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Advocates move on judicial, legislative fronts following decision
The recent ruling by the Equal Employment Opportunity Commission (EEOC) that employers must provide coverage of prescription contraceptive drugs if their employee health plans include other Rx medications gives fresh impetus to those seeking to establish such coverage for all women.
"An immediate impact is the sense of confirmation many of us feel: The EEOC found that the specific omission of contraceptive prescriptions from prescription health coverage is, as we have argued for years now, sex discrimination," states Karen Raschke, a staff attorney with the state program for the New York City-based Center for Reproductive Law and Policy.
The EEOC decision is a response to charges filed by two unnamed registered nurses who claimed that their employers’ refusal to cover prescription contraceptives violated the Pregnancy Discrimination Act of 1978. The agency’s decision is important because it puts employers on notice of their legal obligation to include contraceptive coverage in their employees’ health plans, and also alerts employees to their legal rights to this coverage, observes Eve Gartner, senior staff attorney with the New York City-based Planned Parenthood Federation of America (PPFA).
Although the EEOC ruling technically applies only to the two women who initially filed the complaint, it could open the door to other lawsuits from women whose employers’ health care plans exclude prescription contraception. The ruling also could prove helpful in existing suits because agency opinions, while not legally binding, tend to carry a lot of weight in court, according to The Wall Street Journal.1
Landmark lawsuit filed
The EEOC ruling may indeed impact the outcome of a pending landmark class action lawsuit filed by Seattle-based Planned Parenthood of Western Washington and PPFA on behalf of Jennifer Erickson, RPh, a pharmacist employed by the Seattle-based Bartell Drug Co. Filed in July 2000 in the U.S. District Court in the Western District of Washington, the case alleges it is sex discrimination for an employer to exclude prescription contraception from an employee health plan that covers other prescription drugs.
A class has been certified in the case, meaning that the court has declared the woman who brought the lawsuit serves as a representative of all the other nonunion employees of the drugstore chain. The class certification expands the number of women who would be affected if the case is won, explains Gartner.
"We’re hopeful that in the case in Seattle the court will defer to the EEOC’s interpretation," states Gartner.
The lawsuit is supported by the Fair Access to Contraception Coalition, which includes Planned Parenthood of Western Washington, PPFA, the Washington, DC-based National Women’s Law Center, and the American Civil Liberties Union of Washington and the Northwest Women’s Law Center, both based in Seattle. The coalition has set up a Web site, www.covermypills.org, with information to guide women in seeking contraceptive coverage from their employers.
Women who are facing resistance in obtaining such coverage are encouraged to contact the coalition, either through the Web site or by dialing a toll-free number, (800) 727-2996, says Gartner.
Coverage is necessary
Opponents to adding contraceptive coverage have argued such measures would raise insurance costs to employers. In 2000, employer-sponsored health benefit cost rose 8.1% for a third straight year of increases, and the increase was more than double the rate of general inflation, according to a survey of more than 3,300 employers released by William M. Mercer, a New York City-based human resource consulting agency.2
Employers are rightfully concerned about the costs of benefit packages, notes Jacqueline Darroch, PhD, vice president for research with the New York City-based Alan Guttmacher Institute. Studies have shown that as the cost of health insurance premiums rises, some employers and employees are priced out of the market; thus, businesses scrutinize requests for expanding coverage carefully, says Darroch. However, such concern usually is focused on high-cost services and care that is judged discretionary rather than directly related to a person’s health, she observes.
Coverage of contraceptives addresses both of those criteria as well as the one of basic fairness recognized in contraceptive equity legislation and the recent EEOC ruling, states Darroch. "The added cost of including contraceptives is very low, and contraceptives are needed, and used, by almost everyone in the United States during their reproductive years," she says.
A 1998 report issued by the Alan Guttmacher Institute showed that the estimated maximum added cost of covering the full range of Food and Drug Administration-approved reversible medical contraceptives in health plans that do not currently cover them is just $21.40 per employee per year.3 Of this figure, $17.12 would be employers’ costs and $4.28 would be employees’ costs. The added cost for employers amounts to just $1.43 per month per employee, which represents an increase of just 0.6% in employers’ costs of providing employees with medical coverage.
"Not only do they [contraceptives] prevent the personal, familial, and social costs of unintended pregnancy and sexually transmitted diseases, but they also prevent health complications from these outcomes," states Darroch. "They are not discretionary, but rather a health necessity for American women and men."
Legislation goes on
The EEOC decision will go a long way toward ensuring that American women have private insurance coverage of contraceptives, states Cynthia Dailard, senior public policy associate with the Alan Guttmacher Institute’s Washington, DC, bureau. However, it does not extend to all privately insured women, but only to those who fall within the scope of Title VII of the Civil Rights Act. According to information provided by the Fair Access to Contraception project, Title VII prohibits sex discrimination by employers with 15 or more employees. It thus does not protect women who do not have health coverage through their (or their spouse’s) employer or women whose employer has fewer than 15 employees.
Thirteen states (California, Connecticut, Dela-ware, Georgia, Hawaii, Iowa, Maine, Maryland, Nevada, New Hampshire, North Carolina, Rhode Island, and Vermont) have enacted laws requiring health plans with prescription drug coverage to include prescriptive contraceptives.
"While the EEOC decision affects employers, the state mandate laws affect insurers, taking two different approaches to the same problem," notes Dailard. "Ultimately, advocates at the state level will need to continue their work to ensure that all privately insured women have comprehensive coverage of contraceptives."
While the EEOC ruling has no immediate legal impact on the movement of state legislation requiring equity for contraceptive prescriptions, it will likely spur such legislation and should decrease the level of opposition to state bills, Raschke observes.
Women’s health care advocates look to the reintroduction of the Equity in Prescription Insurance and Contraceptive Coverage Act (EPICC) in the new congressional session. Originally introduced in 1997 in the House of Representatives and Senate, EPICC would mandate that all private insurance plans cover contraception. The EEOC ruling will play an important aspect in the debate over the bill, forecasts Raschke.
"Insurers, usually a powerful lobbying presence in a state capitol, argue that they are responsive to insurance purchasers and they should adopt a similar strategy as the employers," she notes. "While neither employers nor insurers are likely to simply accede to state [or federal] legislation, the EEOC’s ruling has surely eliminated much of their fervor in opposing it."
1. Dreazen YJ, Lueck S. Excluding women’s contraceptives from health plans ruled violation. New York City: Wall Street Journal; Dec. 15, 2000:B10.
2. Poe SL. Accelerating Health Benefit Cost in 2000 Has Employers Bracing for Double-Digit Rise in 2001. New York City: William M. Mercer; 2000.
3. Darroch JE. Cost to Employer Health Plans of Covering Contraceptives. New York City: Alan Guttmacher Institute; 1998.