Copyright 2000 The New York Times Company
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December 15, 2000, Friday, Late Edition -
SECTION: Section A; Page 1; Column 4; National
LENGTH: 1189 words
HEADLINE: Agency Finds Many Health Plans Should Cover
Millions of American women who
have been paying for birth-control pills out of their own pockets may have a
claim for insurance coverage, under a ruling by the Equal
Employment Opportunity Commission that employers are discriminating against
women when they offer insurance coverage for preventive health
care like drugs to lower blood pressure, but exclude prescription
Employers "may not discriminate in
their health insurance plan by denying benefits for
prescription contraceptives when they provide benefits for
comparable drugs and devices," the commission said in its ruling on Wednesday.
While the decision applies only to the two women whose complaints the commission
considered, it provides guidance to employers on the commission's views on the
broad reach of the Federal Pregnancy Discrimination Act, which forbids workplace
discrimination against women because of pregnancy, childbirth or related
"It's not binding on the courts, but they will give it
deference," said Ellen Vargyas, a lawyer at the commission. "The hope is that
employers and employees will look at this and want to comply with the law, that
this will be their guide."
The issue of gender equity in prescription
drug coverage became a rallying point for women's rights groups two years ago,
after many of the same employers that exclude women's contraception from their
health plans moved quickly to provide coverage for Viagra, which is used to
"What's so important is that the E.E.O.C. has
reaffirmed that women's health care has to be treated as seriously, and
comprehensively, as men's health care," said Marcia Greenberger, co-president of
the National Women's Law Center in Washington. "It's a matter of fairness and
equity and women's rights."
Last year, the law center and 60 other
advocacy groups petitioned the commission for a policy statement making it clear
that the Pregnancy Discrimination Act and Title VII of the Civil Rights Act
prevent employers from excluding contraceptives from their
health plans if similar health services are covered.
This week's ruling
produced much of what the petition sought -- but only on the two complaints
before the commission, both brought by nurses represented by Planned Parenthood.
Neither the nurses nor their employers are identified.
Parenthood filed a similar suit last summer on behalf of Jennifer Erickson, a
pharmacist at the Bartell Drug Company in Seattle. In that case, which is
pending, Bartell, a family-owned drugstore chain in Washington, said that it had
tried to provide the health benefits its employees consider most valuable, and
believed its health plan was nondiscriminatory. Bartell's also pointed out that
it does not cover Viagra, infertility treatment or cosmetic surgery.
under the commission's decision, those would not be the relevant comparisons.
Rather, the commission would have the courts look to other kinds of preventive
care covered in employers' health plans.
Because the health plans
available to the two nurses covered such preventive health care as vaccinations,
drugs to lower blood pressure or cholesterol, weight-loss drugs, routine
physical exams and lab tests, the decision said, they could not exclude
"Contraception is a means to prevent, and to control the
timing of, the medical condition of pregnancy," the decision said. "In
evaluating whether respondents have provided equal insurance
coverage for prescription contraceptives, therefore, the
Commission looks to respondents' coverage of other prescription drugs and
devices, or other types of services, that are used to prevent the occurrence of
other medical conditions."
The employers defended their exclusion of
contraceptives on the ground that they covered only "abnormal"
health conditions. But the commission rejected that argument, pointing out that,
for example, surgical sterilization is covered by the plan, as is Viagra, even
without a finding of impotence.
The commission also rejected the
employers' cost arguments, since Congress did not make cost a defense to claims
under the Pregnancy Discrimination Act.
"You can buy years and years of
contraceptives for the cost of one unintended pregnancy," Ms.
A 1998 study by the Alan Guttmacher Institute found that
the average cost of adding contraceptive coverage to a
health-care plan would be $1.43 per employee per month. But smaller studies by
insurers, however, have found the costs to be substantially higher.
While indemnity insurance plans generally cover most
prescription drugs, a 1994 study by the Guttmacher Institute found that only
about half of all large group insurance plans cover any of the
five contraceptive methods available to women by prescription:
oral contraceptive pills, the intrauterine device, Depo
Provera, Norplant and the diaphragm. And only about a third cover the pill,
which costs about a dollar a day. Even among health maintenance organizations,
which offer the most comprehensive coverage, only 39 percent cover all five
methods, and 7 percent do not cover the pill.
Until the commission's
finding, it had mostly been left to the legislatures to take up the issue of
gender equity in prescription drug coverage.
Since 1998, several states
have passed laws requiring most insurance plans that pay for
prescription drugs to include contraceptive coverage:
California, Connecticut, Delaware, Georgia, Hawaii, Iowa, Maine, Maryland,
Nevada, New Hampshire, North Carolina, Rhode Island and Vermont. In Congress,
the Equity in Prescription Insurance and Contraceptive Coverage
Act has been stalled since 1997.
Most likely, though, the issue of
contraceptive coverage will continue to be fought out in the
courts. The Catholic Church and many religious groups that oppose birth control
have objected vehemently to any attempt to force contraceptive
Business and insurance groups, too, oppose
the addition of mandated benefits: "Any mandate, no matter how well-intentioned,
raises the costs for everyone and increases the number of people without
insurance," said Richard Coorsh, a spokesman for the Health
Insurance Association of American.
director of health-care policy at the United States Chamber of Commerce, said,
"Every time the government does inject itself into the debate, it makes the
coverage more expensive for the group as a whole and leaves less opportunity for
employers to make discretionary decisions for their work force group."
And even the two cases that prompted the employment commission's ruling
are still in the administrative process. If, for some reason, the employers
refuse to comply, the two nurses could still take their claims to court.
Roger Evans, the litigation director of Planned Parenthood, said
yesterday that the ruling was a major victory for women -- and threatened that
unless Congress passes the contraceptive-equity law, giving all
insured women the right to contraceptive coverage, his group
will continue to file lawsuits.
"This is a wonderful decision, but the
fight's not over yet," he said. http://www.nytimes.com
LOAD-DATE: December 15, 2000