Chapter 38B. Women’s Rights Regarding Certain Health Insurance.
§ 31–3831. Definitions.
For the purposes of this chapter, the term:
(1) “Commissioner” means Commissioner of the Department of Insurance and Securities Regulation.
(2) “District” means the District of Columbia.
(3) “Group health plan” means an employee welfare plan (as defined in section 3(1) of the Employee Retirement Income Security Act of 1974, approved September 2, 1974 (88 Stat. 829; 29 U.S.C. § 1002(1)), to the extent that the plan provides medical care and includes items and services paid for as medical care to employees or their dependents (as defined under the terms of the plan) directly or through insurance, reimbursement, or otherwise.
(4) “Health insurance coverage” means benefits consisting of medical care (provided directly, through insurance or reimbursement, or otherwise and includes items and services paid for as medical care) under any hospital or medical service policy or certificate, hospital, or medical service plan contract, or health maintenance organization contract offered by a health insurer.
(5) “Health insurer” means any person that provides one or more health benefit plans or insurance in the District, including an insurer, a hospital and medical services corporation, a fraternal benefit society, a health maintenance organization, a multiple employer welfare arrangement, or any other person providing a plan of health insurance subject to the authority of the Commissioner.
(6) “Health benefit plan” means any accident and health insurance policy or certificate, hospital and medical services corporation contract, health maintenance organization subscriber contract, plan provided by a multiple employer welfare arrangement, or plan provided by another benefit arrangement. The term “health benefit plan” does not mean accident only, credit, or disability insurance; coverage of Medicare services or federal employee health plans, pursuant to contracts with the United States government; Medicare supplement or long-term care insurance; dental only or vision only insurance; specified disease insurance; hospital confinement indemnity coverage; limited benefit health coverage; coverage issued as a supplement to liability insurance; insurance arising out of a workers’ compensation or similar law; automobile medical payment insurance; medical expense and loss of income benefits; or insurance under which benefits are payable with or without regard to fault and that is statutorily required to be contained in any liability insurance policy or equivalent self-insurance.
(7) “Individual health plan” means a plan offering health insurance coverage offered to individuals other than in connection with a group health plan.
(8) “Mastectomy” means the surgical removal of all or substantially all of a breast as a result of breast cancer.
§ 31–3832. Coverage for reconstructive surgery following mastectomies.
(a) An individual or group health plan which is a health benefit plan, and a health insurer providing health insurance coverage, that provides medical and surgical benefits with respect to a mastectomy shall, in a manner determined in consultation with the attending physician and the patient, provide the following coverage in the case of a participant or beneficiary who is receiving benefits in connection with a mastectomy and who elects breast reconstruction in connection with such mastectomy:
(1) All stages of reconstruction of the breast on which the mastectomy has been performed;
(2) Surgery and reconstruction of the other breast to produce a symmetrical appearance; and
(3) Prostheses and physical complications at all stages of mastectomy, including lymphedemas.
(b) Coverage for the procedures in subsection (a) of this section may be subject to annual deductibles and coinsurance provisions as may be considered appropriate and as are consistent with those established for other benefits under the health benefit plan or coverage.
§ 31–3833. Notice.
(a) Written notice of the availability of coverage, as set forth in § 31-3832, shall be delivered to the participant and beneficiary under the health plan upon enrollment and annually thereafter. Notice of the benefits shall be prominently positioned in any literature or correspondence made available or distributed by the health benefit plan or health insurer and shall be transmitted to the participant or beneficiary upon the earlier of:
(1) Any yearly informational packet sent to the participant or beneficiary, as part of the packet;
(2) In the next mailing made by the health benefit plan or health insurer to the participant or beneficiary; or
(3) Not later than 60 days after April 3, 2001.
(b) An individual or group health plan which is a health benefit plan, and a health insurer that has already provided notice in order to comply with the Women’s Health and Cancer Rights Act of 1998, approved October 21, 1998 (112 Stat. 2681; 29 U.S.C. § 1185b, 42 U.S.C. § 300gg-6, and 42 U.S.C. § 300gg-52), need not provide additional notice under this chapter; provided, that it files with the Commissioner a written statement, with a copy of the notice attached, certifying that it is in compliance.
§ 31–3834. Hormone replacement therapy coverage.
An individual or group health plan, and a health insurer offering health care coverage that provides coverage for prescription drugs, shall provide benefits which cover any hormone replacement therapy that is prescribed or ordered for treating symptoms and conditions of menopause.
§ 31–3834.01. Full-year coverage for contraception.
(a) An individual health plan or group health plan, a health insurer offering health insurance coverage for prescription drugs, and health insurance coverage through Medicaid and the D.C. Healthcare Alliance program shall provide coverage for a supply of contraceptives intended to last over the course of a 12-month period, that shall be dispensed all at once or over the course of the 12 months at the patient's election, including for over-the-counter contraceptives and contraceptives obtained from a licensed pharmacist pursuant to § 3-1202.08(g-1); provided, that the D.C. Healthcare Alliance program shall not be required to provide coverage for a supply of contraceptives intended to last longer than the period of recertification for the D.C. Healthcare Alliance. The costs of any consultation by the pharmacist shall also be covered.
(b) For the purposes of this section, the term:
(1) "Contraceptive" means a drug or drug regimen approved by the U.S. Food and Drug Administration to prevent pregnancy.
(2) "Medicaid" shall have the same meaning as provided in § 4-204.12(2).
(c) Repealed.
§ 31–3834.02. Coverage of preventive health services.
(a) An individual health plan or group health plan and health insurance coverage through Medicaid or the D.C. Healthcare Alliance program shall provide coverage for, and shall not impose any cost-sharing requirements on, women for the following preventive health services and products:
(1)(A) Breast cancer screening;
(A-i) Adjuvant breast cancer screening, including magnetic resonance imaging, ultrasound screening, or molecular breast imaging of the breast, if:
(i) A mammogram demonstrates a Class C or Class D breast density classification; or
(ii) A woman is believed to be at an increased risk for cancer due to family history or prior personal history of breast cancer, positive genetic testing, or other indications of an increased risk for cancer as determined by a woman's physician or advanced practice registered nurse;
(B) Breast feeding support, services, and supplies;
(C) Screening for cervical cancer, including HPV testing;
(D) Screening for gestational diabetes;
(E) Screening and counseling for HIV;
(F) Screening and counseling for interpersonal and domestic violence;
(G) Screening and counseling for sexually-transmitted diseases;
(H) Screening and counseling for Hepatitis B and C;
(I) Well-woman preventive visits, including visits to obtain necessary preventive care, preconception care, and prenatal care;
(J) Folic acid supplementation;
(K) Breast cancer chemoprevention counseling and preventive medications;
(L) Risk assessment and genetic counseling and testing using the Breast Cancer Risk Assessment tool approved by the National Cancer Institute; and
(M) Rh incompatibility screening;
(2) Those evidence-based items or services that have in effect a rating of "A" or "B" in the recommendations of the United States Preventive Services Task Force as of September 19, 2017; and
(3) Any additional health services or products identified by rules issued pursuant to subsection (c) of this section.
(b) A health insurer and health insurance coverage through Medicaid or the D.C. Healthcare Alliance program offering health insurance coverage exclusively for prescription drugs shall provide coverage for, and shall not impose any cost-sharing requirements for women for contraceptive drugs, devices, products, and services, including those obtained over-the-counter and those prescribed and dispensed by a pharmacist pursuant to § 3-1202.08(g-1), and the following:
(1) Those evidence-based prescription-drug items or related services that have in effect a rating of "A" or "B" in the recommendations of the United States Preventive Services Task Force as of September 19, 2017; and
(2) Any additional contraceptive drugs, devices, products and services identified by rules issued pursuant to subsection (c) of this section.
(c)(1) Within 30 days after March 28, 2018, the Mayor, pursuant to subchapter I of Chapter 5 of Title 2, shall issue rules listing the items and services defined in subsections (a) and (b) of this section to be covered without imposing any cost-sharing requirements.
(2) The Mayor shall amend the rules required by this subsection as necessary to:
(A) Include additional preventive services or products for women or expansions of covered preventive services or products for women identified by the United States Preventive Services Task Force or the Health Resources and Services Administration of the United States Department of Health and Human Services after September 19, 2017; and
(B) Remove items or services defined in subsections (a) and (b) of this section that a federal agency determines to pose a significant safety concern, consistent with the requirements of 45 C.F.R. § 147.130(b).
(d) For the purposes of this section, the term "breast density classification" means the 4 levels of breast density identified in the Breast Imaging Reporting and Data System established by the American College of Radiology, which are:
(A) Class A, indicating fatty breast tissue;
(B) Class B, indicating scattered fibroglandular breast tissue;
(C) Class C, indicating heterogeneously dense breast tissue with fibrous and glandular tissue that are evenly distributed throughout the breast; and
(D) Class D, indicating extremely dense breast tissue.
§ 31–3834.03. Coverage of additional preventive health services.
(a) Health insurance coverage through Medicaid or the D.C. Healthcare Alliance program shall also provide coverage for and shall not impose any cost-sharing requirements for the following:
(1) Voluntary sterilization procedures for women;
(2)(A) All contraceptive drugs, devices, products and services approved by the U.S. Food and Drug Administration ("FDA"), including emergency contraception; provided, that:
(B) If there is a therapeutic equivalent of an FDA-approved contraceptive drug, device, product, or service, coverage shall also include either the original FDA-approved contraceptive drug, device, product, or service or at least one of its therapeutic equivalents, without imposing any cost-sharing requirements;
(C) If the covered contraceptive drug, device, product, or service is deemed medically inadvisable by a provider, the health insurer shall defer to the determination and judgment of the attending provider and provide coverage for the alternative prescribed contraceptive drug, device, product, or service without imposing any cost-sharing requirements; and
(D) Nothing in this section shall prohibit a health insurer from requiring the use of a generic prescription drug when providing coverage for preventive contraceptive drugs, devices, products, or services, so long as such health insurer:
(i) Has a process for a member to seek medically necessary coverage of a covered brand name contraceptive drug, device, product, or service as determined by the member's prescribing provider; and
(ii) Provides coverage for a brand name contraceptive drug, device, product, or service when there is no generic substitute available in the market;
(3) Contraceptive services including consultation with a pharmacist, patient education, and counseling on contraceptive drugs, devices, products, or services; and
(4) Follow-up services related to the drugs, devices, products, and services covered under this section, including management of side effects, counseling for continued adherence, and device insertion and removal.
(b) Beginning on January 1, 2019, or the next date when carrier forms are approved, whichever is earlier, an individual health plan or group health plan shall also provide coverage for and shall not impose any cost-sharing requirements for all drugs, devices, products, and services listed in subsection (a) of this section; provided, that an individual health plan or group health plan subject to this subsection may require a co-payment or cost sharing for coverage of male contraceptive products for an enrollee covered by a high deductible health plan, as defined in section 1201(a) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, approved December 8, 2003 (117 Stat. 2066; 26 U.S.C. § 223(c)(2)).
§ 31–3834.04. Religious exemption and accommodation.
(a)(1) An employer organized and operating as a nonprofit entity and referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, approved October 22, 1986 (100 Stat. 2740; 26 U.S.C. § 6033(a)(3)(A)(i) or (iii)), may be exempt from any requirement to cover contraceptive or fertility enhancing drugs, devices, products, and services under §§ 31-3834.01, 31-3834.02, 31-3834.03, and 31-3834.06.
(2) An employer claiming an exemption under this subsection shall provide its employees and prospective employees reasonable and timely notice of the exemption before enrollment with the group health plan, and the notice shall list the contraceptive drugs, devices, products, and services for which the employer does not provide coverage.
(3) Nothing in this subsection shall be construed to allow for the exclusion of coverage for contraceptive drugs, devices, products, and service as prescribed by a provider, acting within his or her scope of practice, for reasons other than contraceptive purposes, such as decreasing the risk of ovarian cancer or eliminating symptoms of menopause, or for contraceptive drugs, devices, products, and services that are necessary to preserve the life or health of an enrollee.
(b)(1) Nothing in this chapter shall be construed to require an employer to provide coverage for contraceptive drugs, devices, products, and services through its group health plan if the employer has provided to its group health insurance issuer a notice of request for accommodation, in a form and manner specified by the Mayor, and the insurer has certified that the employer meets the requirements of subsection (c) of this section.
(2) Beginning on January 1, 2019, and on a quarterly basis thereafter, a group health insurance issuer shall notify the Department of Insurance, Securities, and Banking which employers have been granted an accommodation pursuant to subsection (c) of this section.
(3) An employer that receives an accommodation pursuant to subsection (c) of this section shall provide, through its group health plan, coverage for contraceptive drugs, devices, products, and services as prescribed and dispensed by a provider, acting within her or her scope of practice, for reasons other than contraceptive purposes, such as decreasing the risk of ovarian cancer or eliminating symptoms of menopause, and for contraceptive drugs, devices, products, and services that are necessary to preserve the life or health of an enrollee.
(c) A group health insurance issuer shall provide an employer with an accommodation to the requirements of § 31-3834.01, § 31-3834.02, § 31-3834.03, or § 31-3834.06 upon receipt of a self-certification, in a form and manner specified by the Mayor, that the employer is:
(1) A nonprofit entity that holds itself out as a religious organization and objects to covering some or all of the contraceptive or fertility enhancing drugs, devices, products, or services on account of its sincerely held religious beliefs; or
(2) A closely-held for-profit entity; provided, that its highest governing body (such as its board of directors, board of trustees, or owners, if managed directly by its owners) has adopted a resolution or similar action establishing that it objects to covering some or all of the contraceptive or fertility enhancing drugs, devices, products, or services on account of the owners' sincerely held religious beliefs.
(d) Upon receipt of a notice of request for accommodation that conforms to the requirements of subsection (c) of this section, a group health insurance issuer shall:
(1) Exclude contraceptive or fertility enhancing drugs, devices, products, or services coverage from the group health insurance coverage provided in connection with the employer's group health plan; and
(2) Provide separate payments for any contraceptive or fertility enhancing drugs, devices, products, or services required to be covered under § 31-3834.01, § 31-3834.02, § 31-3834.03, or § 31-3834.06 without imposing any cost-sharing requirements or any other fee directly or indirectly on the employer, the group health plan, or plan participants or beneficiaries.
(e) For the purposes of this section, the term "closely-held for-profit entity" means an entity that:
(1) Is not a nonprofit entity;
(2) Has no publicly traded ownership interests of any class of common equity securities required to be registered under section 12 of the Securities Exchange Act of 1934, approved June 6, 1934 (48 Stat. 892; 15 U.S.C. § 78l); and
(3) Has more than 50% of the value of its ownership interest owned directly or indirectly by 5 or fewer individuals, or has an ownership structure that is substantially similar thereto, as of the date of the entity's self-certification pursuant to subsection (c) of this section.
§ 31–3834.05. Notice of rights to healthcare coverage.
(a) An insurer that is subject to § 31-3834.01, § 31-3834.02, or § 31-3834.03 shall make readily accessible to enrollees and potential enrollees information regarding:
(1) Full and accurate information relevant to coverage and cost-sharing for contraceptive drugs, devices, products, and services by each health insurance plan, including an explanation of an insured's financial responsibility for payment of premiums, coinsurance, copayments, deductibles, and any other charges;
(2) The coverage of other drugs, devices, products, and services described in §§ 31-3834.01, 31-3834.02, and 31-3834.03; and
(3) The right to receive up to a 12-month supply of self-administered hormonal contraceptives prescribed and dispensed by a licensed pharmacist, pursuant to § 3-1202.08(g-1), without cost-sharing requirements.
(b)(1) The insurer shall provide the information described in subsection (a) of this section in a consumer-friendly format:
(A) That can be viewed on the insurer's public website through a clearly identifiable link or tab without requiring an individual to create or access an account or enter a policy or contract number;
(B) By email or letter within 14 days after a request by an enrollee; and
(C) Within one year after March 28, 2018, or whenever written materials are reprinted, whichever is sooner, in written materials that explain benefits or coverage that are provided to enrollees and potential enrollees, including in an addendum summarizing benefits and coverage.
(2) This subsection shall be construed consistently with section 2715 of the Public Health Services Act, as amended by the Patient Protection and Affordable Care Act, approved March 23, 2010 (124 Stat. 132; 42 U.S.C. § 300gg-15).
(c) The Department of Insurance, Securities and Banking shall provide health insurers operating in the District of Columbia with an annual notice of their obligation to provide coverage for drugs, devices, products, and services described in §§ 31-3834.01, 31-3834.02, and 31-3834.03.
§ 31–3834.06. Coverage of fertility treatments.
(a)(1) Beginning January 1, 2025, a health insurer offering a large group health benefit plan shall provide coverage for the diagnosis and treatment of infertility, including in vitro fertilization and standard fertility preservation services, as provided in paragraph (2) of this subsection; provided that the treatment would be consistent with a physician's or surgeon's overall plan of care.
(2) The health benefit plan shall cover:
(A) At least 3 complete oocyte retrievals with unlimited embryo transfers from those oocyte retrievals or from any oocyte retrieval performed prior to January 1, 2025, in accordance with the guidelines of ASRM, using single embryo transfer when recommended and medically appropriate; and
(B) The medical costs related to an embryo transfer to be made from an enrollee to a third-party; except, that the enrollee's coverage shall not extend to any medical costs of the surrogate or gestational carrier after the embryo transfer procedure.
(b)(1) Beginning January 1, 2025, a health insurer offering an individual health benefit plan or small group health plan shall provide coverage for the diagnosis and treatment of infertility, including in vitro fertilization and standard fertility preservation services, as provided in paragraph (2) of this subsection; provided that the treatment would be consistent with a physician's or surgeon's overall plan of care.
(2) The health benefit plan shall cover:
(A) At least 3 complete oocyte retrievals with unlimited embryo transfers from those oocyte retrievals or from any oocyte retrieval performed prior to January 1, 2025, in accordance with the guidelines of ASRM, using single embryo transfer when recommended and medically appropriate; and
(B) The medical costs related to an embryo transfer to be made from an enrollee to a third-party; except, that the enrollee's coverage shall not extend to any medical costs of the surrogate or gestational carrier after the embryo transfer procedure.
(c)(1) Beginning January 1, 2024, the DC Healthcare Alliance program shall provide health insurance coverage for the diagnosis of infertility and any medically necessary ovulation enhancing drugs and medical services related to prescribing and monitoring the use of such drugs, which shall include at least 3 cycles of ovulation-enhancing medication treatment over an enrollee's lifetime.
(2) By January 1, 2024, the Department of Health Care Finance shall submit an amendment to the Medicaid state plan to the Centers for Medicare & Medicaid Services to authorize coverage through Medicaid for the diagnosis of infertility and any medically necessary ovulation enhancing drugs and medical services related to prescribing and monitoring the use of such drugs, which shall include at least 3 cycles of ovulation-enhancing medication treatment over an enrollee's lifetime.
(d) Within 180 days of September 6, 2023, the Department of Health Care Finance shall submit a report to the Council after consulting with the Centers for Medicare & Medicaid Services on whether in vitro fertilization and standard fertility preservation services are medically reasonable and necessary procedures under federal law, possible methods for covering in-vitro fertilization and standard fertility preservation services as a Medicaid covered benefit for both fee-for-service and managed care organizations, including any potentially applicable waiver authorities, and the amount of money that would need to be allocated to federal and local funds for such coverage.
(e) Coverage for the treatment of infertility shall be provided without discrimination on the basis of age, ancestry, disability, domestic partner status, gender, gender expression, gender identity, genetic information, marital status, national origin, race, religion, sex, or sexual orientation.
(f) A health insurer shall not impose:
(1) Deductibles, copayments, coinsurance, benefit maximums, waiting periods or any other limitations on coverage for the diagnosis and treatment of infertility, including the prescription of fertility medications, different from those imposed upon benefits for services not related to infertility;
(2) Pre-existing condition exclusions or pre-existing condition waiting periods on coverage for the diagnosis and treatment of infertility or use any prior diagnosis of or prior treatment for infertility as a basis for excluding, limiting, or otherwise restricting the availability of coverage for required benefits; or
(3) Limitations on coverage based solely on arbitrary factors, including number of attempts, dollar amounts, or age, or provide different benefits to, or impose different requirements upon, a class protected under Unit A of Chapter 14 of Title 2 than that provided to, or required of, other patients.
(g) Nothing in this section shall be construed to interfere with the clinical judgment of a physician or surgeon.
(h) The health insurer shall notify all policyholders and all prospective group policyholders with whom they are negotiating of the availability of coverage provided under this section.
(i) For the purposes of this section, the term:
(1) "ASRM" means the American Society for Reproductive Medicine.
(2) "Infertility" means a disease, condition, or status characterized by:
(A) The failure to establish a pregnancy or to carry a pregnancy to live birth after regular, unprotected sexual intercourse in accordance with the guidelines of ASRM;
(B) A person's inability to reproduce without medical intervention either as a single individual or with their partner; or
(C) A licensed physician's findings based on a patient's medical, sexual, and reproductive history, age, physical findings, or diagnostic testing.
(3) "Treatment for infertility" means procedures consistent with established medical practices in the treatment of infertility by licensed physicians and surgeons, including diagnosis, diagnostic tests, medication, surgery, or gamete intrafallopian transfer.
(4) "Standard fertility preservation services" means procedures that are consistent with established medical practices or professional guidelines published by ASRM or the American Society of Clinical Oncology for a person who has a medical condition or is expected to undergo medication therapy, surgery, radiation, chemotherapy, or other medical treatment that is recognized by medical professionals to cause a risk of impairment to fertility.
(j) The Mayor, pursuant to subchapter I of Chapter 5 of Title 2, shall issue rules to implement the provisions of this section.
§ 31–3835. Prohibitions.
An individual or group health plan which is a health benefit plan, and a health insurer offering health care coverage, shall not:
(1) Deny a patient eligibility, or continued eligibility, to enroll or renew coverage under terms of the health benefit plan, solely for the purpose of avoiding the requirements of this chapter; or
(2) Penalize or otherwise reduce or limit the reimbursement of an attending provider, or provide incentives (monetary or otherwise) to an attending provider, to induce such provider to provide care to an individual participant or beneficiary in a manner inconsistent with this chapter.
§ 31–3836. Regulations.
The Commissioner shall promulgate regulations necessary to implement the provisions of this chapter within 180 days after April 3, 2001.
§ 31–3837. Applicability to group health plans.
The provisions of this chapter shall apply to group health benefit plans for years beginning on or after April 3, 2001.
