
insurance plans to cover contraceptives is even more glaring when one
considers that 97% of traditional fee-for-service plans cover other
prescription drugs.
Women who do not have health insurance coverage for contraception,
but who nonetheless wish to avoid pregnancy, are often forced to use a
less expensive, but also less effective, method of contraception. A
woman without insurance coverage also may not be able to afford to use
the contraceptive method that is most appropriate for her medical and
personal circumstances. For example, an IUD or implant may be the most
appropriate form of contraception for some women (for example, where
oral contraceptives are contraindicated for medical reasons), but these
devices have the highest initial cost and therefore can be the hardest
to pay for out-of-pocket.
Moreover, some insurance plans do not cover oral contraceptives
even when they are prescribed for health reasons other than birth
control--for example, for medical conditions like dysmenorrhea and pre-
menstrual syndrome, or to help prevent ovarian cancer. Thus, in
addition to the dangers to women's health presented by the failure of
insurance to cover pregnancy prevention, the exclusion of contraception
from insurance coverage causes other harmful consequences for women's
health.
ii. insurance coverage of contraceptives is a matter of equity for
women
Not only is pregnancy a condition that is unique to women, but the
only forms of prescription contraception available today are
exclusively for women (oral contraceptives, injections like Depo
Provera and Lunelle, implants like Norplant, IUDs, and barrier methods
like the diaphragm and cervical cap). Thus, the exclusion of
prescription contraceptives from health insurance coverage unfairly
disadvantages women by singling out for unfavorable treatment a health
insurance need that only women have. Failure to cover contraception
forces women to bear higher health care costs to avoid pregnancy, and
exposes women to the unique physical, economic and emotional
consequences that can result from unintended pregnancy.
The most immediate economic consequence for women is the out-of-
pocket cost of paying for contraception. American women spend about 68
percent more than men in out-of-pocket health care costs, and much of
this disparity can be attributed to the lack of adequate coverage of
reproductive health services. Such costs make up one-third of all
health care costs for women under private health insurance policies.
Moreover, when effective contraception is not used, it is women who
bear the risk of unwanted pregnancy. When unintended pregnancy results,
it is women who incur the attendant physical burdens and medical risks
of pregnancy, women who disproportionately bear the health care costs
of pregnancy and childbirth, and women who often face barriers to
employment and educational opportunities as a result of pregnancy, even
today despite the fact that the law clearly prohibits this form of
discrimination in the workplace and in educational institutions.
In short, forcing women to pay out of pocket to cover their
contraceptive needs is both harmful to their health and manifestly
unfair. It is no wonder that when many insurance plans agreed to
covered Viagra as soon as it received FDA approval--while continuing to
exclude prescription contraception--an outcry ensued.
iii. many employers are obligated to provide contraceptive coverage
under the laws prohibiting sex discrimination in employment
Women's ability to receive the contraceptive insurance coverage
they need has advanced significantly with two recent interpretations of
the federal civil rights laws, one by the Equal Employment Opportunity
Commission and one by a federal court. Both held that it is unlawful
sex discrimination in the workplace under Title VII of the Civil Rights
Act of 1964, and specifically the Pregnancy Discrimination Act of 1978
(PDA) that is incorporated in Title VII, for an employer covered by
Title VII to exclude prescription contraceptive drugs and devices and
related services from a health insurance plan provided to its
employees, when the plan covers other prescription drugs and devices
and preventive care generally.
Title VII prohibits all private employers with at least 15
employees, and public employers as well, from discriminating on the
basis of sex in the terms and conditions of employment, including in
fringe benefits. And Congress made explicit, when enacting the PDA as
an amendment to Title VII, that pregnancy-related discrimination
constitutes illegal discrimination on the basis of sex in all terms and
conditions of employment, including employer-provided insurance. This
legislation explicitly overruled the Supreme Court's decision in
General Electric Co. v. Gilbert, 429 U.S. 125 (1976), which had held
that an otherwise comprehensive short-term disability policy that
excluded pregnancy-related disabilities from coverage did not
discriminate on the basis of sex in violation of Title VII.
Based on Title VII, and specifically the PDA, both the EEOC and the
Erickson federal court have underscored that an employer who singles
out pregnancy-related health care--including contraception--for
disadvantageous treatment in an employee health benefits plan is
committing unlawful sex discrimination. In December 2000, the EEOC
issued a formal statement of Commission policy holding that Title VII
prohibits employers from excluding prescription contraceptive coverage
from an employee health plan that otherwise covers prescription drugs
and devices generally as well as a wide range of other preventive
health care. The Commission reasoned that Title VII's ``prohibition on
discrimination against women based on their ability to become pregnant
. . . necessarily includes a prohibition on discrimination related to a
woman's use of contraceptives.'' According to the EEOC, this means that
employers must cover the expenses of prescription contraceptives and
related medical services to the same extent and on the same terms that
they cover the expenses of other drugs, devices and preventative
services. As the federal agency charged with administering and
enforcing Title VII, the EEOC's interpretation of the law is
authoritative and entitled to substantial deference. And both Attorney
General John Ashcroft and EEOC Chair Cari Dominguez have stated that
they will uphold this ruling.
The EEOC's ruling was followed by the decision in Erickson v.
Bartell Drug Co. in June of this year, in which the U.S. District Court
for the Western District of Washington found that the defendant's
exclusion of prescription contraceptives from its otherwise
comprehensive employee health benefits plan constitutes a violation of
Title VII The court's decision, granting summary judgment to Jennifer
Erickson and the plaintiff class she represents, was the first one ever
to rule definitively on the merits of this issue--although two other
courts have also recently ruled in favor of the plaintiffs in similar
cases, denying the defendants' motions to dismiss and allowing the
cases to proceed. In the Erickson decision, the court carefully
reviewed the legislative history of Title VII and the PDA, relevant
precedents, the EEOC Decision, and each of the arguments presented by
the Defendant. The court concluded:
Bartell's exclusion of prescription contraception from its
prescription plan is inconsistent with the requirements of federal law.
The PDA is not a begrudging recognition of a limited grant of rights to
a strictly defined group of women who happen to be pregnant. Read in
the context of Title VII as a whole, it is a broad acknowledgment of
the intent of Congress to outlaw any and all discrimination against any
and all women in the terms and conditions of their employment,
including the benefits an employer provides to its employees. Male and
female employees have different, sex-based disability and healthcare
needs, and the law is no longer blind to the fact that only women can
get pregnant, bear children, or use prescription contraception.
On this basis, the court ordered Bartell Drug Co., the defendant,
to cover each of the available options for prescription contraception
to the same extent, and on the same terms, that it covers other drugs,
devices, and preventive care for its employees, as well as all
contraception-related outpatient services. Bartell has subsequently
notified its employees that these drugs, devices, and services are now
covered.
As a result of the EEOC and court rulings, all employers covered by
Title VII are now on notice of their legal obligation to include
coverage of prescription contraceptives if they are providing health
insurance to their employees that otherwise covers prescription drugs
and devices and preventive care. We are pleased that some have
responded on their own by promptly adding this coverage to their
employee health plans. Other employers have added contraceptive
coverage after being pressed to do so by their employees. For example,
this past April, after several female faculty and staff members at the
University of Nebraska urged the university administration to add
contraceptive coverage--with legal assistance from the National Women's
Law Center--the university Regents agreed.
To help other employees across the country in their efforts to
secure the contraceptive coverage to which they are entitled, the
Center has published a free pamphlet, Take Action: Get Your
Prescription Contraceptives Covered, A Practical Guide for Employees,
and has launched a new web page on which this pamphlet and other
helpful information are available. We are hopeful that, especially as
employees learn about their rights and press their case with their
employers, more and more employers across the country will add
contraceptive coverage to their employee health benefits, and obviate
the need for more lawsuits like Jennifer Erickson's.
iv. why epicc is needed
Although the Title VII rulings represent significant progress for
the employer-provided plans covered by Title VII, enactment of the
Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC)
is critical to ensuring that all health plans that provide coverage of
prescription drugs include the same level of coverage for FDA-approved
prescription contraceptives, as well as coverage for outpatient
contraceptive services. EPICC does not require special treatment of
contraceptives--only equitable treatment within the context of an
existing prescription drug benefit. Because the vast majority of
insurance plans cover prescription drugs, a large majority of insured
women are expected to benefit from the expanded access to contraceptive
coverage that EPICC will produce.
EPICC will extend protection beyond that provided by Title VII. It
will cover plans not provided by an employer to its employees, such as
non-employment group and individual plans, and those employer plans not
covered by Title VII Millions of women receive their insurance from a
source not covered by Title VII. An estimated 16 million Americans
obtain health insurance from private insurance other than employer-
provided plans. This includes people who are self-employed; those
employed by employers who offer no health insurance; part-time,
temporary, and contract workers; early retirees too young for Medicare;
and unemployed or disabled people not eligible for public insurance.
Women are disproportionately represented in several of these
categories, such as part-time, temporary, and contract workers.
Moreover, not everyone who receives health insurance through an
employer is protected by Title VII, which applies only to employers
with 15 or more employees--this is less than a fifth of all U.S.
employers, and some 14 million workers are employed by entities that
fall beneath this threshold.
We know from the unfortunate experience with maternity coverage
after passage of the PDA that it is critical to guarantee coverage for
women who do not receive their health insurance through their
employers. Before the PDA's enactment, private health insurance often
did not include maternity care--basic prenatal and delivery services--
in their standard policies. Following passage of the PDA, which made
clear that employers covered by Title VII could not single out for
exclusion from an employee health plan the medical expenses related to
pregnancy and childbirth, insurers began to include maternity benefits
in their standard benefit package for employer-sponsored plans because
their customers, the employers, were legally obligated to provide that
benefit. But, because there is no legal mandate to do so, insurers do
not always include maternity benefits in their standard benefits
package for individuals or others not covered through an employer.
There is every reason to believe that insurers will respond in a
similar way to contraceptive coverage, thereby underscoring the
importance of EPICC.
State experience reinforces the wisdom of EPICC s approach. Sixteen
states have passed new laws requiring health plans that cover
prescription drugs to cover prescription contraceptives. Their passage
confirms the growing recognition of the importance of this issue, and
the appropriateness of this approach. But women's access to this basic
benefit should not depend on where they live.
v. contraceptive coverage is cost-effective
As is true for other key forms of preventive health care, coverage
of contraceptives can actually save money. For every dollar spent to
provide publicly funded contraceptive services, an average of $3.00 is
saved just in Medicaid costs for pregnancy-related health care and
medical care for newborns. And, studies by business groups and employer
consultants have concluded that employers can save money by including
contraceptive coverage in their employee health plans, thereby reducing
unintended pregnancies and their associated costs, as well as promoting
maternal and child health. For example, the Washington Business Group
on Health, an organization that represents 160 national and
multinational employers, has estimated that failing to provide
contraceptive coverage could cost an employer at least 15% more than
providing this coverage. Their report concluded, ``For health and
financial reasons, employers concerned with providing both
comprehensive and cost-effective health benefits ought to consider
ensuring that they are covering the full range of contraceptive
options.''
Moreover, any direct premium costs to an employer who adds
contraceptive coverage to its benefits plan are at most extremely
modest, and likely to be nonexistent. The concrete experience of the
Federal Employees Health Benefits Program (FEHBP) is most instructive.
It showed that adding contraceptive coverage to the FEHBP caused no
increase in the federal government's premium costs. When the FEHBP
contraceptive coverage requirement was implemented, the Office of
Personnel Management (OPM), which administers the program, arranged
with the health carriers to adjust the 1999 premiums in 2000 to reflect
any increased insurance costs due to the addition of contraceptive
coverage. However, no such adjustment was necessary, and OPM reported
that ``there was no cost increase due to contraceptive coverage.''
OPM's letter is attached to my testimony. Another study found that on
average, it costs a private employer only an additional $1.43 per month
per employee to add coverage for the full range of FDA-approved
reversible contraceptives.
Of course, even if the cost of contraceptive coverage were
substantial--which, as shown, it most assuredly is not--such costs
could not justify shortchanging women or sacrificing their health. It
would be unthinkable to exclude insurance coverage for heart disease or
many other conditions that can lead to expensive health care because of
cost. Cost is never recognized as a defense to discrimination, as both
the EEOC and the court in Erickson noted, and it should not be used as
a reason--let alone an unsupported assertion, as would be the case
here--to penalize women.
vi. there is widespread public support for contraceptive coverage
Not surprisingly, there is broad public support for laws requiring
contraceptive coverage. One recent poll conducted this June found that
77% of Americans support laws requiring health insurance plans to cover
prescription contraception. This support has been steady. A 1998 Kaiser
Family Foundation poll found that 75% of Americans believe
contraception should be covered by insurers even if such coverage added
to the cost. This broad public support is also reflected in the growing
number of states that have enacted legislation requiring all health
insurance plans to cover prescription contraceptives, and the fact that
in many additional states such legislation is now pending. And, of
course, the federal government has also recognized the importance of
this benefit by providing it to federal employees.
conclusion
Unless Congress acts, women will not have the contraceptive
insurance coverage that they need and deserve. EPICC would provide that
coverage, and represents a major step forward for women's health. Thank
you.
Statement of Wendy Wright
Equity in Prescription Insurance and Contraceptive Coverage Act of
2001 (EPICC) would force private insurers that provide a prescription
drug plan to include coverage of all FDA-approved contraceptives. This
bill, establishing the first-ever nationally mandated benefit in health
insurance, is unnecessary, both from consumer and societal aspects. It
is a precarious step that would result in some employees being denied
full, or other, needed prescription benefits due to increased costs. It
would place employers in the untenable position of either not offering
any prescription plans, or violating their and their employees'
consciences. Adding cost, not value, to health insurance to cover drugs
and devices, which do not address a disease or illness, is a
prescription for harming the poorest of employees.
Extensive mandates in the states is one of the factors contributing
to excessive insurance costs and the inability to obtain insurance.
Mandated benefits tend, in general, to inflate the cost of health
insurance by forcing everyone to purchase that which only a minority
wants. As the first nationally mandated benefit, EPICC would provoke a
demand for further mandates as each health-care interest group pushes
to have its particular benefit required. It would be a grave mistake to
begin at the national level the same process experimented upon and
proven harmful at the state level.
Contraceptives are one of the most heavily subsidized services in
the entire health care field with, literally, billions of dollars
annually appropriated by federal, state and local government agencies.
All poor people and many non-poor have access to free or reduced
contraceptive services. Therefore, the dependence on health insurance
to provide this benefit is far less than with most other health
benefits.
Beyond government-provided contraceptives, numerous health plans
cover various forms of contraceptives, which means employees already
have a strong probability of obtaining such coverage in their health
plan.
Prescription contraceptives do not attend to any of the many kinds
of diseases and illnesses that every person is at risk of contracting,
and is of only potential interest to a minority of the workforce. Such
factors as age, marital status, surgical sterilization, moral
conviction, or personal preference for condoms eliminate two-thirds to
three-fourths of the workforce from the universe of potential users of
prescription methods of contraception.
EPICC requires each plan to cover five different varieties of
prescription contraceptive, even though consumers would not use more
than one. The annual cost per patient of these benefits is estimated at
approximately $300 to $400. If approximately one-fourth to one-third of
the workforce takes advantage of this benefit, then the increase in
premiums for all families will be in the order of magnitude of roughly
$ 100; or to put it another way, employees who are not potential users
of prescription contraceptives and their families will be contributing
about $ 100 a year to purchase contraceptives for the minority of their
colleagues who choose to take advantage of this benefit.
Now, it could be argued that the very essence of insurance is
pooled risk, and this is just another instance of that principle. After
all, the employees who do not contract cancer pay through their
insurance premiums for the very costly care of those who do.
That principle does not really apply to this situation, however,
because there is not really a shared risk As noted above, there are
significant segments of the workforce, altogether totaling a solid
majority, who are not and never will be among the future users of
prescription contraceptives. Far from representing a shared risk/shared
cost pool that follows the classic model of insurance, this scheme is
an assessment imposed on one discrete group of workers to subsidize a
preference of another group of workers.
Preference is not an ill-chosen word in this context because the
use of prescription contraceptives is a matter of discretionary
personal preference rather than of medical necessity.
This benefit is purely non-therapeutic, and hence discretionary.
Contraception is not necessary as a therapy for any disease or
disability, which is the rationale for some insurers in distinguishing
between contraceptives and other prescription drugs or devices.
Prescription contraception might best be described as preventive
medicine, an option that might make health plans more attractive to
many consumers and might even reduce overall health care costs in the
long ran. Such coverage is analogous in this respect to coverage of
vitamin supplements. Like contraceptives, vitamin supplements are not
intended to cure any undesired conditions, but to prevent them. Like
contraceptives, their use is discretionary. By contrast, however,
vitamin supplements are not subsidized by government agencies; are not
widely available in health insurance plans; and theoretically might be
desired by everyone, not just a minority of the population, if they
were not costly.
It appears, then, that an even stronger case can be made for
mandating coverage of vitamin supplements than of prescription
contraceptives. But the same can be said for most health care services,
especially for those that are therapeutically necessary.
This is not an argument for excluding insurance coverage of
prescription contraception, but rather an argument against mandating
such coverage. Ideally, there should be no mandated benefits at all.
Benefits should be negotiated to suit the preferences of the insured,
and in many instances those preferences might include coverage of
prescription contraceptives.
But if the government is going to intrude into that negotiation and
impose mandates, then the rational basis for determining which benefits
shall be required in each and every insurance plan, regardless of the
choices of the particular consumers, then the obvious criteria to apply
would be:
1) How widespread is the potential need for the benefit; 2) How
expensive is the benefit if the consumer had to pay for it out of
pocket; 3) How accessible are alternative sources of the benefit; and
4) How urgent for the health and safety of the beneficiaries is the
benefit.
On each one of these criteria, prescription contraceptives rank
very low. Indeed, it is difficult even to imagine a rational criterion
under which mandating coverage of prescription contraceptives would be
a high priority. And yet the legislation before us proposes to make
this the one and only nationally mandated benefit in health insurance.
Mandated benefits in the states have forced consumers to pay for
benefits that may well be unwanted and unused, simply adding cost
rather than value to health insurance plans. The right way to add value
is to increase consumer choice. The more closely the health insurance
approaches the ideal of an individual consumer choosing among a
multiplicity of options, the more cost-efficient and consumer sensitive
the system will be. Those consumers for whom contraceptive coverage is
important can make that a key point in their purchasing decision. Those
for whom it has little or no priority can disregard it as a factor. And
those who, for reasons of moral conviction, consider it important not
to pay for such a benefit in their health insurance still have the
freedom to target their health care dollars in a manner compatible with
their consciences--a freedom, by the way, that the legislation under
consideration here would snuff out.
The only reason any workers are not getting the benefits they want
in their health insurance is that this market model does not prevail.
Instead of consumer choice, most workers in the private sector are
saddled with an inefficient employers' choice system, and in many
states a lengthy list of mandated benefits--many of which are utterly
useless to large numbers of workers--are added to the mix, simply
running up the cost.
The Federal Employee Health Benefit Program--at least until the
first mandated benefit was imposed in 1998--offered an excellent
working model of the kind of insurance plan all Americans should have.
Each federal employee was able to choose among a range of plans that
differed in benefit packages and costs. The only real weakness in the
system was that the various plans were still subject to whatever
mandates the states imposed on them, and those state mandates were not
driven by consumer demand, but by the effectiveness of special interest
lobbying. With the legislation before us today we are seeing the
beginning of that same disgraceful con game of using the power of
government to force people to buy something they neither want nor need.
If workers want insurance coverage for contraception, they should
be able to get it. There is a very easy solution to the difficulty that
some workers have experienced in obtaining contraceptive coverage:
simply assure them the same kinds of consumer choice federal employees
have enjoyed for years. By contrast, the solution proposed in this
legislation--to force every worker in America to purchase such coverage
whether they want it or not--is wasteful, illiberal, and establishes a
terrible precedent that will be exploited by every special interest in
the health care field.
Statement of Elizabeth A. Cavendish
NARAL appreciates this opportunity to urge the Senate Committee on
Health, Education, Labor, and Pensions to ensure contraceptive equity
in insurance plans by enacting S. 104, the Equity in Prescription
Insurance and Contraceptive Coverage Act. NARAL's mission is to protect
a woman's right to make personal decisions about the full range of
reproductive choices; to make abortion less necessary--not more
difficult and dangerous. In support of this mission, NARAL and its 27
state affiliates have made ensuring contraceptive coverage for women a
top priority.
This bill offers the Senate a prime opportunity to promote women's
health, to strike a blow for equity, to advance popular legislation,
and, most importantly, to give women real choices over their
reproductive lives, so that we may reduce unintended pregnancies.
Public opinion polls report that Americans want Congress to enact
legislation that will make genuine improvements in their lives; this
legislation offers you just such an opportunity. Every month, when a
woman who previously paid for birth control pills out of pocket simply
pays her usual co-payment, she will be grateful to you. Voters who
could not afford the most dependable forms of contraception will
appreciate that you recognized this unfairness in insurance coverage.
Contraceptive services are important to women's overall health and
in reducing unintended pregnancy, and should be included as part of
basic health care coverage. Although most health insurers generally
cover prescription drugs, many insurers exclude contraceptives.
Nonprescription contraceptive methods such as condoms and spermicides
are widely available in the U.S., but the most effective methods such
as oral contraceptives and hormonal implants are more costly and
obtainable only through a medical provider. Therefore, some women
covered by private health insurance are likely to use less expensive
contraceptive methods as an alternative to paying high, out-of-pocket
expenses for more effective contraception.
Legislators Recognize the Importance of Insurance Coverage for
Contraception.
Congress recognized the importance of contraceptive equity in 1998
by enacting a provision in the Treasury-Postal Appropriations bill
which guarantees that Federal Employee Health Benefits plans provide
contraceptive coverage to the same extent as coverage for other
prescription drugs and devices. The provision has been maintained each
year since then, and although the Bush administration targeted it for
elimination earlier this year, the full House and the Senate
Appropriations Committee rebuffed that attempt with strong bipartisan
majorities.
In recent years, state legislators have also begun to recognize the
importance of contraceptive coverage. Between 1997 and 2000, state
legislatures introduced a total of 135 such bills. Since 1998, 16
states have enacted comprehensive laws to address the imbalance in
prescription contraceptive coverage in private insurance, and six other
states have laws, policies, or regulations that require some level of
insurance coverage for contraception.
The Equal Employment Opportunity Commission (EEOC) and a Federal Court
Have Ruled That It Is Sex Discrimination for Employers To
Exclude Prescription Contraceptives from Prescription Drug
Plans.
Federal law prohibits sex discrimination in employment, including
discrimination on the basis of ``pregnancy, childbirth, or related
medical conditions.'' In December 2000, the EEOC issued a decision
finding that an employer's failure to provide coverage for prescription
contraceptives, when it covers other preventative drugs and devices,
constitutes unlawful sex discrimination under federal law. The decision
was issued in response to charges filed by two women, both registered
nurses, who were denied equitable coverage for contraception by their
employers. These women alleged--and the Commission agreed--that this
denial of coverage violated Title VII of the Civil Rights Act of 1964,
which bars employers with fifteen or more employees from engaging in
sex discrimination.
Prior to the release of the EEOC decision, a lawsuit was filed in
federal district court asserting that an employer's exclusion of
prescription contraceptives in its employee health plan violates Title
VII. In June 2001, the court, in a case of first impression, echoed the
EEOC decision and concluded that the employer's failure to include
prescription contraceptives in an otherwise comprehensive prescription
drug plan was sex discrimination under federal law. As a result of this
ruling, the court ordered the employer at issue in the case to cover
all prescription contraceptive drugs, devices, and services ``to the
same extent, and on the same terms,'' as it provides coverage for other
prescription drugs, devices, and services.
Enacting S. 104 would ratify these important rulings of the EEOC
and a federal district court, undoubtedly hastening compliance.
Moreover, those cases applied to employers, and this legislation would
bind insurers; accordingly, with its passage, no doubt would remain
about the obligation to treat women's contraceptive needs equitably.
Without Federal Legislation to Require Contraceptive Parity, Insurance
Coverage of Contraceptives is Inadequate
Although state legislatures will continue to take action to ensure
contraceptive coverage for some women, they cannot ensure coverage
throughout the United States. Not all states will require coverage, and
even in states that do, not all women who have private insurance will
be covered. In fact, over half of all U.S. workers are covered under a
health insurance plan regulated by the Employee Retirement Income
Security Act (ERISA) and thus exempt from state regulation. Those
employees must of necessity seek equity under federal law.
Congress cannot just sit back and wait for the market to provide
these services. Unfortunately, all too few plans offer this coverage
and all too few employers demand that women's health needs be covered
in the plans they purchase. Perhaps insurers have decided that women
will just pay out of pocket for the most reliable contraceptives;
perhaps they assume that going to the drugstore for less effective
methods is sufficient. In either case, such thinking is unfair to
women. Congress must redress the market failure whereby insurers fail
to cover this critical aspect of women's health care notwithstanding
the clear demand of women for effective contraceptives.
S. 104 recognizes that the following state of affairs is
unacceptable:
Half of All Traditional Fee-for-Service Insurance Plans Cover No
Reversible Contraceptive Methods at All, and Existing Coverage Is
Lacking.
Forty-nine percent of all typical large group plans (insured
indemnity plans written for 100 or more employees) do not routinely
cover any contraceptive methods, and only 15 percent cover the five
primary reversible contraceptive methods: oral contraception, IUD
insertion, diaphragm fitting, Norplant insertion, and injections
(typically Depo-Provera). Fewer than 40 percent of typical large group
plans routinely cover any one of these five methods. Coverage of all
five methods is critical to women's health, since not all methods are
appropriate for all women. For instance, some women cannot take
hormonally-based contraceptives such as ``the pill,'' and they must
have access to other effective contraception such as diaphragms or the
IUD.
By contrast, sterilization is generally covered by 85 percent of
large group plans, reflecting the tendency for health insurers to cover
surgical services, but not preventive care.
Health Maintenance Organizations (HMOs) Provide Better
Contraceptive Coverage, But Fewer Than Half Cover the Five Most
Commonly Used Methods.
Although 93 percent of HMOs cover some contraceptive methods, only
39 percent routinely cover the five most commonly used methods.
Coverage of contraceptive devices by HMOs varies. Implant
insertions are covered by 59 percent of HMOs and 86 percent of IUD
insertions are covered. Coverage of the devices themselves, however, is
always lower than for the insertion or fitting.
Preferred Provider Organizations (PPOs) and Point-of-Service (POS)
Networks Often Include Some Contraceptive Care, But Contain Significant
Coverage Caps.
Forty-nine percent of PPOs and 19 percent of POS networks do not
routinely cover any reversible contraceptive methods. Only 18 percent
of PPOs and 33 percent of POS networks typically cover the five most
commonly used methods.
PPOs provide minimal coverage of contraceptive devices, with only
23 percent for diaphragm fittings, 25 percent for IUD insertion, and 35
percent coverage for injections. Coverage of contraceptive devices by
POS networks ranges from 46 percent for IUD insertions and diaphragm
fittings to 72 percent for an injection.
Inequities in Insurance Coverage for Prescription Contraception Fall
Heavily Upon Women.
Women of reproductive age spend 68 percent more than men on out-of-
pocket health care costs, with reproductive health care services
accounting for much of the difference.
The most effective forms of prescription contraception are used
only by women. Some of these methods are expensive, at least up front,
often costing hundreds of dollars at the outset of patient use. Thus,
women who pay out-of pocket may opt for less expensive and sometimes
less effective methods, thereby increasing the number of unintended
pregnancies.
Recent Polls Indicate that the Public Supports Contraceptive Equity.
In a 2001 NARAL Foundation nationwide poll, 77% of respondents
supported legislation requiring health insurance companies to cover the
cost of contraception.
A national survey by the Kaiser Family Foundation found that three
quarters of those surveyed favored legislation requiring insurers to
provide coverage for the full range of contraceptives. Support for
insurance coverage of contraception remained high (73 percent) even
when participants were told that the coverage could increase insurance
premiums by $1 to $5. In addition, the survey also found that the
public is more likely to support insurance coverage of contraceptives
(75 percent) than Viagra (49 percent).
Two state polls found similar support. A Connecticut survey found
that 76 percent of those polled support legislation requiring insurance
companies to cover contraceptives. In Texas, a Scripps Howard poll
found that 70 percent of Texans favor requiring insurance companies to
cover prescription contraceptives to the same extent that they cover
other prescription drugs.
Improved Access to and Use of Contraception Would Save Insurers and
Society Money by Preventing Unintended Pregnancies.
Nearly 50 percent of pregnancies are unintended, including 31
percent of pregnancies among married women. Fifty-four percent of
unintended pregnancies end in abortion.
Improved access to and use of contraception would save insurers and
society money by preventing unintended pregnancies. Insurers generally
pay the medical costs of unintended pregnancy, including ectopic
pregnancy ($4994), induced abortion ($416), spontaneous abortion
($1038), and term pregnancy ($8619). Therefore, access to contraception
should actually prevent other, more expensive medical conditions
associated with unintended pregnancy that usually are covered by health
plans.
A recent cost analysis conducted for The Alan Guttmacher Institute
(AGI) indicates that the cost of covering contraception is not
significant. The average total cost (including administrative costs) of
adding coverage for the full range of reversible prescription
contraceptives to health plans that do not currently cover them is
$21.40 per employee per year--$17.12 of employers' cost and $4.28 of
employees' cost. The added cost for employers to provide coverage of
the full range of reversible contraceptives is approximately $1.43 per
employee per month. The cost is significantly lower for health plans
that currently cover at least some contraceptives.
Private Health Insurance Coverage of Contraception Will Improve the
Health of Women and Families.
The lack of adequate private insurance coverage for contraceptive
services makes it more difficult for women to prevent unintended
pregnancy and increases the need for abortion. Nearly 50 percent of all
pregnancies in the U.S. are unintended, and over one-half of unintended
pregnancies result in abortion. The majority of American women and men
believe that the cost of birth control and the inability to obtain it
contribute to the problem of unplanned pregnancy. The U.S. differs from
countries with lower rates of unplanned pregnancy in that highly
effective contraceptive care in the U.S. is neither widely available
nor easily accessible.
In addition to contributing to high rates of unintended pregnancy,
the inaccessibility of more effective contraceptive methods carries
appreciable health risks for women and children. Research shows that
women with unintended pregnancies are less likely to obtain timely or
adequate prenatal care. Moreover, unintended pregnancy increases the
likelihood of low birth weight babies and infant mortality. Estimates
show that effective family planning could reduce the rates of low birth
weight and infant mortality by 12 percent and 10 percent, respectively.
conclusion
Requiring private insurance to cover contraception will increase
access to more effective contraceptive methods and will allow a greater
number of women to plan, space and time pregnancies, thereby reducing
unintended pregnancy and the need for abortion. The impact of
contraceptive coverage will be improved health for American women, men
and families. This legislation is fair, it is sensible, it is
important, it is popular, and it should be enacted promptly.
American Life League,
Stafford, VA 22555,
September 12, 2001.
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC.
Dear Honorable Members of the Committee: American Life League
opposes passage of any legislation, or the funding of any program,
which in any way promotes contraception. This certainly includes the
Equity in Prescription Insurance and Contraceptive Coverage Act of 2001
(S. 104). Such a law would require health insurance premium payers to
pay for contraceptive drugs and devices, many of which act, some of the
time, to prevent the implantation of an already conceived living human
embryo by causing the death of that human embryo after her life has
begun at fertilization/conception but before she implants herself in
her mother's womb. This proposed law, S. 104, thereby requires the
subsidizing of chemicals that kill human persons during their first
days of life. Furthermore, contraception, in and of itself, even if it
consists only of barrier methods that do not cause abortion of
embryonic persons, is a grave moral evil that should not be promoted in
any way by civil authority. S. 104 legitimizes a practice that destroys
God's plan for every sexual act to be open to the procreation of new
life within the context of a loving relationship between two married
people.
The American public is now more acutely aware of the humanity of
the human embryo from the debate over embryonic stem cell research.
Most Americans believe that the federal government should not be
promoting a program that kills human embryos for stem cell research.
Why then does our government promote embryonic killing through
``contraceptive'' programs such as Title X and why is Congress
contemplating a bill (S. 104) that will further promote such killings?
In 1998, Senators Mike Enzi, Tim Hutchinson, John Ashcroft, Sam
Brownback, Dan Coats, Jesse Helms, Robert Smith and Don Nickles signed
a ``dear colleague'' letter opposing a Senate amendment requiring that
federal employees get coverage for contraceptive drugs and devices. In
the letter, they said, ``We are concerned with what appears to be a
loophole in the legislation regarding contraceptives that, upon failing
to prevent fertilization, act de facto as abortifacients.''
On January 18, 2001, during the Senate Judiciary Hearing on the
appointment of John Ashcroft as Attorney General, the President of
Planned Parenthood Federation of America, Gloria Feldt, complained
about this 1998 ``dear colleague'' letter when she testified against
John Ashcroft.
She said, ``The practical, and intended, result of these and
similar efforts would be not only the criminalization of abortion as we
know it, but also of some of the most commonly used and effective
methods of contraception, such as the birth control pill, which
frequently acts to prevent implantation of the fertilized ovum . . .''
You see, even Planned Parenthood admits that many of the most common
forms of contraception prevent implantation by causing the death
[aborting] of the human embryo.
Further, we would also oppose passage of S.104 even if it were to
be amended to include a conscience clause that would allow insurers or
employers an exemption on the basis of religious belief. Proponents of
similar contraceptive coverage acts on the state level have used this
so-called compromise tactic to deflect opposition. But the fact is that
even with a conscience clause for insurers and/or employers, individual
employees can still be stuck paying partial premiums into an employer
plan that did not opt out or qualify for the conscience exemption.
These individual employees will, in many cases, have no other
affordable health insurance option than the one that subsidizes birth
control practices even though these employees find such coverage
morally objectionable. Logically, it makes no sense for any health
insurance plan to pay for birth control prescriptions. Such medications
do not treat illness but rather become the cause of physical ailments
for women and death for countless numbers of embryonic persons. S. 104
must not become law.
Sincerely yours in the Lord of Life,
Julie Brown,
President.
[Whereupon, at 4:43 p.m., the committee was adjourned.]