Enrolled Version - Final Version
House Bill 3138 History
OTHER VERSIONS -
H. B. 3138
By Delegates Amores, Trump, Caputo, Brown, Webster,
Palumbo, Schadler, Campbell, Browning, Marshall and Mahan
[Passed April 9, 2005; in effect ninety days from passage]
AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §33-16E-1, §33-16E-2,
§33-16E-3, §33-16E-4, §33-16E-5, §33-16E-6 and §33-16E-7, all
relating to insurance and contraceptive coverage; providing
definitions; specifying application of article; requiring
health insurance plans provide parity for contraceptive drugs,
devices and outpatient services; and providing exemptions and
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §33-16E-1, §33-16E-2,
§33-16E-3, §33-16E-4, §33-16E-5, §33-16E-6 and §33-16E-7
read as follows:
ARTICLE 16E. CONTRACEPTIVE COVERAGE.
§33-16E-1. Findings; short title.
(a)This article may be referred to as the "Prescription
Fairness Act of 2005."
(b)The Legislature hereby finds and declares that:
(1)Contraceptives prevent unintended pregnancy;
(2)Planned pregnancies lead to healthier pregnancies,
children and families; and
(3)Contraceptive coverage provides West Virginians with
critical access to birth control.
(4)Therefore, the Legislature finds that prescription
contraceptives are basic health-care for West Virginia's women and
families and that health insurance plans which include a
prescription drug plan should be required to cover contraceptives.
For the purposes of this article, these definitions are
applicable unless a different meaning clearly appears from the
(1)"Contraceptives" means drugs or devices approved by the
food and drug administration to prevent pregnancy.
(2)"Covered person" means the policyholder, subscriber,
certificate holder, enrollee or other individual who is
participating in, or receiving coverage under a health insurance
plan. For the purposes of this article, covered person does not
include a dependent child.
(3)"Health insurance plan" means benefits consisting of medical care provided directly, through insurance or reimbursement,
or indirectly, including items and services paid for as medical
care, under any hospital or medical expense incurred policy or
certificate; hospital, medical or health service corporation
contract; health maintenance organization contract; fraternal
benefit society contract; plan provided by a multiple-employer
trust or a multiple-employer welfare arrangement; or plan provided
by the West Virginia Public Employees Insurance Agency pursuant to
article sixteen, chapter five of this Code.
(4)"Outpatient contraceptive services" means consultations,
examinations, procedures and medical services, provided on an
outpatient basis and related to the use of prescription
contraceptive drugs and devices to prevent pregnancy issued under
a health insurance plan that provides benefits for prescription
drugs or prescription devices in a prescription drug plan.
(5) "Religious employer" means an entity for which each of the
following is true:
(5) "Religious employer" is an entity whose sincerely held
religious beliefs or sincerely held moral convictions are central
to the employer's operating principles, and the entity is an
organization listed under 26 U.S.C. 501 (c)(3), 26 U.S.C. 3121, or
listed in the Official Catholic Directory published by P. J.
Kennedy and Sons.
(a) The provisions of this article apply to individual and
group health insurance plans issued by accident and sickness
insurers; health maintenance organizations; fraternal benefit
societies; hospital service corporations; the West Virginia Public
Employees Insurance Agency; health-care service corporations;
health service corporations; multiple employee trusts; and multiple
employer welfare arrangements. The provisions of this section
shall not apply to persons eligible for coverage under Title XIX of
the Social Security Act, known as Medicaid (42 U.S.C. § 1396a et
seq.), or for any other similar coverage under state or federal
(b)The provisions of this article do not apply to:
(1)Any policy of liability insurance or contract
supplemental thereto; coverage only for accident or disability
income insurance or any combination thereof; automobile medical
payment insurance; credit-only insurance; coverage for on-site
medical clinics; workers' compensation insurance; or other similar
insurance under which benefits for medical care are secondary or
incidental to other insurance benefits;
(2)If offered separately, a policy providing benefits for
long-term care, nursing home care, home health care, community-
based care or any combination thereof, dental or vision benefits,
or other similar, limited benefits;
(3)If offered as independent, noncoordinated benefits under
separate policies or certificates, specified disease or illness
coverage, hospital indemnity or other fixed indemnity insurance, or
coverage, such as medicare supplement insurance, supplemental to a
group health plan; or
(4)A policy of accident and sickness insurance covering a
period of less than one year.
§33-16E-4. Parity for contraceptive drugs, devices and outpatient
(a)Health insurance plans that provide benefits for
prescription drugs or prescription devices in prescription drug
plans may not exclude or restrict benefits to covered persons for
any prescription contraceptive drug or prescription contraceptive
device approved by the federal Food and Drug Administration. All
customary benefit management rules, including, but not limited to,
drug formularies and coverage criteria may be applied by the health
(b)Health insurance plans that provide benefits for
prescription drugs or prescription devices in a prescription drug
plan and that provide benefits for outpatient services provided by
a health care professional may not exclude or restrict outpatient
contraceptive services for covered persons for prescription
contraceptives or prescription devices.
§33-16E-5. Extraordinary surcharges prohibited.
A health insurance plan is prohibited from:
(1)Imposing deductibles, copayments, other cost-sharing
mechanisms, or waiting periods for prescription contraceptive drugs
or devices greater than deductibles, copayments, other cost-sharing
mechanisms or waiting periods for other covered prescription drugs
(2)Imposing deductibles, copayments, other cost-sharing
mechanisms or waiting periods for outpatient contraceptive services
greater than such deductibles, copayments, other cost-sharing
mechanisms or waiting periods for other covered outpatient
§33-16E-6. Additional prohibitions.
A health insurance plan is prohibited from:
(1)Denying eligibility, enrollment or renewal of coverage to
any individual because of their use or potential use of
(2)Providing monetary payments or rebates to covered persons
to encourage them to accept less than the minimum protections
available under this section.
(3)Penalizing, or otherwise reducing or limiting the
reimbursement of a health care professional because such
professional prescribed contraceptive drugs or devices, or provided
(4)Providing incentives, monetary or otherwise, to a health- care professional to induce such professional to withhold
contraceptive drugs, devices or services from covered persons.
§33-16E-7. Religious employer exemption.
(a) Notwithstanding any other provision of this article, a
religious employer may exclude or restrict from any health-care
insurance plan contract benefits for any prescription contraceptive
drugs and devices that are contrary to the religious employer's
(b) Nothing in this article shall be construed to exclude
coverage for prescription contraceptive supplies ordered by a
health-care provider with prescriptive authority for reasons other
than contraceptive purposes, such as decreasing the risk of ovarian
cancer or eliminating symptoms of menopause, or for prescription
contraception that is necessary to preserve the life or health of
(c) The health insurer for every religious employer that
invokes the exemption provided under this section shall provide
written notice to prospective enrollees prior to enrollment with
the plan, listing the contraceptive health-care services the
employer refuses to cover for religious reasons. The health
insurer shall make available for purchase at the prevailing group
rate a rider that provides prescription contraceptive drugs and