Fertility Insurance Increase Hinges on Courts, State Mandates

Aug 14, 2023

Fertility treatment coverage is making its way to the desks of state lawmakers considering insurance mandates and to the courts as more employers advocate for protection of the expensive treatment.

Ranging from IVFs, donor eggs, and surrogacies to medications, fertility care can cost thousands of dollars for people who want to begin or add to a family. Yet more employers and lawmakers are considering adding it to mandated coverage.

A survey from the International Foundation of Employee Benefit Plans found that 40% of US organizations currently offer fertility benefits—an increase from 30% in 2020. Coverage under state mandates is also on the rise, as 21 states had passed fertility insurance coverage laws as of June 2023, according to RESOLVE, a national infertility association.

“There has been, over the last several years, an increased recognition that fertility benefits are valued by employees,” said Julie Stich, vice president of content at the IFEBP. “Certainly not all employees need them, but those that do value them would appreciate some support and financial assistance from their employer.”

The fight for coverage has also triggered a novel lawsuit that will decide if an employee living in one state is entitled to fertility coverage through their employer’s health insurance plan based in another state and following different mandates. The legal battle and growing state legislation open the door for how other health benefits will be interpreted, some attorneys say.

The absence of a federal law requiring fertility insurance coverage leaves the benefits up for interpretation by employers and states.

A New Hampshire resident faced this controversy when an insurer denied coverage for their fertility treatment. The employee received coverage through their Tennessee-based employer, and unlike New Hampshire, Tennessee does not have a fertility insurance state mandate.

In Blue Cross Blue Shield of Tennessee, Inc. v. Nicolopoulos, BCBST sued New Hampshire insurance regulators, saying that complying with the state’s fertility insurance mandate would violate its fiduciary duties under the Employee Retirement Income Security Act because, under ERISA, it’s required to interpret its health plan in accordance with Tennessee law.

A judge in late June disagreed with BCBST, saying when a national health plan enters a local market, “it is incumbent on the national plan to tailor itself to the local market’s laws.” The judge, who intends to grant summary judgment in favor of New Hampshire, also added that ERISA “preserves the several States’ authority to regulate insurers doing business in their state.”

The case “lays out the roadmap for anyone seeking to enforce an individual state’s fertility treatment mandate while avoiding the ERISA preemption potholes along the way,” said Richard Collins, partner at Arnall Golden Gregory LLP.

Collins said it’s possible BCBST could appeal to the Sixth Circuit if the district court judge decides the insurer has to comply with New Hampshire’s mandate.

Molly O’Brien, attorney at the International Fertility Law Group, said the “the residency of the insured should not matter,” agreeing with the court’s current view that the national health plan should extend to the local market, and that no employee should be denied coverage.

Some attorneys said the lawsuit could influence how other emerging employee benefits like chiropractic care or chemotherapy wigs will be interpreted by companies and states, especially as insurance plans wrestle with challenges of a growing remote workforce.

Of the 21 states with mandated coverage, 14 of the laws include IVF coverage. Fifteen states have fertility preservation laws for iatrogenic infertility, or medically induced infertility caused by a medical procedure such as chemotherapy, according to RESOLVE. The cost of treatments varies, but can be thousands of dollars. One IVF cycle costs around $25,000 with medication, according to a report from the Kaiser Family Foundation.

States with a mandate-to-cover law require health insurance companies provide coverage of infertility treatment as a benefit included in every policy. The policy premium includes cost of infertility treatment coverage.

A mandate-to-offer law, on the other hand, requires health insurance companies make available for purchase a policy that offers coverage of infertility treatment, but does not require employers to provide coverage.

In some states, including influential California, insurance providers are fighting mandated fertility coverage. The bill, SB 729, sits in the state Assembly after passing the Senate, but many critics argue the plan will increase the cost of coverage for small business owners or employers who can’t afford to self-insure.

The District of Columbia recently passed the Expanding Access to Fertility Treatment Amendment Act, but fertility coverage bills are stalled in other states, like Oregon and North Dakota, where proposed bills have yet to move forward after multiple attempts.

Meanwhile, big tech companies like Meta, Google, and Apple, and law firms like Reed Smith, Cooley LLP, and Weil, Gotshal & Manges are adding the pricey treatment to their insurance plans to help recruit employees.

Fertility doctor Said Daneshmand of the San Diego Fertility Center often tells his daughters when he gets home from work that he’s “been around the world,” after working with patients all day. He almost always starts his day meeting virtually with intended parents across the ocean—from the Middle East and Europe—and ends his day meeting patients on the East and West coasts of the US.

Daneshmand works with patients who often find treatment out of reach for them due to the costs or limited treatment options. Members from minority communities like those part of LGTBQ+ in particular most often face accessibility issues, he said.

“I don’t think that future parents should have to take significant loans out in order to have a family. I think we should be able to help them do that,” Daneshmand said.

Patients visiting the center for the first time have the opportunity to meet with an insurance specialist to review and navigate the benefits they may have from their insurance plans.

Daneshmand said he would like to see a mandate at the federal level, but the benefit would have to be considered essential under the Affordable Care Act. For now, coverage determination relies on employee benefits and state mandates.

“It’d be great if there was a federal mandate for coverage, but in the US, the health-care coverage is very disjointed. It depends on where you live and in terms of your access to care,” Daneshmand said.

To contact the reporter on this story: Nyah Phengsitthy at [email protected]

To contact the editors responsible for this story: Cheryl Saenz at [email protected]; Brent Bierman at [email protected]

AI-powered legal analytics, workflow tools and premium legal & business news.

Log in to keep reading or access research tools.