[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1461 Introduced in Senate (IS)]
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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,
Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To require health insurance coverage for the treatment of infertility.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Access to Infertility Treatment and
Care Act''.
SEC. 2. FINDINGS.
Congress finds as follows:
(1) Infertility is a medical disease recognized by the
World Health Organization, the American Society for
Reproductive Medicine, and the American Medical Association
that affects men and women equally.
(2) According to the Centers for Disease Control and
Prevention, 1 in 8 couples have difficulty getting pregnant or
sustaining a pregnancy.
(3) Infertility affects a broad spectrum of prospective
parents. No matter what race, religion, sexual orientation, or
economic status one is, infertility does not discriminate.
(4) According to the Centers for Disease Control and
Prevention, 11 percent of women in the United States between
the ages of 15 and 44 have difficulty getting pregnant or
staying pregnant. Similarly, 9 percent of men in the United
States between the ages of 15 and 44 experience infertility.
(5) Infertility disproportionately affects individuals with
particular health complications. For cancer patients and others
who must undergo treatments such as chemotherapy, radiation
therapy, hormone therapy, or surgery that are likely to harm
the reproductive system and organs, fertility preservation
becomes necessary.
(6) Leading causes of infertility include chronic
conditions and diseases of the endocrine or metabolic systems,
such as primary ovarian insufficiency, polycystic ovarian
syndrome, endometriosis, thyroid disorders, menstrual cycle
defects, autoimmune disorders, hormonal imbalances, testicular
disorders, and urological health issues. Other causes include
structural problems or blockages within the reproductive
system, exposure to infectious diseases, occupational or
environmental hazards, or genetic influences.
(7) Recent improvements in therapy and cryopreservation
make pregnancy possible for more people than in past years.
(8) Like all other diseases, infertility and its treatments
should be covered by health insurance.
(9) A 2017 national survey of employer-sponsored health
plans found that 44 percent of employers with at least 500
employees did not cover infertility services, and 25 percent of
companies with 20,000 or more employees did not cover
infertility services.
(10) Coverage for infertility services under State Medicaid
programs is limited. The Medicaid programs of only 5 States
provide diagnostic testing for women and men in all of their
program eligibility pathways; the Medicaid program of only one
State provides coverage for certain medications for women
experiencing infertility; and no State Medicaid programs cover
intrauterine insemination or in vitro fertilization.
(11) States that do not require private insurance coverage
of assisted reproductive technology have higher rates of
multiple births.
(12) The ability to have a family should not be denied to
anyone on account of a lack of insurance coverage for medically
necessary treatment.
SEC. 3. STANDARDS RELATING TO BENEFITS FOR TREATMENT OF INFERTILITY AND
PREVENTION OF IATROGENIC INFERTILITY.
(a) In General.--Part A of title XXVII of the Public Health Service
Act (42 U.S.C. 300gg et seq.) is amended by inserting after section
2728 the following:
``SEC. 2729A. STANDARDS RELATING TO BENEFITS FOR TREATMENT OF
INFERTILITY AND PREVENTION OF IATROGENIC INFERTILITY.
``(a) In General.--A group health plan or a health insurance issuer
offering group or individual health insurance coverage shall ensure
that such plan or coverage provides coverage for--
``(1) the treatment of infertility, including
nonexperimental assisted reproductive technology 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.
``(b) Definitions.--In this section:
``(1) the term `assisted reproductive technology' means
treatments or procedures that involve the handling of human
egg, sperm, and embryo outside of the body with the intent of
facilitating a pregnancy, including in vitro fertilization,
egg, embryo, or sperm cryopreservation, egg or embryo donation,
and gestational surrogacy;
``(2) the term `infertility' means a disease, characterized
by the failure to establish a clinical pregnancy--
``(A) after 12 months of regular, unprotected
sexual intercourse; or
``(B) due to a person's incapacity for reproduction
either as an individual or with his or her partner,
which may be determined after a period of less than 12
months of regular, unprotected sexual intercourse, or
based on medical, sexual and reproductive history, age,
physical findings, or diagnostic testing; and
``(3) the term `iatrogenic infertility' means an impairment
of fertility due to surgery, radiation, chemotherapy, or other
medical treatment.
``(c) Required Coverage.--
``(1) Coverage for infertility.--Subject to paragraph (3),
a group health plan and a health insurance issuer offering
group or individual health insurance coverage that includes
coverage for obstetrical services shall provide coverage for
treatment of infertility determined appropriate by the treating
physician, including, as appropriate, ovulation induction, egg
retrieval, sperm retrieval, artificial insemination, in vitro
fertilization, genetic screening, intracytoplasmic sperm
injection, and any other non-experimental treatment, as
determined by the Secretary in consultation with appropriate
professional and patient organizations such as the American
Society for Reproductive Medicine, RESOLVE: The National
Infertility Association, and the American College of
Obstetricians and Gynecologists.
``(2) Coverage for iatrogenic infertility.--A group health
plan and a health insurance issuer offering group or individual
health insurance coverage shall provide coverage of fertility
preservation services for individuals who undergo medically
necessary treatment that may cause iatrogenic infertility, as
determined by the treating physician, including
cryopreservation of gametes and other procedures, as determined
by the Secretary, consistent with established medical practices
and professional guidelines published by professional medical
organizations, including the American Society of Clinical
Oncology and the American Society for Reproductive Medicine.
``(3) Limitation on coverage of assisted reproductive
technology.--A group health plan and a health insurance issuer
offering group or individual health insurance coverage shall
provide coverage for assisted reproductive technology as
required under paragraph (1) if--
``(A) the individual is unable to bring a pregnancy
to a live birth through minimally invasive infertility
treatments, as determined appropriate by the treating
physician, with consideration given to participant's or
beneficiary's specific diagnoses or condition for which
coverage is available under the plan or coverage; and
``(B) the treatment is performed at a medical
facility that--
``(i) conforms to the standards of the
American Society for Reproductive Medicine and
the Society for Assisted Reproductive
Technology; and
``(ii) is in compliance with any standards
set by an appropriate Federal agency.
``(d) Limitation.--Cost-sharing, including deductibles and
coinsurance, or other limitations for infertility and services to
prevent iatrogenic infertility may not be imposed with respect to the
services required to be covered under subsection (c) to the extent that
such cost-sharing exceeds the cost-sharing applied to similar services
under the group health plan or health insurance coverage or such other
limitations are different from limitations imposed with respect to such
similar services.
``(e) Prohibitions.--A group health plan and a health insurance
issuer offering group or individual health insurance coverage may not--
``(1) provide incentives (monetary or otherwise) to a
participant or beneficiary to encourage such participant or
beneficiary not to be provided infertility treatments or
fertility preservation services to which such participant or
beneficiary is entitled under this section or to providers to
induce such providers not to provide such treatments to
qualified participants or beneficiaries;
``(2) prohibit a provider from discussing with a
participant or beneficiary infertility treatments or fertility
preservation technology or medical treatment options relating
to this section; or
``(3) penalize or otherwise reduce or limit the
reimbursement of a provider because such provider provided
infertility treatments or fertility preservation services to a
qualified participant or beneficiary in accordance with this
section.
``(f) Rule of Construction.--Nothing in this section shall be
construed to require a participant or beneficiary to undergo
infertility treatments or fertility preservation services.
``(g) Notice.--A group health plan and a health insurance issuer
offering group or individual health insurance coverage shall provide
notice to each participant and beneficiary under such plan regarding
the coverage required by this section in accordance with regulations
promulgated by the Secretary. Such notice shall be in writing and
prominently positioned in any literature or correspondence made
available or distributed by the plan or issuer and shall be
transmitted--
``(1) in the next mailing made by the plan or issuer to the
participant or beneficiary;
``(2) as part of any yearly informational packet sent to
the participant or beneficiary; or
``(3) not later than January 1, 2020,
whichever is earlier.
``(h) Level and Type of Reimbursements.--Nothing in this section
shall be construed to prevent a group health plan or a health insurance
issuer offering group or individual health insurance coverage from
negotiating the level and type of reimbursement with a provider for
care provided in accordance with this section.''.
(b) Conforming Amendment.--Section 2724(c) of the Public Health
Service Act (42 U.S.C. 300gg-23(c)) is amended by striking ``section
2704'' and inserting ``sections 2704 and 2708''.
(c) Effective Dates.--
(1) In general.--The amendments made by subsections (a) and
(b) shall apply for plan years beginning on or after the date
that is 6 months after the date of enactment of this Act.
(2) Collective bargaining exception.--
(A) In general.--In the case of a group health plan
maintained pursuant to one or more collective
bargaining agreements between employee representatives
and one or more employers ratified before the date of
enactment of this Act, the amendments made by
subsection (a) shall not apply to plan years beginning
before the later of--
(i) the date on which the last collective
bargaining agreements relating to the plan
terminates (determined without regard to any
extension thereof agreed to after the date of
enactment of this Act), or
(ii) the date occurring 6 months after the
date of the enactment of this Act.
(B) Clarification.--For purposes of subparagraph
(A), any plan amendment made pursuant to a collective
bargaining agreement relating to the plan which amends
the plan solely to conform to any requirement added by
subsection (a) shall not be treated as a termination of
such collective bargaining agreement.
SEC. 4. FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM.
(a) In General.--Section 8902 of title 5, United States Code, is
amended by adding at the end the following:
``(p) Coverage for Diagnosis and Treatment of Infertility and
Prevention of Iatrogenic Infertility.--
``(1) Definitions.--In this subsection, the terms
`infertility' and `iatrogenic infertility' have the meanings
given those terms in section 2729A of the Public Health Service
Act.
``(2) Required coverage.--A contract under this chapter
shall provide, in a manner consistent with section 2729A of the
Public Health Service Act--
``(A) coverage for the diagnosis and treatment of
infertility, including nonexperimental assisted
reproductive technology procedures, if such contract
covers obstetrical benefits; and
``(B) coverage for standard fertility preservation
services when a medically necessary treatment may
directly or indirectly cause iatrogenic infertility.
``(3) Cost.--Coverage for the diagnosis or treatment of
infertility and fertility preservation services under a health
benefits plan described in section 8903 or 8903a may not be
subject to any copayment or deductible greater than the
copayment or deductible, respectively, applicable to
obstetrical benefits under the plan.
``(4) Preemption.--Subsection (m)(1) shall not, with
respect to a contract under this chapter, prevent the inclusion
of any terms that, under paragraph (2) of this subsection, are
required by reason of section 2729A of the Public Health
Service Act.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply with respect to any contract entered into or renewed for a
contract year beginning on or after the date that is 180 days after the
date of enactment of this Act, and any health benefits plan offered
under such a contract.
SEC. 5. BENEFITS FOR TREATMENT OF INFERTILITY AND PREVENTION OF
IATROGENIC INFERTILITY UNDER THE TRICARE PROGRAM.
(a) In General.--Chapter 55 of title 10, United States Code, is
amended by adding at the end the following new section:
``Sec. 1110c. Obstetrical and infertility benefits
``(a) In General.--Any health care plan under this chapter shall
provide, in a manner consistent with section 2729A of the Public Health
Service Act--
``(1) coverage for the diagnosis and treatment of
infertility, including nonexperimental assisted reproductive
technology procedures, if such plan covers obstetrical
benefits; and
``(2) coverage for standard fertility preservation services
when a medically necessary treatment may directly or indirectly
cause iatrogenic infertility.
``(b) Copayment.--The Secretary of Defense shall establish cost-
sharing requirements for the coverage of diagnosis and treatment of
infertility and fertility preservation services described in subsection
(a) that are consistent with the cost-sharing requirements applicable
to health plans and health insurance coverage under section 2729A(d) of
the Public Health Service Act.
``(c) Regulations.--The Secretary of Defense shall prescribe any
regulations necessary to carry out this section.
``(d) Definitions.--In this section, the terms `infertility' and
`iatrogenic infertility' have the meanings given those terms in section
2729A of the Public Health Service Act.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 55 of such title is amended by adding at the end the following
new item:
``1110c. Obstetrical and infertility benefits.''.
SEC. 6. TREATMENT OF INFERTILITY AND PREVENTION OF IATROGENIC
INFERTILITY FOR VETERANS AND SPOUSES OR PARTNERS OF
VETERANS.
(a) In General.--Subchapter II of chapter 17 of title 38, United
States Code, is amended by adding at the end the following new section:
``Sec. 1720J. Infertility treatment for veterans and spouses or
partners of veterans.
``(a) In General.--The Secretary shall furnish treatment for
infertility and fertility preservation services, including through the
use of assisted reproductive technology, to a veteran or a spouse or
partner of a veteran if the veteran, and the spouse or partner of the
veteran, as applicable, apply jointly for such treatment and counseling
through a process prescribed by the Secretary for purposes of this
section.
``(b) Infertility Defined.--In this section, the terms
`infertility' and `iatrogenic infertility' have the meanings given
those terms in section 2729A of the Public Health Service Act.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 17 of such title is amended by inserting after the item
relating to section 1720I the following new item:
``1720J. Infertility treatment for veterans and spouses or partners of
veterans.''.
(c) Regulations.--Not later than 18 months after the date of the
enactment of this Act, the Secretary of Veterans Affairs shall
prescribe regulations to carry out section 1720J of title 38, United
States Code, as added by subsection (a).
SEC. 7. REQUIREMENT FOR STATE MEDICAID PLANS TO PROVIDE MEDICAL
ASSISTANCE FOR TREATMENT OF INFERTILITY AND PREVENTION OF
IATROGENIC INFERTILITY.
(a) In General.--Section 1905 of the Social Security Act (42 U.S.C.
1396d) is amended--
(1) in subsection (a)(4)--
(A) by striking ``; and (D)'' and inserting ``;
(D)''; and
(B) by inserting before the semicolon at the end
the following: ``; and (E) services and supplies to
treat infertility and prevent iatrogenic infertility
(as such terms are defined in section 2729A(b) of the
Public Health Service Act) in accordance with
subsection (ff)''; and
(2) by adding at the end the following new subsection:
``(ff) Requirements for Coverage of Infertility Treatment and
Prevention of Iatrogenic Infertility.--For purposes of subsection
(a)(4)(E), a State shall ensure that the medical assistance provided
under the State plan (or waiver of such plan) for treatment of
infertility and fertility preservation services complies with the
requirements and limitations of section 2729A(c) of the Public Health
Service Act in the same manner as such requirements and limitations
apply to health insurance coverage offered by a group health plan or
health insurance issuer.''.
(b) No Cost Sharing for Infertility Treatment.--
(1) In general.--Subsections (a)(2)(D) and (b)(2)(D) of
section 1916 of the Social Security Act (42 U.S.C.
1396o(a)(2)(D)) are amended by inserting ``, services and
supplies to treat infertility and provide fertility
preservation services described in section 1905(a)(4)(E)''
before ``, or'' each place it appears.
(2) Application to alternative cost sharing.--Section
1916A(b)(3)(B)(vii) of the Social Security Act (42 U.S.C.
1396o-1(b)(3)(B)(vii)) is amended by inserting `` and services
and supplies to treat infertility and provide fertility
preservation described in section 1905(a)(4)(E)'' before the
period.
(c) Presumptive Eligibility for Infertility Treatment.--Section
1920C of the Social Security Act (42 U.S.C. 1396r-1c) is amended--
(1) in the section heading, by inserting ``and infertility
treatment'' after ``family planning services'';
(2) in subsection (a)--
(A) by striking ``State plan'' and inserting ``A
State plan'';
(B) by striking ``1905(a)(4)(C)'' and inserting
``section 1905(a)(4)(C), services and supplies to treat
infertility and prevent iatrogenic infertility
described in section 1905(a)(4)(E),''; and
(C) by inserting ``or in conjunction with an
infertility treatment service in an infertility
treatment setting'' before the period.
(d) Inclusion in Benchmark Coverage.--Section 1937(b) of the Social
Security Act (42 U.S.C. 1396u-7(b)) is amended by adding at the end the
following new paragraph:
``(8) Coverage of infertility treatment and prevention of
iatrogenic infertility.--Notwithstanding the previous
provisions of this section, a State may not provide for medical
assistance through enrollment of an individual with benchmark
coverage or benchmark-equivalent coverage under this section
unless such coverage includes medical assistance for services
and supplies to treat infertility and provide fertility
preservation described in section 1905(a)(4)(E) in accordance
with such section.''.
(e) Effective Date.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by this section shall take effect on October 1,
2020.
(2) Delay permitted if state legislation required.--In the
case of a State plan approved under title XIX of the Social
Security Act which the Secretary of Health and Human Services
determines requires State legislation (other than legislation
appropriating funds) in order for the plan to meet the
additional requirement imposed by this section, the State plan
shall not be regarded as failing to comply with the
requirements of such title solely on the basis of the failure
of the plan to meet such additional requirement before the
first day of the first calendar quarter beginning after the
close of the first regular session of the State legislature
that ends after the 1-year period beginning with the date of
the enactment of this section. For purposes of the preceding
sentence, in the case of a State that has a 2-year legislative
session, each year of the session is deemed to be a separate
regular session of the State legislature.
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