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Copyright 2000 The New York Times Company  
The New York Times

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December 15, 2000, Friday, Late Edition - Final

SECTION: Section A; Page 1; Column 4; National Desk

LENGTH: 1189 words

HEADLINE: Agency Finds Many Health Plans Should Cover Contraceptive Costs


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 contraceptives.

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 conditions.

"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 combat impotence.

"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.

Planned 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.

But 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.

"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. Vargyas said.

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 coverage.

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.

Kate Sullivan, 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.

LOAD-DATE: December 15, 2000

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