Access to Infertility Treatment and Care Act

II 116TH CONGRESS 1ST SESSION S. 1461 To require health insurance coverage for the treatment of infertility. IN THE SENATE OF THE UNITED STATES MAY 14, 2019 Mr. BOOKER (for himself and Mr. MENENDEZ) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions A BILL To require health insurance coverage for the treatment of infertility. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Access to Infertility 4 Treatment and Care Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds as follows: 7 (1) Infertility is a medical disease recognized by 8 the World Health Organization, the American Soci- 9 ety for Reproductive Medicine, and the American 10 VerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461 tkelley on DSKBCP9HB2PROD with BILLS 2 •S 1461 IS Medical Association that affects men and women 1 equally. 2 (2) According to the Centers for Disease Con- 3 trol and Prevention, 1 in 8 couples have difficulty 4 getting pregnant or sustaining a pregnancy. 5 (3) Infertility affects a broad spectrum of pro- 6 spective parents. No matter what race, religion, sex- 7 ual orientation, or economic status one is, infertility 8 does not discriminate. 9 (4) According to the Centers for Disease Con- 10 trol and Prevention, 11 percent of women in the 11 United States between the ages of 15 and 44 have 12 difficulty getting pregnant or staying pregnant. 13 Similarly, 9 percent of men in the United States be- 14 tween the ages of 15 and 44 experience infertility. 15 (5) Infertility disproportionately affects individ- 16 uals with particular health complications. For cancer 17 patients and others who must undergo treatments 18 such as chemotherapy, radiation therapy, hormone 19 therapy, or surgery that are likely to harm the re- 20 productive system and organs, fertility preservation 21 becomes necessary. 22 (6) Leading causes of infertility include chronic 23 conditions and diseases of the endocrine or metabolic 24 systems, such as primary ovarian insufficiency, poly- 25 VerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461 tkelley on DSKBCP9HB2PROD with BILLS 3 •S 1461 IS cystic ovarian syndrome, endometriosis, thyroid dis- 1 orders, menstrual cycle defects, autoimmune dis- 2 orders, hormonal imbalances, testicular disorders, 3 and urological health issues. Other causes include 4 structural problems or blockages within the repro- 5 ductive system, exposure to infectious diseases, occu- 6 pational or environmental hazards, or genetic influ- 7 ences. 8 (7) Recent improvements in therapy and cryo- 9 preservation make pregnancy possible for more peo- 10 ple than in past years. 11 (8) Like all other diseases, infertility and its 12 treatments should be covered by health insurance. 13 (9) A 2017 national survey of employer-spon- 14 sored health plans found that 44 percent of employ- 15 ers with at least 500 employees did not cover infer- 16 tility services, and 25 percent of companies with 17 20,000 or more employees did not cover infertility 18 services. 19 (10) Coverage for infertility services under 20 State Medicaid programs is limited. The Medicaid 21 programs of only 5 States provide diagnostic testing 22 for women and men in all of their program eligibility 23 pathways; the Medicaid program of only one State 24 provides coverage for certain medications for women 25 VerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461 tkelley on DSKBCP9HB2PROD with BILLS 4 •S 1461 IS experiencing infertility; and no State Medicaid pro- 1 grams cover intrauterine insemination or in vitro 2 fertilization. 3 (11) States that do not require private insur- 4 ance coverage of assisted reproductive technology 5 have higher rates of multiple births. 6 (12) The ability to have a family should not be 7 denied to anyone on account of a lack of insurance 8 coverage for medically necessary treatment. 9 SEC. 3. STANDARDS RELATING TO BENEFITS FOR TREAT- 10 MENT OF INFERTILITY AND PREVENTION OF 11 IATROGENIC INFERTILITY. 12 (a) IN GENERAL.—Part A of title XXVII of the Pub- 13 lic Health Service Act (42 U.S.C. 300gg et seq.) is amend- 14 ed by inserting after section 2728 the following: 15 ‘‘SEC. 2729A. STANDARDS RELATING TO BENEFITS FOR 16 TREATMENT OF INFERTILITY AND PREVEN- 17 TION OF IATROGENIC INFERTILITY. 18 ‘‘(a) IN GENERAL.—A group health plan or a health 19 insurance issuer offering group or individual health insur- 20 ance coverage shall ensure that such plan or coverage pro- 21 vides coverage for— 22 ‘‘(1) the treatment of infertility, including non- 23 experimental assisted reproductive technology proce- 24 VerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461 tkelley on DSKBCP9HB2PROD with BILLS 5 •S 1461 IS dures, if such plan or coverage provides coverage for 1 obstetrical services; and 2 ‘‘(2) standard fertility preservation services 3 when a medically necessary treatment may directly 4 or indirectly cause iatrogenic infertility. 5 ‘‘(b) DEFINITIONS.—In this section: 6 ‘‘(1) the term ‘assisted reproductive technology’ 7 means treatments or procedures that involve the 8 handling of human egg, sperm, and embryo outside 9 of the body with the intent of facilitating a preg- 10 nancy, including in vitro fertilization, egg, embryo, 11 or sperm cryopreservation, egg or embryo donation, 12 and gestational surrogacy; 13 ‘‘(2) the term ‘infertility’ means a disease, char- 14 acterized by the failure to establish a clinical preg- 15 nancy— 16 ‘‘(A) after 12 months of regular, unpro- 17 tected sexual intercourse; or 18 ‘‘(B) due to a person’s incapacity for re- 19 production either as an individual or with his or 20 her partner, which may be determined after a 21 period of less than 12 months of regular, un- 22 protected sexual intercourse, or based on med- 23 ical, sexual and reproductive history, age, phys- 24 ical findings, or diagnostic testing; and 25 VerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461 tkelley on DSKBCP9HB2PROD with BILLS 6 •S 1461 IS ‘‘(3) the term ‘iatrogenic infertility’ means an 1 impairment of fertility due to surgery, radiation, 2 chemotherapy, or other medical treatment. 3 ‘‘(c) REQUIRED COVERAGE.— 4 ‘‘(1) COVERAGE FOR INFERTILITY.—Subject to 5 paragraph (3), a group health plan and a health in- 6 surance issuer offering group or individual health in- 7 surance coverage that includes coverage for obstet- 8 rical services shall provide coverage for treatment of 9 infertility determined appropriate by the treating 10 physician, including, as appropriate, ovulation induc- 11 tion, egg retrieval, sperm retrieval, artificial insemi- 12 nation, in vitro fertilization, genetic screening, intra- 13 cytoplasmic sperm injection, and any other non-ex- 14 perimental treatment, as determined by the Sec- 15 retary in consultation with appropriate professional 16 and patient organizations such as the American So- 17 ciety for Reproductive Medicine, RESOLVE: The 18 National Infertility Association, and the American 19 College of Obstetricians and Gynecologists. 20 ‘‘(2) COVERAGE FOR IATROGENIC INFER- 21 TILITY.—A group health plan and a health insur- 22 ance issuer offering group or individual health insur- 23 ance coverage shall provide coverage of fertility pres- 24 ervation services for individuals who undergo medi- 25 VerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461 tkelley on DSKBCP9HB2PROD with BILLS 7 •S 1461 IS cally necessary treatment that may cause iatrogenic 1 infertility, as determined by the treating physician, 2 including cryopreservation of gametes and other pro- 3 cedures, as determined by the Secretary, consistent 4 with established medical practices and professional 5 guidelines published by professional medical organi- 6 zations, including the American Society of Clinical 7 Oncology and the American Society for Reproductive 8 Medicine. 9 ‘‘(3) LIMITATION ON COVERAGE OF ASSISTED 10 REPRODUCTIVE TECHNOLOGY.—A group health plan 11 and a health insurance issuer offering group or indi- 12 vidual health insurance coverage shall provide cov- 13 erage for assisted reproductive technology as re- 14 quired under paragraph (1) if— 15 ‘‘(A) the individual is unable to bring a 16 pregnancy to a live birth through minimally 17 invasive infertility treatments, as determined 18 appropriate by the treating physician, with con- 19 sideration given to participant’s or beneficiary’s 20 specific diagnoses or condition for which cov- 21 erage is available under the plan or coverage; 22 and 23 ‘‘(B) the treatment is performed at a med- 24 ical facility that— 25 VerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461 tkelley on DSKBCP9HB2PROD with BILLS 8 •S 1461 IS ‘‘(i) conforms to the standards of the 1 American Society for Reproductive Medi- 2 cine and the Society for Assisted Repro- 3 ductive Technology; and 4 ‘‘(ii) is in compliance with any stand- 5 ards set by an appropriate Federal agency. 6 ‘‘(d) LIMITATION.—Cost-sharing, including deducti- 7 bles and coinsurance, or other limitations for infertility 8 and services to prevent iatrogenic infertility may not be 9 imposed with respect to the services required to be covered 10 under subsection (c) to the extent that such cost-sharing 11 exceeds the cost-sharing applied to similar services under 12 the group health plan or health insurance coverage or such 13 other limitations are different from limitations imposed 14 with respect to such similar services. 15 ‘‘(e) PROHIBITIONS.—A group health plan and a 16 health insurance issuer offering group or individual health 17 insurance coverage may not— 18 ‘‘(1) provide incentives (monetary or otherwise) 19 to a participant or beneficiary to encourage such 20 participant or beneficiary not to be provided infer- 21 tility treatments or fertility preservation services to 22 which such participant or beneficiary is entitled 23 under this section or to providers to induce such 24 VerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461 tkelley on DSKBCP9HB2PROD with BILLS 9 •S 1461 IS providers not to provide such treatments to qualified 1 participants or beneficiaries; 2 ‘‘(2) prohibit a provider from discussing with a 3 participant or beneficiary infertility treatments or 4 fertility preservation technology or medical treat- 5 ment options relating to this section; or 6 ‘‘(3) penalize or otherwise reduce or limit the 7 reimbursement of a provider because such provider 8 provided infertility treatments or fertility preserva- 9 tion services to a qualified participant or beneficiary 10 in accordance with this section. 11 ‘‘(f) RULE OF CONSTRUCTION.—Nothing in this sec- 12 tion shall be construed to require a participant or bene- 13 ficiary to undergo infertility treatments or fertility preser- 14 vation services. 15 ‘‘(g) NOTICE.—A group health plan and a health in- 16 surance issuer offering group or individual health insur- 17 ance coverage shall provide notice to each participant and 18 beneficiary under such plan regarding the coverage re- 19 quired by this section in accordance with regulations pro- 20 mulgated by the Secretary. Such notice shall be in writing 21 and prominently positioned in any literature or cor- 22 respondence made available or distributed by the plan or 23 issuer and shall be transmitted— 24 VerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461 tkelley on DSKBCP9HB2PROD with BILLS 10 •S 1461 IS ‘‘(1) in the next mailing made by the plan or 1 issuer to the participant or beneficiary; 2 ‘‘(2) as part of any yearly informational packet 3 sent to the participant or beneficiary; or 4 ‘‘(3) not later than January 1, 2020, 5 whichever is earlier. 6 ‘‘(h) LEVEL AND TYPE OF REIMBURSEMENTS.— 7 Nothing in this section shall be construed to prevent a 8 group health plan or a health insurance issuer offering 9 group or individual health insurance coverage from negoti- 10 ating the level and type of reimbursement with a provider 11 for care provided in accordance with this section.’’. 12 (b) CONFORMING AMENDMENT.—Section 2724(c) of 13 the Public Health Service Act (42 U.S.C. 300gg–23(c)) 14 is amended by striking ‘‘section 2704’’ and inserting ‘‘sec- 15 tions 2704 and 2708’’. 16 (c) EFFECTIVE DATES.— 17 (1) IN GENERAL.—The amendments made by 18 subsections (a) and (b) shall apply for plan years be- 19 ginning on or after the date that is 6 months after 20 the date of enactment of this Act. 21 (2) COLLECTIVE BARGAINING EXCEPTION.— 22 (A) IN GENERAL.—In the case of a group 23 health plan maintained pursuant to one or more 24 collective bargaining agreements between em- 25 VerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461 tkelley on DSKBCP9HB2PROD with BILLS 11 •S 1461 IS ployee representatives and one or more employ- 1 ers ratified before the date of enactment of this 2 Act, the amendments made by subsection (a) 3 shall not apply to plan years beginning before 4 the later of— 5 (i) the date on which the last collec- 6 tive bargaining agreements relating to the 7 plan terminates (determined without re- 8 gard to any extension thereof agreed to 9 after the date of enactment of this Act), or 10 (ii) the date occurring 6 months after 11 the date of the enactment of this Act. 12 (B) CLARIFICATION.—For purposes of 13 subparagraph (A), any plan amendment made 14 pursuant to a collective bargaining agreement 15 relating to the plan which amends the plan sole- 16 ly to conform to any requirement added by sub- 17 section (a) shall not be treated as a termination 18 of such collective bargaining agreement. 19 SEC. 4. FEDERAL EMPLOYEES HEALTH BENEFITS PRO- 20 GRAM. 21 (a) IN GENERAL.—Section 8902 of title 5, United 22 States Code, is amended by adding at the end the fol- 23 lowing: 24 VerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461 tkelley on DSKBCP9HB2PROD with BILLS 12 •S 1461 IS ‘‘(p) COVERAGE FOR DIAGNOSIS AND TREATMENT 1 OF INFERTILITY AND PREVENTION OF IATROGENIC IN- 2 FERTILITY.— 3 ‘‘(1) DEFINITIONS.—In this subsection, the 4 terms ‘infertility’ and ‘iatrogenic infertility’ have the 5 meanings given those terms in section 2729A of [Text truncated for display. Full text available on Congress.gov.]