[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1258 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                S. 1258

To amend the Public Health Service Act, the Employee Retirement Income 
Security Act of 1974, and chapter 89 of title 5, United States Code, to 
           require coverage for the treatment of infertility.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 15, 2009

Mrs. Gillibrand introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
To amend the Public Health Service Act, the Employee Retirement Income 
Security Act of 1974, and chapter 89 of title 5, United States Code, to 
           require 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; FINDINGS.

    (a) Short Title.--This Act may be cited as the ``Family Building 
Act of 2009''.
    (b) Findings.--Congress makes the following findings:
            (1) Infertility is a disease affecting more than 6,000,000 
        American women and men, about 10 percent of the reproductive 
        age population.
            (2) Recent improvements in therapy make pregnancy possible 
        for more couples than in past years.
            (3) The majority of group health plans do not provide 
        coverage for infertility therapy.
            (4) A fundamental part of the human experience is 
        fulfilling the desire to reproduce.

SEC. 2. STANDARDS RELATING TO BENEFITS FOR TREATMENT OF INFERTILITY.

    (a) Group Health Plans.--
            (1) Public health service act amendment.--(A) Subpart 2 of 
        part A of title XXVII of the Public Health Service Act is 
        amended by adding at the end the following new section:

``SEC. 2708. STANDARDS RELATING TO BENEFITS FOR TREATMENT OF 
              INFERTILITY.

    ``(a) Requirements for Coverage of Treatment of Infertility.--
            ``(1) In general.--In a case in which a group health plan, 
        and a health insurance issuer offering group health insurance 
        coverage provides coverage for obstetrical services, such plan 
        or issuer shall include (consistent with this section) coverage 
        for treatment of infertility.
            ``(2) Infertility defined.--For purposes of this section, 
        the term `infertility' means a disease or condition that 
        results in the abnormal function of the reproductive system, 
        which results in--
                    ``(A) the inability to conceive after 1 year of 
                unprotected intercourse, or
                    ``(B) the inability to carry a pregnancy to live 
                birth.
    ``(b) Required Coverage.--
            ``(1) In general.--A group health plan, and a health 
        insurance issuer offering group health insurance coverage shall 
        provide coverage for treatment of infertility deemed 
        appropriate by a participant or beneficiary and the treating 
        physician. Such treatment shall include ovulation induction, 
        artificial insemination, in vitro fertilization (IVF), gamete 
        intrafallopian transfer (GIFT), zygote intrafallopian transfer 
        (ZIFT), intracytoplasmic sperm injection (ICSI), sperm 
        collection for fertility treatments, and any other treatment 
        provided it has been deemed as `non-experimental' by the 
        Secretary after consultation with appropriate professional and 
        patient organizations such as the American Society for 
        Reproductive Medicine, RESOLVE, and the American College of 
        Obstetricians and Gynecologists.
            ``(2) Limitation on coverage of assisted reproductive 
        technology.--
                    ``(A) In general.--In the case of assisted 
                reproductive technology, coverage shall be provided 
                if--
                            ``(i) the participant or beneficiary has 
                        been unable to bring a pregnancy to a live 
                        birth through less costly medically appropriate 
                        infertility treatments for which coverage is 
                        available under the insured's policy, plan, or 
                        contract;
                            ``(ii) the participant or beneficiary has 
                        not undergone 4 complete oocyte retrievals, 
                        except that if a live birth follows a completed 
                        oocyte retrieval, then at least 2 more 
                        completed oocyte retrievals shall be covered, 
                        with a lifetime cap of 6 retrievals; and
                            ``(iii) the treatment is performed at a 
                        medical facility that--
                                    ``(I) conforms to the standards of 
                                the American Society for Reproductive 
                                Medicine; and
                                    ``(II) is in compliance with any 
                                standards set by an appropriate Federal 
                                agency.
                    ``(B) Definition of assisted reproductive 
                technology.--For purposes of this paragraph, the term 
                `assisted reproductive technology' includes all 
                treatments or procedures that involve the handling of 
                human egg and sperm for the purpose of helping a woman 
                become pregnant. Types of assisted reproductive 
                technology include in vitro fertilization, gamete 
                intrafallopian transfer, zygote intrafallopian 
                transfer, embryo cryopreservation, egg or embryo 
                donation, and surrogate birth.
            ``(3) Review by the secretary.--Not later than 5 years 
        after the date of enactment of the Family Building Act of 2009, 
        the Secretary, in consultation with the American Society for 
        Reproductive Medicine and RESOLVE: the National Infertility 
        Association, shall review the requirements for treatment of 
        infertility established under paragraphs (1) and (2).
    ``(c) Limitation.--Deductibles, coinsurance, and other cost-sharing 
or other limitations for infertility therapy may not be imposed to the 
extent they exceed the deductibles, coinsurance, and limitations that 
are applied to similar services under the group health plan or health 
insurance coverage.
    ``(d) Prohibitions.--A group health plan, and a health insurance 
issuer offering group health insurance coverage in connection with a 
group health plan, may not--
            ``(1) deny to a participant or beneficiary eligibility, or 
        continued eligibility, to enroll or to renew coverage under the 
        terms of the plan, solely for the purpose of avoiding the 
        requirements of this section;
            ``(2) provide incentives (monetary or otherwise) to a 
        participant or beneficiary to encourage such participant or 
        beneficiary not to be provided infertility treatments to which 
        they are entitled under this section or to providers to induce 
        such providers not to provide such treatments to qualified 
        participants or beneficiaries;
            ``(3) prohibit a provider from discussing with a 
        participant or beneficiary infertility treatment techniques or 
        medical treatment options relating to this section; or
            ``(4) penalize or otherwise reduce or limit the 
        reimbursement of a provider because such provider provided 
        infertility treatments to a qualified participant or 
        beneficiary in accordance with this section.
    ``(e) Rule of Construction.--Nothing in this section shall be 
construed to require a participant or beneficiary to undergo 
infertility therapy.
    ``(f) Notice.--A group health plan under this part shall comply 
with the notice requirement under section 713(b) of the Employee 
Retirement Income Security Act of 1974 with respect to the requirements 
of this section as if such section applied to such plan.
    ``(g) 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.
    ``(h) Preemption.--The provisions of this section do not preempt 
State law relating to health insurance coverage to the extent such 
State law provides greater benefits with respect to infertility 
treatments or prevention.''.
            (B) Section 2723(c) of such Act (42 U.S.C. 300gg-23(c)) is 
        amended by striking ``section 2704'' and inserting ``sections 
        2704 and 2708''.
            (2) ERISA amendment.--(A) Subpart B of part 7 of subtitle B 
        of title I of the Employee Retirement Income Security Act of 
        1974 is amended by adding at the end the following new section:

``SEC. 715. STANDARDS RELATING TO BENEFITS FOR TREATMENT OF 
              INFERTILITY.

    ``(a) In General.--A group health plan and a health insurance 
issuer offering group health insurance coverage in connection with such 
a plan shall comply with the requirements of section 2708 of the Public 
Health Service Act, and such requirements shall be deemed to be 
incorporated into this subsection.
    ``(b) Notice.--A health insurance issuer offering health insurance 
coverage in connection with a group health plan shall comply with the 
notice requirement under section 713(b) with respect to the 
requirements referred to in subsection (a) as if such section applied 
to such issuer and such issuer were a group health plan.''.
            (B) Section 732(a) of such Act (29 U.S.C. 1191a(a)) is 
        amended by striking ``section 711'' and inserting ``sections 
        711 and 714''.
            (C) The table of contents in section 1 of such Act is 
        amended by inserting after the item relating to section 714 the 
        following new item:

``715. Standards relating to benefits for treatment of infertility.''.
    (b) Individual Health Insurance.--(1) Part B of title XXVII of the 
Public Health Service Act is amended by inserting after section 2753 
the following new section:

``SEC. 2754. STANDARD RELATING TO BENEFITS FOR TREATMENT OF 
              INFERTILITY.

    ``(a) In General.--The provisions of section 2708 shall apply to 
health insurance coverage offered by a health insurance issuer in the 
individual market in the same manner as they apply to health insurance 
coverage offered by a health insurance issuer in connection with a 
group health plan in the small or large group market.
    ``(b) Notice.--A health insurance issuer under this part shall 
comply with the notice requirement under section 713(b) of the Employee 
Retirement Income Security Act of 1974 with respect to the requirements 
referred to in subsection (a) as if such section applied to such issuer 
and such issuer were a group health plan.''.
    (2) Section 2762(b)(2) of such Act (42 U.S.C. 300gg-62(b)(2)) is 
amended by striking ``section 2751'' and inserting ``sections 2751 and 
2753''.
    (c) Effective Dates.--
            (1) Group health plans and group health insurance 
        coverage.--Subject to paragraph (3), the amendments made by 
        subsection (a) apply with respect to group health plans for 
        plan years beginning on or after the date occurring 6 months 
        after the date of the enactment of this Act.
            (2) Individual health insurance coverage.--The amendments 
        made by subsection (b) apply with respect to health insurance 
        coverage offered, sold, issued, renewed, in effect, or operated 
        in the individual market on or after such date.
            (3) Collective bargaining exception.--In the case of a 
        group health plan maintained pursuant to 1 or more collective 
        bargaining agreements between employee representatives and 1 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--
                    (A) 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
                    (B) the date occurring 6 months after the date of 
                the enactment of this Act.
        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. 3. AMENDMENT TO TITLE 5, UNITED STATES CODE.

    (a) In General.--Section 8902 of title 5, United States Code, is 
amended by adding at the end the following new subsection:
    ``(p)(1) Each contract under this chapter which provides 
obstetrical benefits shall also provide (in a manner consistent with 
section 2708 of the Public Health Service Act) coverage for the 
diagnosis and treatment of infertility (as defined by such section).
    ``(2) Subsection (m)(1) shall not, with respect to any contract 
under this chapter, prevent the inclusion of any terms which, under 
paragraph (1), are required by reason of section 2708(h) of the Public 
Health Service Act.''.
    (b) Effective Date.--The amendment made by this section shall apply 
with respect to contracts entered into or renewed for contract years 
beginning at least 6 months after the date of enactment of this Act.
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