On July 19, 2023, Senator Cory A. Booker (NJ) and Representative Rosa L. DeLauro (CT) reintroduced the Access to Infertility Treatment and Care Act (the “Act”) to the United States Senate and House of Representatives, respectively.
The Act was proposed in the previous legislative session; however, it did not receive the necessary support for passage.
In this issue of KingSpry’s heARTbeat blog, Adoption and ART Practice Chair, Dorota Gasienica-Kozak, Esq., reviews the proposed bill (S.2386/H.R.4731) and details how it will expand greater access to infertility services for all Americans.
Findings
The Act recognizes infertility as a medical disease that affects a broad spectrum of prospective parents. With the recent developments in therapy and cryopreservation, pregnancy has been made possible for more people in the last few years.
As detailed in the proposed legislation, a 2017 national survey of employer-sponsored health plans found that 44% of employers with at least 500 employees did not cover infertility services, and 25% of companies with 20,000 or more employees did not cover infertility services. Further, coverage for infertility services under State Medicaid programs is limited. As such, the Act intends to ensure that infertility treatments are covered by health insurance just as other diseases are.
“The emotional and physical toll of infertility should not be intensified by the financial burden that can come with treatment. This bill will ensure that American families get the insurance coverage they deserve and the opportunity to grow their family.” Said Representative DeLauro.
Insurance Coverage
Upon its passage, the Act will require group health plans or insurance issuers that offer group or individual health insurance coverage (collectively “insurance issuers”) to provide coverage for: (1) the treatment of infertility, including nonexperimental assisted reproductive technology (ART) procedures, if such plan or coverage provides coverage for obstetrical services; and (2) standard fertility preservation services when a medically necessary treatment may directly or indirectly cause iatrogenic infertility.
Specific Coverage
Coverage for Infertility: The Act defines infertility as a disease, characterized by the failure to establish a clinical pregnancy after twelve (12) months of regular, unprotected sexual intercourse, or due to a person’s incapacity for reproduction. The Act will require insurance issuers that cover obstetrical services to provide coverage for treatment of infertility. Such treatments include ovulation induction, egg retrieval, sperm retrieval, artificial insemination, in vitro fertilization (IVF), and more.
Coverage for Iatrogenic Infertility: The Act defines iatrogenic infertility as an impairment of fertility due to surgery, radiation, chemotherapy, or other medical treatment. The Act will require insurance issuers to cover fertility preservation services for individuals who undergo medically necessary treatment that may cause iatrogenic infertility.
Prohibitions
The Act does not permit an insurance issuer to: (1) offer incentives to an enrollee to not receive infertility treatment; (2) prohibit a provider from discussing infertility treatments or fertility technology with an enrollee; or (3) penalize a provider because they provided infertility treatments or fertility preservation services to a qualified enrollee.
Notice Requirement
Should the Act pass, all group health plans must provide notice to each enrollee regarding the coverage required under the Act.
Moving Forward
The Act has received support from individuals involved in the ART community. Barbara Collura, President and CEO of RESOLVE: The National Infertility Association, said “We need to prioritize family building, and that means policy change that allows for everyone to access the medical care they need to build their family.”
Presently, it is unclear whether the Act will receive the necessary bipartisan support for passage; however, its proposal suggests that Congress is motivated to expand protections of and access to ART services.
“I am proud to join Representative DeLauro in introducing this bill that will require more insurance plans to cover treatment for infertility and fertility preservation services, so everyone has access to the care they need to grow their families.” Said Senator Booker.
If you have questions regarding ART, KingSpry’s ART Law Group Chair, Dorota Gasienica-Kozak, Esq., is prepared to assist you. Ms. Gasienica-Kozak is a fellow of the Academy of Adoption and Assisted Reproduction Attorneys (AAAA), a member of the American Society of Reproductive Medicine (ASRM), a member of SEEDS, a promoter for RESOLVE: The National Infertility Association, and a committee member of the American Bar Association’s Family and ART Law sections.
heARTbeat is a publication of KingSpry’s Adoption/ART Law Practice Group. It is meant to be informational and does not constitute legal advice.
