A new(ish) contraceptive mandate in Illinois

Last updated on: December 5, 2016 at 10:00 am by Jane the Actuary

A new(ish) contraceptive mandate in Illinois 2016-12-05T10:00:59-06:00 Jane the Actuary

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Here’s a piece of legislation which got pretty much zero coverage at the time it was passed: Illinois Public Act 099-0672. OK, the non-zero coverage consists of an article in the Journal-Star from Peoria. Nothing, from memory and from google, in the Chicago Tribune; only the other day, as an offhand reference in a Tribune article about women fearful of losing their “free” (no out of pocket cost) contraceptives, did I read a mention that Illinois women with true insured plans, are not impacted because of this law.

The law (text in full here) is largely a codification of the federal government’s contraceptive mandate, since the latter is a matter of regulation, not legislation, though, as state legislation, it can only apply to health insurance plans, not self-insured health benefits offered by large employers. It does take the requirement further, though: it requires insurance companies to cover every formulation of a contraceptive; that is, an insurer cannot include only some types of birth control pills, but must cover each and every type, though it is permitted, among pills which are “therapeutically equivalent,” to include only one on its formulary. (This seems to be a reaction to insurers limiting benefits to less costly pills and/or negotiating with pharmas to get the best pricing.) What’s more, if I read the text correctly, even in cases where two drugs are deemed equivalent, a patient can still, based on a doctor’s determination of “medical necessity,” demand a specific brand, or, more likely, demand brand-name rather than generic-equivalent pills.

But here are some other quirks:

All contraceptive drugs, devices, and other products approved by the United States Food and Drug Administration [are covered]. This includes all over-the-counter contraceptive drugs, devices, and products approved by the United States Food and Drug Administration, excluding male condoms.

Now, this isn’t particularly new — here’s the list (from Wikipedia, as a handy summary) of what’s in the HHS mandate:

sterilization surgery, surgical sterilization implant, implantable rod, copper intrauterine device, IUDs with progestin (a hormone), shot/injection, oral contraceptives (the pill), with estrogen and progestin, oral contraceptives with progestin only, oral contraceptives, known as extended or continuous use that delay menstruation, the patch, vaginal contraceptive ring, diaphragm, sponge, cervical cap, female condom, spermicide, emergency contraception (Plan B/morning-after pill), and emergency contraception (a different pill called Ella).

But there are a couple interesting differences: the Illinois bill specifically includes “sterilization,” but then excludes “surgical sterilization,” which seems to mean that the only form of sterilization permitted is the “Essure” implant. Why did the lawmakers make this decision? Perhaps they wanted to continue to exclude vasectomies, but wanted the law to be gender-neutral, so they excluded tubal ligations as well. Certainly, since this is a state law regulating insurance, they didn’t need to base this on “preventative care” provisions, which was the original basis for the HHS mandate only covering benefits for women, because only they can claim a health impact due to an unplanned pregnancy – for men, there is no direct health consequence to a partner’s pregnancy. (And recall that the Institute of Medicine claimed that, while being pregnant per se was not a matter of ill health, unintended pregnancies were associated with lack of prenatal care and poor outcomes, so that the use of contraceptives to prevent unintended pregnancy was a true health-preservation measure.) At the state level, and in the context of legislation, not being bound by a law that requires a “preventative” rationale for the mandates, lawmakers were not limited. In fact, the original text did not have a specific exclusion of male condoms, and this was only added later. Maybe this was along the lines of a drafting error — I don’t know. But it is curious.

And here’s another gotta-love-Illinois bit:

If, at any time, the Secretary of the United States Department of Health and Human Services, or its successor agency, promulgates rules or regulations to be published in the Federal Register or publishes a comment in the Federal Register or issues an opinion, guidance, or other action that would require the State, pursuant to any provision of the Patient Protection and Affordable Care Act (Public Law 111–148), including, but not limited to, 42 U.S.C. 18031(d)(3)(B) or any successor provision, to defray the cost of any coverage outlined in this subsection (a), then this subsection (a) is inoperative with respect to all coverage outlined in this subsection (a) other than that authorized under Section 1902 of the Social Security Act, 42 U.S.C. 1396a, and the State shall not assume any obligation for the cost of the coverage set forth in this subsection (a).

Yes, I’m not clear exactly on the scenario that they’re envisioning here, except, of course, that this is saying that, if the state, rather than insurance companies’ customers, are on the hook, then never mind.

And one more interesting bit: at several points, consultations on natural family planning are explicitly listed as being included. But does this mean that an individual wanting to engage the services of an NFP instructor, either for a series of classes, or one-on-one consultations and chart interpretation, could file for reimbursement? And could an NFP user who adapts a device approved by the FDA for other purposes (e.g., the ClearBlue fertility monitor and test sticks), parse the language, and say, “it is a contraceptive device, when used as I do, and it is FDA approved, just not ‘FDA-approved as a contraceptive device'” to seek reimbursement?

So, anyway, just a little tidbit to share with you. Is it the most important thing in the world? No. But there you go.

Image: https://commons.wikimedia.org/wiki/File%3APackage_of_Lutera_Birth_Control_Pills.jpg; By ParentingPatch (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

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