119 S2408 IS: Access to Fertility Treatment and Care Act U.S. Senate 2025-07-23 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
II119th CONGRESS1st SessionS. 2408IN THE SENATE OF THE UNITED STATESJuly 23, 2025Mr. Booker introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and PensionsA BILLTo require health insurance plans to provide coverage for fertility treatment, and for other purposes.
1.
Short title
This Act may be cited as the Access to Fertility Treatment and Care Act.
2.
Standards relating to benefits for fertility treatment
(a)
In general
(1)
PHSA
Part D of title XXVII of the Public Health Service Act (42 U.S.C. 300gg–111 et seq.) is amended by adding at the end the following:
2799A–11.
Standards relating to benefits for fertility treatment
(a)
In general
A group health plan or a health insurance issuer offering group or individual health insurance coverage shall provide coverage for fertility treatment, if such plan or coverage provides coverage for obstetrical services.(b)
Definition
In this section, the term fertility treatment includes the following: (1)Preservation of human oocytes, sperm, or embryos.(2)Artificial insemination, including intravaginal insemination, intracervical insemination, and intrauterine insemination.(3)Assisted reproductive technology, including in vitro fertilization and other treatments or procedures in which reproductive genetic material, such as oocytes, sperm, and embryos, are handled, when clinically appropriate.(4)Genetic testing of embryos.(5)Medications prescribed or obtained over-the-counter, as indicated for fertility.(6)Gamete donation.(7)Such other information, referrals, treatments, procedures, medications, laboratory testing, technologies, and services relating to fertility as the Secretary determines appropriate. (c)
Required coverage
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 fertility treatment determined appropriate by the health care provider, regardless of whether the participant, beneficiary, or enrollee receiving such treatment has been diagnosed with infertility as defined by the American Society for Reproductive Medicine, if the treatment is performed at, or prescribed by, a medical facility that is in compliance with relevant standards set by an appropriate Federal agency.(d)
Limitation
Cost-sharing, including deductibles and coinsurance, or other limitations for fertility treatment 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 other medical services under the group health plan or health insurance coverage or such other limitations are different from limitations imposed with respect to such medical services, except where such limitation is more favorable with respect to fertility treatment. The Secretary shall promulgate interim final regulations to carry out this subsection, notwithstanding the notice and comment requirements of section 553 of title 5, United States Code. (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, beneficiary, or enrollee to encourage such participant, beneficiary, or enrollee not to seek or obtain fertility treatment to which such participant, beneficiary, or enrollee is entitled under this section or to providers to induce such providers not to provide medically appropriate fertility treatments to participants, beneficiaries, or enrollees;(2)prohibit a provider from discussing with a participant, beneficiary, or enrollee fertility treatment relating to this section; (3)penalize or otherwise reduce or limit the reimbursement of a provider because such provider provided fertility treatment to a qualified participant, beneficiary, or enrollee in accordance with this section; or(4)on the ground prohibited under title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, section 504 of the Rehabilitation Act of 1973, or section 1557 of the Patient Protection and Affordable Care Act, exclude any individual from coverage in accordance with this section, or discriminate against any individual with respect to such coverage. (f)
Rule of construction
Nothing in this section shall be construed to require a participant, beneficiary, or enrollee to undergo fertility treatment.(g)
Notice
A group health plan and a health insurance issuer offering group or individual health insurance coverage shall provide notice to each participant, beneficiary, and enrollee under such plan or coverage 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)not later than the earlier of—(A)in the first standard mailing made by the plan or issuer to the participant, beneficiary, or enrollee following the effective date of such regulations;(B)as part of any yearly informational packet sent to the participant, beneficiary, or enrollee; or(C)January 1, 2027; (2)in the case of a participant, beneficiary, or enrollee not enrolled in the plan or coverage on the date of transmission under paragraph (1), upon initial enrollment of such participant, beneficiary, or enrollee; and(3)on an annual basis after the transmission under paragraph (1) or (2).(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.
.(2)
ERISA
(A)
In general
Subpart B of part 7 of subtitle B of title I of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1185 et seq.) is amended by adding at the end the following:
726.
Standards relating to benefits for fertility treatment
(a)
In general
A group health plan or a health insurance issuer offering group health insurance coverage shall provide coverage for fertility treatment, if such plan or coverage provides coverage for obstetrical services.(b)
Definition
In this section, the term fertility treatment includes the following:(1)Preservation of human oocytes, sperm, or embryos.(2)Artificial insemination, including intravaginal insemination, intracervical insemination, and intrauterine insemination.(3)Assisted reproductive technology, including in vitro fertilization and other treatments or procedures in which reproductive genetic material, such as oocytes, sperm, and embryos, are handled, when clinically appropriate.(4)Genetic testing of embryos.(5)Medications prescribed or obtained over-the-counter, as indicated for fertility.(6)Gamete donation.(7)Such other information, referrals, treatments, procedures, medications, laboratory testing, technologies, and services relating to fertility as the Secretary of Health and Human Services determines appropriate. (c)
Required coverage
A group health plan and a health insurance issuer offering group health insurance coverage that includes coverage for obstetrical services shall provide coverage for fertility treatment determined appropriate by the health care provider, regardless of whether the participant or beneficiary receiving such treatment has been diagnosed with infertility as defined by the American Society for Reproductive Medicine, if the treatment is performed at, or prescribed by, a medical facility that is in compliance with relevant standards set by an appropriate Federal agency.(d)
Limitation
Cost-sharing, including deductibles and coinsurance, or other limitations for fertility treatment 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 other medical services under the group health plan or health insurance coverage or such other limitations are different from limitations imposed with respect to such medical services, except where such limitation is more favorable with respect to fertility treatment. The Secretary shall promulgate interim final regulations to carry out this subsection, notwithstanding the notice and comment requirements of section 553 of title 5, United States Code.(e)
Prohibitions
A group health plan and a health insurance issuer offering group health insurance coverage may not—(1)provide incentives (monetary or otherwise) to a participant or beneficiary to encourage such participant or beneficiary not to seek or obtain fertility treatment to which such participant or beneficiary is entitled under this section or to providers to induce such providers not to provide medically appropriate fertility treatments to participants or beneficiaries;(2)prohibit a provider from discussing with a participant or beneficiary fertility treatment relating to this section; (3)penalize or otherwise reduce or limit the reimbursement of a provider because such provider provided fertility treatment to a qualified participant or beneficiary in accordance with this section; or(4)on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or section 1557 of the Patient Protection and Affordable Care Act (42 U.S.C. 18116), exclude any individual from coverage in accordance with this section, or discriminate against any individual with respect to such coverage.(f)
Rule of construction
Nothing in this section shall be construed to require a participant or beneficiary to undergo fertility treatment.(g)
Notice
A group health plan and a health insurance issuer offering group health insurance coverage shall provide notice to each participant and beneficiary under such plan or coverage 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)not later than the earlier of—(A)in the first standard mailing made by the plan or issuer to the participant or beneficiary following the effective date of such regulations;(B)as part of any yearly informational packet sent to the participant or beneficiary; or(C)January 1, 2027; (2)in the case of a participant or beneficiary not enrolled in the plan or coverage on the date of transmission under paragraph (1), upon initial enrollment of such participant or beneficiary; and(3)on an annual basis after the transmission under paragraph (1) or (2).(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 health insurance coverage from negotiating the level and type of reimbursement with a provider for care provided in accordance with this section.
.(B)
Clerical amendment
The table of contents in section 1 of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.) is amended by inserting after the item relating to section 725 the following new item:Sec. 726. Standards relating to benefits for fertility treatment..(3)
IRC
(A)
In general
Subchapter B of chapter 100 of the Internal Revenue Code of 1986 is amended by adding at the end the following:
9826.
Standards relating to benefits for fertility treatment
(a)
In general
A group health plan shall provide coverage for fertility treatment, if such plan provides coverage for obstetrical services.(b)
Definition
In this section, the term fertility treatment includes the following:(1)Preservation of human oocytes, sperm, or embryos.(2)Artificial insemination, including intravaginal insemination, intracervical insemination, and intrauterine insemination.(3)Assisted reproductive technology, including in vitro fertilization and other treatments or procedures in which reproductive genetic material, such as oocytes, sperm, and embryos, are handled, when clinically appropriate.(4)Genetic testing of embryos.(5)Medications prescribed or obtained over-the-counter, as indicated for fertility.(6)Gamete donation.(7)Such other information, referrals, treatments, procedures, medications, laboratory testing, technologies, and services relating to fertility as the Secretary of Health and Human Services determines appropriate. (c)
Required coverage
A group health plan that includes coverage for obstetrical services shall provide coverage for fertility treatment determined appropriate by the health care provider, regardless of whether the participant or beneficiary receiving such treatment has been diagnosed with infertility as defined by the American Society for Reproductive Medicine, if the treatment is performed at, or prescribed by, a medical facility that is in compliance with relevant standards set by an appropriate Federal agency.(d)
Limitation
Cost-sharing, including deductibles and coinsurance, or other limitations for fertility treatment 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 other medical services under the group health plan or health insurance coverage or such other limitations are different from limitations imposed with respect to such medical services, except where such limitation is more favorable with respect to fertility treatment. The Secretary shall promulgate interim final regulations to carry out this subsection, notwithstanding the notice and comment requirements of section 553 of title 5, United States Code.(e)
Prohibitions
A group health plan may not—(1)provide incentives (monetary or otherwise) to a participant or beneficiary to encourage such participant or beneficiary not to seek or obtain fertility treatment to which such participant or beneficiary is entitled under this section or to providers to induce such providers not to provide medically appropriate fertility treatments to participants or beneficiaries;(2)prohibit a provider from discussing with a participant or beneficiary fertility treatment relating to this section; (3)penalize or otherwise reduce or limit the reimbursement of a provider because such provider provided fertility treatment to a qualified participant or beneficiary in accordance with this section; or(4)on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or section 1557 of the Patient Protection and Affordable Care Act (42 U.S.C. 18116), exclude any individual from coverage in accordance with this section, or discriminate against any individual with respect to such coverage.(f)
Rule of construction
Nothing in this section shall be construed to require a participant or beneficiary to undergo fertility treatment.(g)
Notice
A group health plan 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 and shall be transmitted—(1)not later than the earlier of—(A)in the first standard mailing made by the plan to the participant or beneficiary following the effective date of such regulations;(B)as part of any yearly informational packet sent to the participant or beneficiary; or(C)January 1, 2027; (2)in the case of a participant or beneficiary not enrolled in the plan on the date of transmission under paragraph (1), upon initial enrollment of such participant or beneficiary; and(3)on an annual basis after the transmission under paragraph (1) or (2).(h)
Level and type of reimbursements
Nothing in this section shall be construed to prevent a group health plan from negotiating the level and type of reimbursement with a provider for care provided in accordance with this section.
. (B)
Clerical amendment
The table of sections for subchapter B of chapter 100 of the Internal Revenue Code of 1986 is amended by adding at the end the following new item: Sec. 9826. Standards relating to benefits for fertility treatment..(b)
Conforming amendments
(1)
PHSA
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 2799A–11.(2)
ERISA
Section 731(c) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1191(c)) is amended by striking section 711 and inserting sections 711 and 726.(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.
3.
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:(q)(1)In this subsection, the term fertility treatment has the meaning given the term in section 2799A–11(b) of the Public Health Service Act.(2)A contract under this chapter shall provide, in a manner consistent with section 2799A–11 of the Public Health Service Act, coverage for fertility treatment, if that contract covers obstetrical benefits.(3)Coverage for fertility treatment 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)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 2799A–11 of the Public Health Service Act..(b)
Effective date
The amendment made by subsection (a) shall apply with respect to— (1)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 (2)any health benefits plan offered under a contract described in paragraph (1).
4.
Benefits for fertility treatment 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:
1110c.
Obstetrical and fertility benefits
(a)
In general
Any health care plan under this chapter shall provide, in a manner consistent with section 2799A–11 of the Public Health Service Act, coverage for fertility treatment, if such plan covers obstetrical benefits.(b)
Copayment
The Secretary of Defense shall establish cost-sharing requirements for the coverage of fertility treatment that are consistent with the cost-sharing requirements applicable to health plans and health insurance coverage under section 2799A–11(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 term fertility treatment has the meaning given the term in section 2799A–11(b) 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 fertility benefits..
5.
Fertility treatment 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:
1720M.
Fertility treatment for veterans and spouses or partners of veterans
(a)
In general
The Secretary shall furnish fertility treatment services 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 fertility treatment through a process prescribed by the Secretary for purposes of this section.(b)
Definitions
In this section, the term fertility treatment has the meaning given the term in section 2799A–11(b) 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 1720L the following new item:1720M. Fertility 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 1720M of title 38, United States Code, as added by subsection (a).
6.
Requirement for State Medicaid plans to provide medical assistance for fertility treatment
(a)
In general
Section 1905 of the Social Security Act (42 U.S.C. 1396d) is amended—(1)in subsection (a)(4)(C), by inserting (which shall include fertility treatment provided in accordance with subsection (kk)) after family planning services and supplies; and(2)by adding at the end the following new subsection:(kk)
Requirements for coverage of fertility treatment
For purposes of subsection (a)(4)(C), a State shall ensure that the medical assistance provided under the State plan (or waiver of such plan) for fertility treatment complies with the requirements of section 2799A–11(b) 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)
Technical amendment
Section 1903(a)(5) of the Social Security Act (42 U.S.C. 1396b(a)(5)) is amended by inserting described in section 1905(a)(4)(C) after family planning services and supplies.(c)
Effective date
(1)
In general
Except as provided in paragraph (2), the amendments made by this section shall take effect on October 1, 2026.(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.
7.
Medicare coverage of fertility treatment
(a)
Coverage
Section 1861(s)(2) of the Social Security Act (42 U.S.C. 1395x(s)(2)) is amended—(1)in subparagraph (JJ), by inserting and after the semicolon at the end; and(2)by adding at the end the following new subparagraph:(KK)fertility treatment (as defined in section 2799A–11(b) of the Public Health Service Act);.(b)
Payment and waiver of coinsurance
Section 1833(a)(1) of the Social Security Act (42 U.S.C. 1395l(a)(1)) is amended—(1)by striking and before (HH); and(2)by inserting before the semicolon at the end the following: , and (II) with respect to fertility treatment (as described in section 1861(s)(2)(KK)), the amount paid shall be equal to 100 percent of the lesser of the actual charge for the treatment or the amount determined under the payment basis determined under section 1848.(c)
Waiver of application of deductible
The first sentence of section 1833(b) of the Social Security Act (42 U.S.C. 1395l(b)) is amended—(1)by striking , and (13) and inserting (13); and(2)by striking 1861(n).. and inserting 1861(n), and (14) such deductible shall not apply with respect to fertility treatment (as described in section 1861(s)(2)(KK)).. (d)
Payment under physician fee schedule
Section 1848(j)(3) of the Social Security Act (42 U.S.C. 1395w–4(j)(3)) is amended by inserting (2)(KK), after risk assessment),.(e)
Conforming amendment regarding coverage
Section 1862(a)(1)(A) of the Social Security Act (42 U.S.C. 1395y(a)(1)(A)) is amended—(1)by striking or additional and inserting , additional; and(2)by inserting , or fertility treatment (as described in section 1861(s)(2)(KK)) after 1861(ddd)(1)). (f)
Effective date
The amendments made by this section shall apply to services furnished on or after January 1, 2026.