[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2352 Introduced in Senate (IS)]

<DOC>






117th CONGRESS
  1st Session
                                S. 2352

 To require health insurance coverage for the treatment of infertility.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 15, 2021

Mr. Booker (for himself, Mr. Menendez, and Mrs. Gillibrand) 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 
2729 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, 2022,
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:
    ``(q)(1) 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) A contract under this chapter shall provide, in a manner 
consistent with section 2729A of the Public Health Service Act, 
coverage for--
            ``(A) the diagnosis and treatment of infertility, including 
        nonexperimental assisted reproductive technology procedures, if 
        that contract covers obstetrical benefits; and
            ``(B) standard fertility preservation services when a 
        medically necessary treatment may directly or indirectly cause 
        iatrogenic infertility.
    ``(3) 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) 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--
            (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).

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 `assisted 
reproductive technology', `iatrogenic infertility', and `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. 1720K. 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 through a 
process prescribed by the Secretary for purposes of this section.
    ``(b) Definitions.--In this section, the terms `assisted 
reproductive technology' and `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 
subchapter II of chapter 17 of such title is amended by inserting after 
the item relating to section 1720J the following new item:

``1720K. 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 1720K 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)'';
                    (B) by striking ``; and (E)'' and inserting ``; 
                (E)'';
                    (C) by striking ``; and (F)'' and inserting ``; 
                (F)''; and
                    (D) by inserting before the semicolon at the end 
                the following: ``; and (G) 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 (jj)''; and
            (2) by adding at the end the following new subsection:
    ``(jj) Requirements for Coverage of Infertility Treatment and 
Prevention of Iatrogenic Infertility.--For purposes of subsection 
(a)(4)(G), 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)(G)'' 
        after ``1905(a)(4)(C)'' 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)(G)'' 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)(G),''; 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:
            ``(9) 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)(G) 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, 
        2021.
            (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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