Background | New York’s Contraceptive Equity Law | Types of Plans Covered | Religious Employer Exemption | Legal Rights

Background

Every year, an estimated 31 million American women are at risk for unintended pregnancy. Although many of these women have health insurance, countless numbers are denied access to affordable contraception by their insurance plans. The issue of contraceptive equity gained momentum when insurance companies in large number decided to cover the male impotence drug Viagra. Women's groups argued that it was illogical and discriminatory to cover treatment of male sexual dysfunction without providing coverage for drugs and devices that would reduce the number of unplanned pregnancies. In response, states began enacting legislation addressing this issue, in the form of "contraceptive equity" laws.

What Is A "Contraceptive Equity" Law?
A contraceptive equity law imposes certain requirements on an insurer or plan that provides insurance for either a group or an individual. Generally, where a plan covers prescription drugs, it must also cover contraceptives and contraceptive devices.

New York’s Contraceptive Equity Law

Does New York have a contraceptive equity law?
Yes. New York Women’s Health and Wellness Act ("WHWA"), which was signed into law on September 17, 2002, contains New York’s contraceptive equity law. Among other things, WHWA amended New York’s insurance law and public health law to mandate coverage of FDA-approved contraceptive drugs and devices (such as oral contraceptives, diaphragms, Norplant, Depo Provera, cervical caps, and IUDS) in employee health plans that cover other prescription drugs.

When did New York’s contraceptive equity law become effective?
New York’s contraceptive equity law became effective on January 1, 2003. With a few exceptions, the law applies to all policies issued, renewed, modified, or altered after the effective date.

Does this New York law address any other health issues in addition to contraceptives?
Yes. In addition to coverage of FDA-approved contraceptive drugs and devices, New York’s WHWA requires coverage of primary and preventative obstetric and gynecologic care, including bone density measurements, mammography screening, and cervical cytology for certain insured women.ⁱ

Types of Plans Covered

What types of plans are covered under the New York contraceptive equity law?
Every group or blanket policy issued in New York that provides coverage for prescription drugs must include coverage for the cost of FDA-approved prescription drugs or devices, or their generic equivalents. ⁱⁱ

Who is subject to New York’s contraceptive equity law?
Generally, employers who offer health insurance policies issued in New York State are subject to the contraceptive equity requirements if their health insurance policy also provides coverage for prescription drugs. However, employers who meet the law’s definition of "religious employer" are exempt from the contraceptive equity requirement (See Religious Employer Exemption)

How do I know whether my health insurance policy was issued in New York?
If an insurance company is authorized by New York State to do business in New York and the plan applies to New York based employees, then it was most likely issued in New York. You can determine whether your health insurance policy was issued in New York by asking your Human Resources representative, your employer, your health insurance company, or by calling the State of New York Insurance Department, Health Bureau.ⁱⁱⁱ

Must my employer have a minimum number of employees in order for the contraceptive equity law to apply?
No. The statute applies regardless of the company’s size.

What if my employer is headquartered out of state?
It depends. As long as your policy was issued in New York, it falls under New York laws and is thus subject to the New York contraceptive equity law. However, if the policy was issued out-of-state, regardless of whether it covers New York based employees, it does not fall under the contraceptive equity law.

What if my employer is a multi- state corporation?
Again, it depends. As long as your policy was issued in New York, it falls under New York laws and is thus subject to the New York contraceptive equity law. However, if the policy was issued out-of-state, regardless of whether it covers New York based employees, it does not fall under the contraceptive equity law.

Does it matter if my health plan is self-insured?
Yes. If the health plan provided by your employer is self-insured, New York’s contraceptive equity law does not apply because a federal law, called the Employee Retirement Income Security Act ("ERISA"), governs all benefits under self-insured employee benefit plans. A health plan is "self-insured" if an employer uses its own funds to pay the health-care claims of its employees rather than purchasing an insurance plan from an outside provider. However, a plan may be administered by an outside provider and still be self-insured. Although a self-insured health plan does not require your employer to comply with New York’s contraceptive equity law, your employer may be required to provide contraceptive coverage under other laws (See Legal Rights).

How do I know whether my health plan is self-insured?
You can determine whether your health insurance policy is self-insured by asking your Human Resources representative, your employer, or your health insurance company.

What if I have a New York based health coverage policy that does not include prescription drugs, and a self-insured pharmacy benefit plan?
The New York contraceptive equity law will not apply because the health plan does not provide prescription coverage and the pharmacy benefit plan is regulated by ERISA.

Religious Employer Exemption

Are religious employers subject to New York’s contraceptive equity law?
Not if they meet that law’s definition of "religious employers." Employers that qualify under the law’s specific definition of a "religious employer" are exempt from New York’s contraceptive coverage requirement. However, religious employers must provide written notice to prospective enrollees listing the contraceptive services that they refuse to cover for religious reasons. ^iv

What is a "religious employer" under New York’s contraceptive equity law?
A religious employer is an entity that meets all of the four following criteria: (1) its purpose is "the inculcation of religious values"; (2) it primarily employs persons "who share [its] religious tenets"; (3) it "serves primarily persons who share [its] religious tenets"; and (4) it is a "nonprofit organization."^v This means that employers who are engaged in purely religious activities are exempt, but those involved in secular activities, such as religiously affiliated hospitals and social services, are not exempt. ^vi

What can I do if my employer falls under this exemption and refuses to cover contraceptives?
Under New York’s contraceptive equity law, you have the right to directly purchase, at your expense, contraceptive coverage through a rider from the insurer or health maintenance organization ("HMO") which issued the group contract. This coverage must be offered at the prevailing small group rate, regardless of whether you are a member of a small group.^vii

What if I need contraceptives for medical reasons other than for birth control?
The religious exemption does not permit the exclusion of coverage for contraceptive drugs prescribed for reasons other than contraceptive purposes. ^viii Thus, even employers that fit within the religious employer definition must offer coverage in this situation.

Legal Rights

What can I do if my employer is covered under this law but refuses to provide coverage?
If contraceptive coverage is not included in your current health plan but other prescription drugs are, first talk to your employer to request the addition of contraceptive coverage. Many employers are simply unaware that contraception is not included under their current prescription drug plan. Be sure to follow up with a formal request in writing. For a sample letter, click here. If your employer does not amend the health insurance policy to include contraceptive drugs and devices, you may file a complaint directly with your health insurance company or with the New York Insurance Department. (See contact information below). You may also seek legal advice, as you may have an actionable claim for your company's failure to comply with the law. (See next question for more information about other possible legal claims).

What can I do if my employer is not covered under this law?
The failure to include coverage of contraceptives in an employee health plan that covers other prescription drugs may be a violation of federal and/or state laws prohibiting sex discrimination in employment, even if it is not a violation of New York’s contraceptive equity law. Title VII of the Civil Rights Act of 1964^ix , for example, has been interpreted to prohibit employers who offer otherwise comprehensive health benefits to their employees from excluding coverage of prescription contraceptives. ^x This law covers all private employers with 15 or more employees, as well as all state and local government employers. If you have questions or would like to file a complaint under Title VII, you should contact the local office of the U.S. Equal Employment Opportunity Commission (EEOC) or seek legal advice.

For instructions on how to contact your employer about the New York State Contraceptive Equity Law, see our Sample Letter. (See also the contact information below.)

For further information, visit www.covermypills.org or you may contact the Center for Reproductive Rights at info@reprorights.org.

For complaints under New York’s WHWA, contact:
Albany
Consumer Services Bureau
New York State Insurance Department
One Commerce Plaza
Albany, New York
(800) 342-3736

New York City
Consumer Services Bureau
New York State Insurance Department
25 Beaver Street
New York, New York 10004
(212) 480-6400

For complaints under Title VII, contact:
U.S. Equal Employment Opportunity Commission
New York District Office
33 Whitehall Street
New York, New York 10004
212-336-3620 or 1-800-669-4000
www.eeoc.gov/

Footnotes
i. N.Y. INS. §3217-c and N.Y. INS. §4306-b
ii. NY. INS. §3221(1)(16)(C)
iii. http://www.ins.state.ny.us (follow link for "how to contact us" as there are several offices in different parts of New York State).
iv. N.Y. INS. §4303(cc)(1)(B).
v. N.Y. INS. §4303(cc)(1)(A). The term "nonprofit organization" is defined in §6033(A)(2)(A)I or III of the IRS Code of 1986, as amended.
vi. For example, the California Supreme Court recently held that Catholic Charities was not a religious organization under a similar definition under California law. See Catholic Charities v. The Superior Court of Sacramento County et al., No. S099822 (Cal. Supreme Ct., March 1, 2004).
vii. N.Y. INS. §4303(cc)(1)(B)(2)(A)
viii. N.Y. INS. §4303(cc)(1)(3)
ix. 42 U.S.C. §2000(e)-2(a)(1)
x. See U.S. Equal Employment Opportunity Commission, Commission Decision on Coverage of Contraception (Dec. 14, 2000) (click here for a copy of the decision); Erickson v. Bartell Drug Co., 141 F.Supp.2d 1266 (W.D. Wash. 2001). (click here for a copy of the decision)