I 

108TH CONGRESS 

1ST SESSION H. R. 3014

To amend the Public Health Service Act, the Employee Retirement Income 

Security Act of 1974, chapter 89 of title 5, United States Code, and 

title 10, United States Code, to require coverage for the treatment 

of infertility. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 4, 2003

Mr. WEINER (for himself, Mr. THOMPSON of Mississippi, Ms. BERKLEY, and 

Mrs. MALONEY) introduced the following bill; which was referred to the 

Committee on Energy and Commerce, and in addition to the Committees 

on Education and the Workforce, Government Reform, and Armed Services, for a period to be subsequently determined by the Speaker, in each 

case for consideration of such provisions as fall within the jurisdiction of 

the committee concerned 

A BILL

To amend the Public Health Service Act, the Employee Retirement Income Security Act of 1974, chapter 89 of 

title 5, United States Code, and title 10, United States 

Code, to require coverage for the treatment of infertility.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; FINDINGS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Family Building Act of 2003’’. 
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1 (b) FINDINGS.—Congress makes the following find2 ings: 

3 (1) Infertility is a disease affecting more than 

4 6,000,000 American women and men, about 10 per5 cent of the reproductive age population. 

6 (2) Recent improvements in therapy make preg7 nancy possible for more couples than in past years. 

8 (3) The majority of group health plans do not 

9 provide coverage for infertility therapy. 

10 (4) A fundamental part of the human experi11 ence is fulfilling the desire to reproduce. 

12 SEC. 2. STANDARDS RELATING TO BENEFITS FOR TREAT13 MENT OF INFERTILITY. 

14 (a) GROUP HEALTH PLANS.—

15 (1) PUBLIC HEALTH SERVICE ACT AMEND16 MENT.—(A) Subpart 2 of part A of title XXVII of 

17 the Public Health Service Act is amended by adding 

18 at the end the following new section: 

19 ‘‘SEC. 2707. STANDARDS RELATING TO BENEFITS FOR 

20 TREATMENT OF INFERTILITY. 

21 ‘‘(a) REQUIREMENTS FOR COVERAGE OF TREAT22 MENT OF INFERTILITY.—

23 ‘‘(1) IN GENERAL.—In a case in which a group 

24 health plan, and a health insurance issuer offering 

25 group health insurance coverage provides coverage 
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1 for obstetrical services, such plan or issuer shall in2 clude (consistent with this section) coverage for 

3 treatment of infertility. 

4 ‘‘(2) INFERTILITY DEFINED.—For purposes of 

5 this section, the term ‘infertility’ means a disease or 

6 condition that results in the abnormal function of 

7 the reproductive system, which results in—

8 ‘‘(A) the inability to conceive after 1 year 

9 of unprotected intercourse, or 

10 ‘‘(B) the inability to carry a pregnancy to 

11 live birth. 

12 ‘‘(b) REQUIRED COVERAGE.—

13 ‘‘(1) IN GENERAL.—A group health plan, and a 

14 health insurance issuer offering group health insur15 ance coverage shall provide coverage for treatment 

16 of infertility deemed appropriate by a participant or 

17 beneficiary and the treating physician. Such treat18 ment shall include ovulation induction, artificial in19 semination, in vitro fertilization (IVF), gamete 

20 intrafallopian transfer (GIFT), zygote intrafallopian 

21 transfer (ZIFT), intracytoplasmic sperm injection 

22 (ICSI), and any other treatment provided it has 

23 been deemed as ‘non-experimental’ by the Secretary 

24 of Health and Human Services after consultation 

25 with appropriate professional and patient organiza-
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1 tions such as the American Society for Reproductive 

2 Medicine, RESOLVE, and the American College of 

3 Obstetricians and Gynecologists. 

4 ‘‘(2) LIMITATION ON COVERAGE OF ASSISTED

5 REPRODUCTIVE TECHNOLOGY.—

6 ‘‘(A) IN GENERAL.—In the case of assisted 

7 reproductive technology, coverage shall be pro8 vided if—

9 ‘‘(i) the participant or beneficiary has 

10 been unable to bring a pregnancy to a live 

11 birth through less costly medically appro12 priate infertility treatments for which cov13 erage is available under the insured’s pol14 icy, plan, or contract; 

15 ‘‘(ii) the participant or beneficiary has 

16 not undergone 4 complete oocyte retrievals, 

17 except that if a live birth follows a com18 pleted oocyte retrieval, then at least 2 

19 more completed oocyte retrievals shall be 

20 covered, with a lifetime cap of 6 retrievals; 

21 ‘‘(iii) the treatment is performed at a 

22 medical facility that—

23 ‘‘(I) conforms to the standards of 

24 the American Society for Reproductive 

25 Medicine; and 
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1 ‘‘(II) is in compliance with any 

2 standards set by an appropriate Fed3 eral agency. 

4 ‘‘(B) DEFINITION OF ASSISTED REPRO5 DUCTIVE TECHNOLOGY.—For purposes of this 

6 paragraph, the term ‘assisted reproductive tech7 nology’ includes all treatments or procedures 

8 that involve the handling of human egg and 

9 sperm for the purpose of helping a woman be10 come pregnant. Types of Assisted Reproductive 

11 Technology include in vitro fertilization, gamete 

12 intrafallopian transfer, zygote intrafallopian 

13 transfer, embryo cryopreservation, egg or em14 bryo donation, and surrogate birth. 

15 ‘‘(3) REVIEW BY THE SECRETARY OF HEALTH

16 AND HUMAN SERVICES.—Not later than 5 years 

17 after the date of enactment of the Family Building 

18 Act of 2003, the Secretary of Health and Human 

19 Services, in consultation with the American Society 

20 for Reproductive Medicine and RESOLVE: the Na21 tional Infertility Association, shall review the re22 quirements for treatment of infertility established 

23 under paragraphs (1) and (2). 

24 ‘‘(c) LIMITATION.—Deductibles, coinsurance, and 

25 other cost-sharing or other limitations for infertility ther-
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1 apy may not be imposed to the extent they exceed the 

2 deductibles, coinsurance, and limitations that are applied 

3 to similar services under the group health plan or health 

4 insurance coverage. 

5 ‘‘(d) PROHIBITIONS.—A group health plan, and a 

6 health insurance issuer offering group health insurance 

7 coverage in connection with a group health plan, may 

8 not—

9 ‘‘(1) deny to a participant or beneficiary eligi10 bility, or continued eligibility, to enroll or to renew 

11 coverage under the terms of the plan, solely for the 

12 purpose of avoiding the requirements of this section; 

13 ‘‘(2) provide incentives (monetary or otherwise) 

14 to a participant or beneficiary to encourage such 

15 participant or beneficiary not to be provided infer16 tility treatments to which they are entitled under 

17 this section or to providers to induce such providers 

18 not to provide such treatments to qualified partici19 pants or beneficiaries; 

20 ‘‘(3) prohibit a provider from discussing with a 

21 participant or beneficiary infertility treatment tech22 niques or medical treatment options relating to this 

23 section; or 

24 ‘‘(4) penalize or otherwise reduce or limit the 

25 reimbursement of a provider because such provider 
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1 provided infertility treatments to a qualified partici2 pant or beneficiary in accordance with this section. 

3 ‘‘(e) RULE OF CONSTRUCTION.—Nothing in this sec4 tion shall be construed to require a participant or bene5 ficiary to undergo infertility therapy. 

6 ‘‘(f) NOTICE.—A group health plan under this part 

7 shall comply with the notice requirement under section 

8 713(b) of the Employee Retirement Income Security Act 

9 of 1974 with respect to the requirements of this section 

10 as if such section applied to such plan. 

11 ‘‘(g) LEVEL AND TYPE OF REIMBURSEMENTS.—

12 Nothing in this section shall be construed to prevent a 

13 group health plan or a health insurance issuer offering 

14 group health insurance coverage from negotiating the level 

15 and type of reimbursement with a provider for care pro16 vided in accordance with this section. 

17 ‘‘(h) PREEMPTION.—The provisions of this section do 

18 not preempt State law relating to health insurance cov19 erage to the extent such State law provides greater bene20 fits with respect to infertility treatments or prevention.’’. 

21 (B) Section 2723(c) of such Act (42 U.S.C. 

22 300gg–23(c)) is amended by striking ‘‘section 2704’’ 

23 and inserting ‘‘sections 2704 and 2707’’. 

24 (2) ERISA AMENDMENT.—(A) Subpart B of 

25 part 7 of subtitle B of title I of the Employee Re-
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1 tirement Income Security Act of 1974 is amended by 

2 adding at the end the following new section: 

3 ‘‘SEC. 714. STANDARDS RELATING TO BENEFITS FOR 

4 TREATMENT OF INFERTILITY. 

5 ‘‘(a) IN GENERAL.—A group health plan and a health 

6 insurance issuer offering group health insurance coverage 

7 in connection with such a plan shall comply with the re8 quirements of section 2707 of the Public Health Service 

9 Act, and such requirements shall be deemed to be incor10 porated into this subsection. 

11 ‘‘(b) NOTICE.—A health insurance issuer offering 

12 health insurance coverage in connection with a group 

13 health plan shall comply with the notice requirement 

14 under section 713(b) with respect to the requirements re15 ferred to in subsection (a) as if such section applied to 

16 such issuer and such issuer were a group health plan.’’. 

17 (B) Section 732(a) of such Act (29 U.S.C. 

18 1191a(a)) is amended by striking ‘‘section 711’’ and 

19 inserting ‘‘sections 711 and 714’’. 

20 (C) The table of contents in section 1 of such 

21 Act is amended by inserting after the item relating 

22 to section 713 the following new item:

‘‘714. Standards relating to benefits for treatment of infertility.’’.

23 (b) INDIVIDUAL HEALTH INSURANCE.—(1) Part B 

24 of title XXVII of the Public Health Service Act is amend-
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1 ed by inserting after section 2752 the following new sec2 tion: 

3 ‘‘SEC. 2753. STANDARD RELATING TO BENEFITS FOR 

4 TREATMENT OF INFERTILITY. 

5 ‘‘(a) IN GENERAL.—The provisions of section 2707 

6 shall apply to health insurance coverage offered by a 

7 health insurance issuer in the individual market in the 

8 same manner as they apply to health insurance coverage 

9 offered by a health insurance issuer in connection with a 

10 group health plan in the small or large group market. 

11 ‘‘(b) NOTICE.—A health insurance issuer under this 

12 part shall comply with the notice requirement under sec13 tion 713(b) of the Employee Retirement Income Security 

14 Act of 1974 with respect to the requirements referred to 

15 in subsection (a) as if such section applied to such issuer 

16 and such issuer were a group health plan.’’. 

17 (2) Section 2762(b)(2) of such Act (42 U.S.C. 

18 300gg–62(b)(2)) is amended by striking ‘‘section 2751’’ 

19 and inserting ‘‘sections 2751 and 2753’’. 

20 (c) EFFECTIVE DATES.—

21 (1) GROUP HEALTH PLANS AND GROUP

22 HEALTH INSURANCE COVERAGE.—Subject to para23 graph (3), the amendments made by subsection (a) 

24 apply with respect to group health plans for plan 
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1 years beginning on or after the date occurring 6 

2 months after the date of the enactment of this Act. 

3 (2) INDIVIDUAL HEALTH INSURANCE COV4 ERAGE.—The amendments made by subsection (b) 

5 apply with respect to health insurance coverage of6 fered, sold, issued, renewed, in effect, or operated in 

7 the individual market on or after such date. 

8 (3) COLLECTIVE BARGAINING EXCEPTION.—In 

9 the case of a group health plan maintained pursuant 

10 to 1 or more collective bargaining agreements be11 tween employee representatives and 1 or more em12 ployers ratified before the date of enactment of this 

13 Act, the amendments made by subsection (a) shall 

14 not apply to plan years beginning before the later 

15 of—

16 (A) the date on which the last collective 

17 bargaining agreements relating to the plan ter18 minates (determined without regard to any ex19 tension thereof agreed to after the date of en20 actment of this Act), or 

21 (B) the date occurring 6 months after the 

22 date of the enactment of this Act. 

23 For purposes of subparagraph (A), any plan amend24 ment made pursuant to a collective bargaining 

25 agreement relating to the plan which amends the 
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1 plan solely to conform to any requirement added by 

2 subsection (a) shall not be treated as a termination 

3 of such collective bargaining agreement. 

4 SEC. 3. AMENDMENT TO TITLE 5, UNITED STATES CODE. 

5 (a) IN GENERAL.—Section 8902 of title 5, United 

6 States Code, is amended by adding at the end the fol7 lowing new subsection: 

8 ‘‘(p)(1) Each contract under this chapter which pro9 vides obstetrical benefits shall also provide (in a manner 

10 consistent with section 2707 of the Public Health Service 

11 Act) coverage for the diagnosis and treatment of infertility 

12 (as defined by such section). 

13 ‘‘(2) Subsection (m)(1) shall not, with respect to any 

14 contract under this chapter, prevent the inclusion of any 

15 terms which, under paragraph (1), are required by reason 

16 of section 2707(h) of the Public Health Service Act.’’. 

17 (b) EFFECTIVE DATE.—The amendment made by 

18 this section shall apply with respect to contracts entered 

19 into or renewed for contract years beginning at least 6 

20 months after the date of enactment of this Act. 

21 SEC. 4. DEFENSE HEALTH CARE PLANS. 

22 (a) IN GENERAL.—(1) Chapter 55 of title 10, United 

23 States Code, is amended by inserting after section 1099 

24 the following new section: 
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1 ‘‘§ 1099a. Health care plans: obstetrical and infertility 

2 benefits 

3 ‘‘(a) IN GENERAL.—Any health care plan under this 

4 chapter that provides obstetrical benefits shall also provide 

5 (in a manner consistent with section 2707 of the Public 

6 Health Service Act) coverage for the diagnosis and treat7 ment of infertility (as defined by such section). 

8 ‘‘(b) REGULATIONS.—The Secretary of Defense shall 

9 precribe any regulations necessary to carry out this sec10 tion.’’. 

11 (2) The table of sections at the beginning of such 

12 chapter is amended by adding at the end the following 

13 new item:

‘‘1099a. Health care plans: obstetrical and infertility benefits.’’.

14 (b) EFFECTIVE DATE.—The amendment made by 

15 this section shall apply with respect to contracts entered 

16 into or renewed for contract years beginning at least 6 

17 months after the date of enactment of this Act.

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