In 1998, a district court in Washington ruled that Bartell Drug Co. could not exclude prescription contraceptives from its generally comprehensive prescription plan. The ruling stated when the company omitted contraceptive coverage that constituted discrimination on the basis of sex.
Lynette Falkowski, a Cleveland lawyer with McDonald, Hopkins, Burke & Haber, represents companies with facilities in multiple states and says that the ruling can affect Ohio businesses.
“What we tell employers is, if you have multi-state operations, …cover it (contraceptives) across the board,” says Falkowski.
As with any law, the key lies in the language. In this case, the term comprehensive is the issue. Health care plans that offer coverage for other preventative medications are considered comprehensive.
The Bartell ruling, set the precedence in how the some courts look at pregnancy. According to the ruling, pregnancy is not a state desired by all women or at all times in a women’s life. Therefore, the ruling follows that prescription contraceptives are similar to other preventative drugs and should be covered.
“What really prompted this whole issue to come up is when Viagra came out,” Falkowski says. “If your plan covers Viagra, I would recommend you probably cover prescription contraceptives as well.”
Since the decision 13 states have added legislation regarding contraception coverage and although Ohio is not one of them a bill (House Bill 432, Contraceptive Drug Insurance Act) is pending.
It has been in committee since January of this year but Falkowski says, “In the wake of Sept. 11th, these issues have pretty much been tabled.”
In fact federal changes are also being considered; the Equity in Prescription Insurance and Contraceptive Coverage Act has also been in committee since Sept. 10, 2001.
Falkowski says in light of rising health care expenses, some employers are waiting for the law to pass in Ohio before offering contraceptive coverage. She warns, however, businesses could be at risk to become the next plaintiff. “You could be the next Bartell Drug Co,” she adds.
How to reach: McDonald, Hopkins, Burke & Haber Co., (216) 348-5400 or ww.mhbh.com