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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4445 Placed on Calendar Senate (PCS)]

<DOC>

                                                       Calendar No. 413
118th CONGRESS
  2d Session
                                S. 4445

    To protect and expand nationwide access to fertility treatment, 
                   including in vitro fertilization.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                              June 3, 2024

 Ms. Duckworth (for herself, Mrs. Murray, Mr. Booker, Mr. Schumer, Ms. 
Baldwin, Mr. Bennet, Mr. Blumenthal, Ms. Butler, Mr. Carper, Mr. Casey, 
Mr. Coons, Mr. Durbin, Mr. Fetterman, Mrs. Gillibrand, Ms. Hassan, Mr. 
   Heinrich, Mr. Hickenlooper, Ms. Hirono, Mr. Kaine, Mr. King, Ms. 
Klobuchar, Mr. Lujan, Mr. Markey, Mr. Merkley, Mr. Murphy, Mr. Padilla, 
Mr. Reed, Ms. Rosen, Mr. Sanders, Mr. Schatz, Ms. Smith, Ms. Stabenow, 
 Ms. Warren, Mr. Welch, Mr. Whitehouse, Mr. Wyden, Mr. Warner, and Mr. 
  Brown) introduced the following bill; which was read the first time

                              June 4, 2024

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL

 
    To protect and expand nationwide access to fertility treatment, 
                   including in vitro fertilization.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Right to IVF 
Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Severability.
                   TITLE I--ACCESS TO FAMILY BUILDING

Sec. 101. Short title.
Sec. 102. Purposes.
Sec. 103. Definitions.
Sec. 104. Fertility treatment rights.
Sec. 105. Applicability and preemption.
               TITLE II--VETERAN FAMILIES HEALTH SERVICES

Sec. 200. Short title.
  Subtitle A--Reproductive and Fertility Preservation Assistance for 
                   Members of the Uniformed Services

Sec. 201. Definitions.
Sec. 202. Provision of fertility treatment and counseling to certain 
                            members of the uniformed services and 
                            spouses, partners, and gestational 
                            surrogates of such members.
Sec. 203. Establishment of fertility preservation procedures after an 
                            injury or illness.
Sec. 204. Cryopreservation and storage of reproductive genetic material 
                            of members of the uniformed services on 
                            active duty.
Sec. 205. Assistance with and continuity of care regarding reproductive 
                            and fertility preservation services.
Sec. 206. Coordination between Department of Defense and Department of 
                            Veterans Affairs on furnishing of fertility 
                            treatment and counseling.
Sec. 207. Regulations.
            Subtitle B--Reproductive Assistance for Veterans

Sec. 211. Inclusion of fertility treatment and counseling under the 
                            definition of medical services in title 38.
Sec. 212. Fertility treatment and counseling for certain veterans and 
                            spouses, partners, and gestational 
                            surrogates of such veterans.
Sec. 213. Assistance with and continuity of care regarding reproductive 
                            and fertility preservation services.
Sec. 214. Coordination of reproduction and fertility research for 
                            veterans.
           TITLE III--ACCESS TO FERTILITY TREATMENT AND CARE

Sec. 301. Short title.
Sec. 302. Standards relating to benefits for fertility treatment.
Sec. 303. Requirement for State Medicaid plans to provide medical 
                            assistance for fertility treatment.
Sec. 304. Medicare coverage of fertility treatment.
                TITLE IV--FAMILY BUILDING FEHB FAIRNESS

Sec. 401. Short title.
Sec. 402. Fertility treatment benefits.

SEC. 2. SEVERABILITY.

    If any provision of this Act, or the application of such provision 
to any person, entity, government, or circumstance is held to be 
unconstitutional, the remainder of this Act, or the application of such 
provision to all other persons, entities, governments, or circumstances 
shall not be affected thereby.

                   TITLE I--ACCESS TO FAMILY BUILDING

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Access to Family Building Act''.

SEC. 102. PURPOSES.

    The purposes of this title are as follows:
            (1) To permit patients to seek and receive fertility 
        treatment, including assisted reproductive technology services, 
        and to permit health care providers that choose to provide 
        fertility treatment, to provide such services without States 
        enacting harmful or unwarranted limitations or requirements 
        that single out the provision of assisted reproductive services 
        for restrictions that are not consistent with widely accepted 
        and evidence-based medical standards of care, and which do not 
        significantly advance reproductive health or the efficacy and 
        safety of fertility treatment, or make fertility treatment more 
        difficult to access.
            (2) To promote the right and ability of a patient residing 
        in any State to choose to receive fertility treatment provided 
        in accordance with widely accepted and evidence-based medical 
        standards of care by a health care provider who chooses to 
        provide such services.
            (3) To protect an individual's right to make decisions, in 
        consultation with the individual's health care provider, about 
        the most appropriate medical care to maximize the chance of 
        becoming pregnant and giving birth to a healthy, living, human 
        child with the help of fertility treatment.

SEC. 103. DEFINITIONS.

    In this title:
            (1) Fertility treatment.--The term ``fertility treatment'' 
        includes the following:
                    (A) Preservation of human oocytes, sperm, or 
                embryos for later reproductive use.
                    (B) Artificial insemination, including intravaginal 
                insemination, intracervical insemination, and 
                intrauterine insemination.
                    (C) Assisted reproductive technology, including in 
                vitro fertilization and other treatments or procedures 
                in which reproductive genetic material, such as 
                oocytes, sperm, fertilized eggs, and embryos, are 
                handled, when clinically appropriate.
                    (D) Genetic testing of embryos.
                    (E) Medications prescribed or obtained over-the-
                counter, as indicated for fertility.
                    (F) Gamete donation.
                    (G) 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.
            (2) Health care provider.--The term ``health care 
        provider'' means any entity or individual (including any 
        physician, nurse practitioner, physician assistant, pharmacist, 
        health care support personnel, clinical staff, and any other 
        individual, as determined by the Secretary of Health and Human 
        Services) that--
                    (A) is engaged or seeks to engage in the delivery 
                of fertility treatment, including through the provision 
                of evidence-based information, counseling, referrals, 
                or items and services that relate to, aid in, or 
                provide fertility treatment; and
                    (B) if required by State law to be licensed, 
                certified, or otherwise authorized to engage in the 
                delivery of such services--
                            (i) is so licensed, certified, or otherwise 
                        authorized; or
                            (ii) would be so licensed, certified, or 
                        otherwise authorized but for the fact that the 
                        individual or entity has provided, is 
                        providing, or plans to provide fertility 
                        treatment in accordance with section 104.
            (3) Health insurance issuer.--The term ``health insurance 
        issuer'' has the meaning given such term in section 2791(b) of 
        the Public Health Service Act (42 U.S.C. 300gg-91(b)).
            (4) Manufacturer.--The term ``manufacturer'' means the 
        manufacturer of a drug or device approved, cleared, authorized, 
        or licensed under section 505, 510(k), 513(f)(2), or 515 of the 
        Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355, 360(k), 
        360c(f)(2), 360e) or section 351 of the Public Health Service 
        Act (42 U.S.C. 262) or otherwise legally marketed.
            (5) State.--The term ``State'' includes each of the 50 
        States, the District of Columbia, Puerto Rico, each territory 
        and possession of the United States, and any political 
        subdivision thereof.
            (6) Widely accepted and evidence-based medical standards of 
        care.--The term ``widely accepted and evidence-based medical 
        standards of care'' means any medical services, procedures, and 
        practices that are in accordance with the guidelines of the 
        American Society for Reproductive Medicine.

SEC. 104. FERTILITY TREATMENT RIGHTS.

    (a) General Rule.--
            (1) Individual rights.--An individual has a statutory right 
        under this title, without prohibition, limitation, 
        interference, or impediment, to the extent that such 
        prohibition, limitation, interference, or impediment in any way 
        or degree obstructs, delays, or affects commerce over which the 
        Federal Government has jurisdiction, to--
                    (A) receive fertility treatment from a health care 
                provider, in accordance with widely accepted and 
                evidence-based medical standards of care;
                    (B) continue or complete an ongoing fertility 
                treatment previously initiated by a health care 
                provider, in accordance with widely accepted and 
                evidence-based medical standards of care;
                    (C) make decisions and arrangements regarding the 
                donation, testing, use, storage, or disposition of 
                reproductive genetic material, such as oocytes, sperm, 
                fertilized eggs, and embryos; and
                    (D) establish contractual agreements with a health 
                care provider relating to the health care provider's 
                services in handling, testing, storing, shipping, and 
                disposing of the individual's reproductive genetic 
                material in accordance with widely accepted and 
                evidence-based medical standards of care.
            (2) Health care provider rights.--A health care provider 
        has a statutory right under this title, without prohibition, 
        limitation, interference, or impediment, to the extent that 
        such prohibition, limitation, interference, or impediment in 
        any way or degree obstructs, delays, or affects commerce over 
        which the Federal Government has jurisdiction, to--
                    (A) provide, or assist with the provision of, 
                fertility treatment provided in accordance with widely 
                accepted and evidence-based medical standards of care;
                    (B) continue or complete the provision of, or 
                assistance with, fertility treatment that was lawful 
                when commenced and is provided in accordance with 
                widely accepted and evidence-based medical standards of 
                care;
                    (C) provide for, or assist with, the testing, use, 
                storage, or disposition of reproductive genetic 
                material, such as oocytes, sperm, fertilized eggs, and 
                embryos, in accordance with widely accepted and 
                evidence-based medical standards of care; and
                    (D) establish contractual agreements with 
                individuals or manufacturers relating to the health 
                care provider's services in handling, testing, storing, 
                shipping, and disposing of the individual's 
                reproductive genetic material.
            (3) Health insurance issuer rights.--A health insurance 
        issuer has a statutory right under this title, without 
        prohibition, limitation, interference, or impediment, to the 
        extent that such prohibition, limitation, interference, or 
        impediment in any way or degree obstructs, delays, or affects 
        commerce over which the Federal Government has jurisdiction, to 
        cover the provision of fertility treatment provided in 
        accordance with widely accepted and evidence-based medical 
        standards of care.
            (4) Manufacturer rights.--A manufacturer of a drug or 
        device that is approved, cleared, authorized, or licensed under 
        section 505, 510(k), 513(f)(2), or 515 of the Federal Food, 
        Drug, and Cosmetic Act (21 U.S.C. 355; 360(k); 360c(f)(2); 
        360e) or section 351 of the Public Health Service Act (42 
        U.S.C. 262) or otherwise legally marketed and intended for use 
        in the provision of fertility treatment, including the storage 
        or transport of oocytes, gametes, fertilized eggs, and embryos, 
        has a statutory right under this title, without prohibition, 
        limitation, interference, or impediment, to the extent that 
        such prohibition, limitation, interference, or impediment in 
        any way or degree obstructs, delays, or affects commerce over 
        which the Federal Government has jurisdiction, to manufacture, 
        import, market, sell, and distribute such drug or device.
    (b) State Regulation of Medicine.--The enforcement of State health 
and safety law regarding medical facilities or health care providers 
does not constitute a violation of subsection (a) if--
            (1) such regulations are in accordance with widely accepted 
        and evidence-based medical standards of care for providing 
        fertility treatment; and
            (2) the safety or health objective cannot be advanced by a 
        different means that does not prohibit, limit, interfere with, 
        or impede the rights described in subsection (a).
    (c) Enforcement.--
            (1) The attorney general.--
                    (A) In general.--The Attorney General may commence 
                a civil action on behalf of the United States against 
                any State; an individual, employee, official, agency 
                head, contractor, organization, or instrumentality 
                acting for, or on behalf of, such a State; or any 
                individual acting under the color of, or pursuant to, 
                State law, that implements, enforces, or threatens to 
                enforce a limitation or requirement that prohibits, 
                limits, interferes with, or impedes the statutory 
                rights of an individual, a health care provider, a 
                health insurance issuer, or a manufacturer under 
                subsection (a).
                    (B) Effect of violations.--The court shall hold 
                unlawful and set aside a limitation or requirement 
                described in subparagraph (A) if it is in violation of 
                subsection (a).
            (2) Private right of action.--
                    (A) In general.--Any individual or entity adversely 
                affected by an alleged violation of subsection (a) may 
                commence a civil action against an individual, 
                employee, official, agency head, contractor, 
                organization, or instrumentality acting for, or on 
                behalf of, such a State that enacts, implements, or 
                enforces a limitation or requirement that prohibits, 
                limits, interferes with, or impedes the statutory 
                rights of an individual, a health care provider, a 
                health insurance issuer, or a manufacturer under 
                subsection (a).
                    (B) Effect of violations.--The court shall hold 
                unlawful and enjoin a limitation or requirement 
                described in subparagraph (A) if it is in violation of 
                subsection (a).
            (3) Health care provider.--
                    (A) In general.--A health care provider may 
                commence a civil action for relief on such provider's 
                own behalf, on behalf of the provider's staff, or on 
                behalf of the provider's patients who are or may be 
                adversely affected by an alleged violation of 
                subsection (a).
                    (B) Effect of violations.--The court shall hold 
                unlawful and enjoin a limitation or requirement 
                described in subparagraph (A) if it is in violation of 
                subsection (a).
            (4) Equitable relief.--In any action under this section, 
        the court may award appropriate equitable relief, including 
        temporary, preliminary, or permanent injunctive relief.
            (5) Costs.--
                    (A) In general.--In any action under this section, 
                the court shall award costs of litigation, as well as 
                reasonable attorney's fees, to any prevailing 
                plaintiff.
                    (B) Liability of plaintiffs.--A plaintiff shall not 
                be liable to a defendant for costs or attorney's fees 
                in any non-frivolous action under this section unless 
                such costs or attorney's fees are imposed by the court 
                as part of sanctions for violations committed during 
                the discovery process.
            (6) Jurisdiction.--The district courts of the United States 
        shall have jurisdiction over proceedings under this section and 
        shall exercise the same without regard to whether the party 
        aggrieved shall have exhausted any administrative or other 
        remedies that may be provided for by law.
            (7) Right to remove.--
                    (A) In general.--Any party shall have a right to 
                remove an action brought under this subsection to the 
                district court of the United States for the district 
                and division embracing the place where such action is 
                pending.
                    (B) Review.--An order remanding the case to the 
                State court from which it was removed under this 
                paragraph is immediately reviewable by appeal or 
                otherwise.
    (d) Regulations.--Not later than 180 days after the date of 
enactment of this Act, the Secretary of Health and Human Services shall 
promulgate regulations to carry out this section.
    (e) Rules of Construction.--
            (1) In general.--For purposes of this title, a State law, 
        or the administration, implementation, or enforcement of a 
        State law, constitutes a prohibition, limitation, interference, 
        or impediment on a health care provider providing, an 
        individual receiving, a health insurance issuer covering, or a 
        manufacturer marketing drugs or devices for fertility 
        treatment, provided in accordance with widely accepted and 
        evidence-based medical standards of care, as described in 
        subsection 104, if the administration, implementation, 
        interpretation, or enforcement of such law has an effect that--
                    (A) imposes requirements or limitations that are 
                inconsistent with providing, receiving, providing 
                health insurance coverage for, or providing drugs or 
                devices for fertility treatment in accordance with 
                widely accepted and evidence-based medical standards of 
                care or that otherwise violate the purpose and 
                requirements of this Act, which may include--
                            (i) requiring that a health care provider 
                        provide, and patients undertake, medically 
                        unnecessary procedures and services, including 
                        tests and procedures, providing medically 
                        inaccurate information regarding fertility 
                        treatment, or requiring additional unnecessary 
                        in-person visits to a health care provider, 
                        that are inconsistent with widely accepted and 
                        evidence-based medical standards of care;
                            (ii) imposing limitations or requirements 
                        concerning physical offices, clinics, 
                        facilities, equipment, staffing, or hospital 
                        transfer arrangements of facilities where 
                        fertility treatment is provided, or the 
                        credentials or hospital privileges or status of 
                        personnel at such facilities, that are not 
                        consistent with widely accepted and evidence-
                        based medical standards of care; or
                            (iii) limiting a health care provider's 
                        right or ability to provide, or a patient's 
                        right to receive, or imposing limitations that 
                        reduce the efficacy of, fertility treatment in 
                        accordance with widely accepted and evidence-
                        based medical standards of care, including 
                        retrieval of multiple eggs during oocyte 
                        retrieval; performance of insemination 
                        procedures, including intrauterine 
                        insemination; intracytoplasmic sperm injections 
                        to fertilize multiple human eggs; and 
                        cryopreservation of one or more eggs or embryos 
                        for fertility preservation and subsequent 
                        transfer, if determined appropriate by the 
                        health care provider and patient;
                    (B) infringes, limits, or restricts the ability of 
                a health care provider, patient, health insurance 
                issuer, or manufacturer, to exercise or enforce their 
                statutory rights under this title on the basis of 
                marital status, sex (including sexual orientation and 
                gender identity) or any other protected class that is 
                covered by Federal law;
                    (C) limits a health care provider's or patient's 
                right or ability to determine the most appropriate 
                disposition of fertilized eggs or embryos, including by 
                defining a gamete or embryo in such a way as to prevent 
                the disposition of gametes and embryos;
                    (D) limits a health care provider's ability to 
                provide, or a patient's ability to receive, fertility 
                treatment via telemedicine, in accordance with widely 
                accepted and evidence-based medical standards of care;
                    (E) limits or prohibits a health care provider's 
                ability to provide, or a patient's ability to receive, 
                fertility counseling or fertility treatment based on 
                the residency of the patient, or prohibits or limits 
                the ability of any individual to assist or support a 
                patient seeking fertility treatment;
                    (F) imposes requirements or limitations that compel 
                health care providers to provide, or patients to 
                receive, medically unnecessary care, or withhold 
                medically necessary care, in a manner that is not 
                consistent with widely accepted and evidence-based 
                medical standards of care for fertility treatment, 
                including mandating the transfer of embryos that a 
                health care provider would not reasonably expect, based 
                on widely accepted and evidence-based medical standards 
                of care, to lead to a healthy pregnancy or a live 
                birth;
                    (G) limits a health care provider's right or 
                ability to prescribe or dispense, or a patient's right 
                or ability to receive or use, medications for fertility 
                treatment in accordance with widely accepted and 
                evidence-based medical standards of care, unless such a 
                limitation is generally applicable to the prescription, 
                dispensing, or distribution of medications; or
                    (H) limits a health care provider's right or 
                ability to perform a human sperm retrieval procedure in 
                accordance with widely accepted and evidence-based 
                medical standards of care.
            (2) Clarification.--The descriptions of specific State laws 
        that would violate the statutory rights and protections 
        described in paragraph (1) shall not be construed to limit 
        potential violations of the statutory rights and protections 
        under this title to only the restrictions and limitations 
        listed in paragraph (1), and potential violations of this title 
        may result from novel State restrictions and limitations that 
        are not listed under paragraph (1).
            (3) Exclusion.--It shall not constitute a prohibition, 
        limitation, interference, or impediment to a health care 
        provider providing, an individual receiving, a health insurance 
        issuer covering, or a manufacturer marketing a drug or device 
        for purposes of, fertility treatment under this title for an 
        entity to act in compliance with the Food and Drug 
        Administration's regulation of drugs, devices, biological 
        products, human cells, tissues, or cellular or tissue-based 
        products used in fertility treatment, consistent with widely 
        accepted and evidence-based medical standards of care for 
        fertility treatment.

SEC. 105. APPLICABILITY AND PREEMPTION.

    (a) In General.--
            (1) General application.--
                    (A) Effect on state law.--This title supersedes any 
                State law that is inconsistent with the statutory 
                rights established under this title and precludes the 
                implementation of such a law, whether statutory, common 
                law, or otherwise, and whether adopted before or after 
                the date of enactment of this Act.
                    (B) Prohibition.--No State shall administer, 
                implement, or enforce any law, rule, regulation, 
                standard, or other provision having the force and 
                effect of law that conflicts with any provision of this 
                title, notwithstanding any other provision of Federal 
                law.
            (2) Exclusion.--Preemption of State law under paragraph (1) 
        does not apply to--
                    (A) State law regarding the resolution of disputes 
                between 2 individuals with rights described in section 
                104(a)(1) with respect to the same reproductive genetic 
                material, such as oocytes, sperm, fertilized eggs, and 
                embryos; or
                    (B) any other State law, to the extent that such 
                law does not conflict with this title and protects an 
                individual's right and ability to receive fertility 
                treatment in accordance with widely accepted and 
                evidence-based medical standards of care, including any 
                such law that holds a health care provider accountable 
                for not providing fertility treatment in accordance 
                with widely accepted and evidence-based medical 
                standards of care.
            (3) Preservation of federal public health authorities.--
        Nothing in this title shall have the effect of superseding, 
        negating, or limiting provisions of Federal law, including the 
        Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) or 
        the Public Health Service Act (42 U.S.C. 201 et seq.), and 
        regulations promulgated under such statutes, with respect to 
        the regulation of drugs, devices, biological products, human 
        cells, tissues, or cellular or tissue-based products used in 
        fertility treatment.
            (4) Preservation of hipaa rules.--Nothing in this title 
        shall have the effect of superseding, negating, or limiting the 
        provisions of the privacy, security, and breach notification 
        regulations in parts 160 and 164 of title 45, Code of Federal 
        Regulations (or successor regulations).
            (5) Subsequently enacted federal legislation.--Federal 
        statutory law adopted after the date of the enactment of this 
        Act is subject to this title unless such law explicitly 
        excludes such application by reference to this title.
    (b) Defense.--In any cause of action against an individual or 
entity who is subject to a limitation or requirement that violates this 
title, in addition to the remedies specified in section 104(b), this 
title shall also apply to, and may be raised as a defense by, such an 
individual or entity.

               TITLE II--VETERAN FAMILIES HEALTH SERVICES

SEC. 200. SHORT TITLE.

    This title may be cited as the ``Veteran Families Health Services 
Act''.

  Subtitle A--Reproductive and Fertility Preservation Assistance for 
                   Members of the Uniformed Services

SEC. 201. DEFINITIONS.

    In this subtitle:
            (1) Active duty.--The term ``active duty'' has the meaning 
        given that term in section 101(18) of title 37, United States 
        Code.
            (2) Uniformed services.--The term ``uniformed services'' 
        has the meaning given that term in section 101(a)(5) of title 
        10, United States Code.

SEC. 202. PROVISION OF FERTILITY TREATMENT AND COUNSELING TO CERTAIN 
              MEMBERS OF THE UNIFORMED SERVICES AND SPOUSES, PARTNERS, 
              AND GESTATIONAL SURROGATES OF SUCH MEMBERS.

    (a) Fertility Treatment and Counseling.--
            (1) In general.--The Secretary of Defense shall make 
        available fertility treatment and counseling to a member of the 
        uniformed services or a spouse, partner, or gestational 
        surrogate of such a member.
            (2) Eligibility for treatment and counseling.--Fertility 
        treatment and counseling shall be furnished under paragraph (1) 
        without regard to the sex, sex characteristics, gender 
        identity, sexual orientation, infertility diagnosis, or marital 
        status of the member of the uniformed services or their 
        partner.
            (3) In vitro fertilization.--In the case of in vitro 
        fertilization treatment furnished under paragraph (1), the 
        Secretary may furnish to an individual under such paragraph--
                    (A) not more than three completed oocyte 
                retrievals; and
                    (B) unlimited embryo transfers.
    (b) Procurement of Reproductive Genetic Material.--If a member of 
the uniformed services is unable to provide their reproductive genetic 
material, such as oocytes, sperm, fertilized eggs, and embryos, for 
purposes of fertility treatment under subsection (a), the Secretary 
shall, at the election of such member, allow such member to receive 
such treatment with donated reproductive genetic material and pay or 
reimburse such member the reasonable costs of procuring such material 
from a donor.
    (c) Rules of Construction.--
            (1) Impact on existing authority.--Nothing in this section 
        shall be construed to rescind the authority of the Secretary to 
        provide in vitro fertilization benefits pursuant to section 
        1074(c)(4) of title 10, United States Code.
            (2) Sourcing of gestational surrogate or reproductive 
        genetic material.--Nothing in this section shall be construed 
        to require the Secretary--
                    (A) to find or certify a gestational surrogate for 
                a member of the uniformed services or to connect a 
                gestational surrogate with such a member; or
                    (B) to find or certify reproductive genetic 
                material, such as oocytes, sperm, fertilized eggs, and 
                embryos, from a donor for a member of the uniformed 
                services or to connect such a member with reproductive 
                genetic material from a donor.
    (d) Definitions.--In this section:
            (1) Fertility treatment.--The term ``fertility treatment'' 
        includes the following:
                    (A) Preservation of human oocytes, sperm, or 
                embryos for later reproductive use.
                    (B) Artificial insemination, including intravaginal 
                insemination, intracervical insemination, and 
                intrauterine insemination.
                    (C) Assisted reproductive technology, including in 
                vitro fertilization and other treatments or procedures 
                in which reproductive genetic material, such as 
                oocytes, sperm, fertilized eggs, and embryos, are 
                handled, when clinically appropriate.
                    (D) Genetic testing of embryos.
                    (E) Medications prescribed or obtained over-the-
                counter, as indicated for fertility.
                    (F) Gamete donation.
                    (G) Such other information, referrals, treatments, 
                procedures, medications, laboratory testing, 
                technologies, and services relating to fertility as the 
                Secretary of Defense determines appropriate.
            (2) Gestational surrogate.--The term ``gestational 
        surrogate'' means an individual who agrees to become pregnant 
        through in vitro fertilization under a gestational surrogacy 
        agreement using gametes that are not the gametes of that 
        individual.
            (3) Partner.--The term ``partner'', with respect to a 
        member of the uniformed services, means an individual selected 
        by the member who agrees to be a parent, with the member, of a 
        child born as a result of the use of any fertility treatment 
        under this section.

SEC. 203. ESTABLISHMENT OF FERTILITY PRESERVATION PROCEDURES AFTER AN 
              INJURY OR ILLNESS.

    (a) In General.--The Secretary of Defense, acting through the 
Assistant Secretary of Defense for Health Affairs, shall establish 
procedures for the retrieval of reproductive genetic material, such as 
oocytes, sperm, fertilized eggs, and embryos, as soon as medically 
appropriate, from a member of the uniformed services in cases in which 
the fertility of such member is potentially jeopardized as a result of 
an injury or illness incurred or aggravated while serving on active 
duty in the uniformed services in order to preserve the medical options 
of such member.
    (b) Inclusion of Information in Advanced Directives and Military 
Testamentary Instruments.--The Secretary of Defense shall ensure that 
any advance medical directive, as defined in section 1044c(b) of title 
10, United States Code, or military testamentary instrument, as defined 
in section 1044d(b) of such title, completed by a member of the 
uniformed services includes questions about the consent of the member 
to fertility preservation procedures under subsection (a).
    (c) Disposal of Reproductive Genetic Material.--Subject to section 
204, in accordance with regulations prescribed by the Secretary for 
purpose of this subsection, the Secretary shall dispose of reproductive 
genetic material retrieved from a member of the uniformed services 
under subsection (a)--
            (1) with the specific consent of the member; or
            (2) if the member--
                    (A) has lost the ability to consent permanently, as 
                determined by a medical professional, or has died; and
                    (B) has not specified the use of their reproductive 
                genetic material in an advance directive or 
                testamentary instrument executed by the member.

SEC. 204. CRYOPRESERVATION AND STORAGE OF REPRODUCTIVE GENETIC MATERIAL 
              OF MEMBERS OF THE UNIFORMED SERVICES ON ACTIVE DUTY.

    (a) In General.--The Secretary of Defense shall provide members of 
the uniformed services on active duty in the uniformed services with 
the opportunity to cryopreserve and store their reproductive genetic 
material, such as oocytes, sperm, fertilized eggs, and embryos, prior 
to--
            (1) deployment to a combat zone; or
            (2) a duty assignment that includes a hazardous assignment, 
        including--
                    (A) assignments resulting in exposure to 
                perfluoroalkyl or polyfluoroalkyl substances; and
                    (B) such other assignments as determined by the 
                Secretary.
    (b) Period of Time.--
            (1) In general.--The Secretary shall provide for the 
        cryopreservation and storage of reproductive genetic material 
        of any member of the uniformed services under subsection (a) in 
        a facility of the Department of Defense or of a private entity 
        and the transportation of such material, at no cost to the 
        member, until the date that is one year after the retirement, 
        separation, or release of the member from the uniformed 
        services.
            (2) Continued cryopreservation and storage.--At the end of 
        the one-year period specified in paragraph (1), the Secretary 
        shall permit an individual whose reproductive genetic material 
        was cryopreserved and stored as described in that paragraph to 
        select, including pursuant to an advance medical directive or 
        military testamentary instrument completed under subsection 
        (c), one of the following options:
                    (A) To continue such cryopreservation and storage 
                in such facility with the cost of such cryopreservation 
                and storage borne by the individual.
                    (B) To transfer the material to a private 
                cryopreservation and storage facility selected by the 
                individual.
                    (C) To transfer the material to a facility of the 
                Department of Veterans Affairs if cryopreservation and 
                storage is available to the individual at such facility 
                and the individual is eligible for such services.
            (3) Disposal of reproductive genetic material.--
                    (A) No selection.--If an individual described in 
                paragraph (2) does not make a selection under 
                subparagraph (A), (B), or (C) of such paragraph, the 
                Secretary may dispose of the reproductive genetic 
                material of the individual not earlier than the date 
                that is 90 days after the end of the one-year period 
                specified in paragraph (1) with respect to the 
                individual.
                    (B) Election by individual.--At the election of an 
                individual described in paragraph (2), the Secretary 
                may dispose of the reproductive genetic material of the 
                individual.
    (c) Advance Medical Directive and Military Testamentary 
Instrument.--A member of the uniformed services who elects to 
cryopreserve and store their reproductive genetic material under this 
section must complete an advance medical directive, as defined in 
section 1044c(b) of title 10, United States Code, and a military 
testamentary instrument, as defined in section 1044d(b) of such title, 
that explicitly specifies the use of their cryopreserved and stored 
reproductive genetic material if such member dies or otherwise loses 
the capacity to consent to the use of their cryopreserved and stored 
reproductive genetic material.
    (d) Agreements.--To carry out this section, the Secretary may enter 
into agreements with private entities that provide cryopreservation, 
transportation, and storage services for reproductive genetic material.

SEC. 205. ASSISTANCE WITH AND CONTINUITY OF CARE REGARDING REPRODUCTIVE 
              AND FERTILITY PRESERVATION SERVICES.

    The Secretary of Defense shall ensure that employees of the 
Department of Defense assist members of the uniformed services--
            (1) in navigating the services provided under this 
        subtitle;
            (2) in finding a provider that meets the needs of such 
        members with respect to such services; and
            (3) in continuing the receipt of such services without 
        interruption during a permanent change of station for such 
        members.

SEC. 206. COORDINATION BETWEEN DEPARTMENT OF DEFENSE AND DEPARTMENT OF 
              VETERANS AFFAIRS ON FURNISHING OF FERTILITY TREATMENT AND 
              COUNSELING.

    (a) In General.--The Secretary of Defense and the Secretary of 
Veterans Affairs shall share best practices and facilitate referrals, 
as they consider appropriate, on the furnishing of fertility treatment 
and counseling to individuals eligible for the receipt of such 
counseling and treatment from the Secretaries.
    (b) Memorandum of Understanding.--The Secretary of Defense and the 
Secretary of Veterans Affairs shall enter into a memorandum of 
understanding--
            (1) providing that the Secretary of Defense will ensure 
        access by the Secretary of Veterans Affairs to reproductive 
        genetic material, such as oocytes, sperm, fertilized eggs, and 
        embryos, of veterans stored by the Department of Defense for 
        purposes of furnishing fertility treatment under section 1720K 
        of title 38, United States Code, as added by section 212(a); 
        and
            (2) authorizing the Department of Veterans Affairs to 
        compensate the Department of Defense for the cryopreservation, 
        transportation, and storage of reproductive genetic material of 
        veterans under section 204(b)(2)(A).

SEC. 207. REGULATIONS.

    Not later than two years after the date of the enactment of this 
Act, the Secretary of Defense shall prescribe regulations to carry out 
this subtitle.

            Subtitle B--Reproductive Assistance for Veterans

SEC. 211. INCLUSION OF FERTILITY TREATMENT AND COUNSELING UNDER THE 
              DEFINITION OF MEDICAL SERVICES IN TITLE 38.

    Section 1701(6) of title 38, United States Code, is amended by 
adding at the end the following new subparagraph:
                    ``(J) Fertility treatment and counseling under 
                section 1720K of this title.''.

SEC. 212. FERTILITY TREATMENT AND COUNSELING FOR CERTAIN VETERANS AND 
              SPOUSES, PARTNERS, AND GESTATIONAL SURROGATES OF SUCH 
              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. Fertility treatment and counseling for certain veterans 
              and spouses, partners, and gestational surrogates of such 
              veterans
    ``(a) Requirement.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, including the surrogacy laws of any State, the Secretary 
        shall furnish fertility treatment and counseling for the 
        benefit of a covered veteran to the veteran and the spouse, 
        partner, gamete donor, or gestational surrogate of the veteran 
        if the veteran, and the spouse, partner, gamete donor, or 
        gestational surrogate of the veteran, as applicable, each 
        provide informed consent for such treatment and counseling, 
        including for each cycle of treatment authorized under this 
        section, through a process prescribed by the Secretary.
            ``(2) Provision of treatment and counseling.--Fertility 
        treatment and counseling shall be furnished under paragraph (1) 
        without regard to the sex, sexual characteristics, gender 
        identity, sexual orientation, infertility diagnosis, or marital 
        status of the covered veteran or their partner.
            ``(3) In vitro fertilization.--In the case of in vitro 
        fertilization treatment furnished under paragraph (1), the 
        Secretary may furnish to an individual under such paragraph--
                    ``(A) not more than three completed oocyte 
                retrievals; and
                    ``(B) unlimited embryo transfers.
            ``(4) Copayment.--The Secretary shall only furnish 
        fertility treatment and counseling under paragraph (1) to a 
        covered veteran who is required to pay to the United States a 
        copayment amount as a condition for the receipt of hospital 
        care, medical services, or medications under this chapter if 
        the covered veteran agrees to pay such applicable copayment 
        amount to the United States for such treatment and counseling.
    ``(b) Procurement of Reproductive Genetic Material.--
            ``(1) In general.--If a covered veteran is unable to 
        provide their reproductive genetic material for purposes of 
        fertility treatment under subsection (a), the Secretary shall, 
        at the election of such veteran--
                    ``(A) allow such veteran to receive such treatment 
                with donated reproductive genetic material, if the 
                donor provides informed consent for use of such 
                material; and
                    ``(B) pay or reimburse the veteran, donor, or a 
                party acting on behalf of the donor the reasonable 
                costs of procuring such material from the donor.
            ``(2) Other expenses.--The Secretary may pay or reimburse a 
        covered veteran a reasonable amount for personal travel and 
        incidental expenses associated with procuring material from a 
        donor under paragraph (1).
    ``(c) Outreach and Training.--The Secretary shall carry out an 
outreach and training program to ensure veterans and health care 
providers of the Department are aware of--
            ``(1) the availability of and eligibility requirements for 
        fertility treatment and counseling under this section; and
            ``(2) any changes to fertility treatment and counseling 
        covered under this section.
    ``(d) Ownership, Use, or Disposition of Reproductive Genetic 
Material.--
            ``(1) In general.--Issues or disputes regarding ownership 
        of reproductive genetic material or future use or disposition 
        of such material shall be the sole responsibility of the 
        covered veteran, the spouse, partner, or gestational surrogate 
        of the veteran, as applicable, and the private facility storing 
        such material.
            ``(2) Agreement regarding donated reproductive genetic 
        material.--As a condition of the use of donated gametes or 
        embryos under this section, the third-party donor and a 
        provider of fertility treatment that has entered into a 
        contract or agreement with the Secretary to provide such 
        treatment under this section are required to enter into an 
        arrangement or agreement governing the terms of the donation, 
        to include ultimate disposition of any remaining gametes or 
        embryos once a covered veteran has exhausted the fertility 
        treatment available under this section, unless the veteran or 
        the spouse or partner of the veteran has agreed to assume 
        liability for the continued preservation of any remaining 
        gametes or embryos and the Department is not party to the 
        arrangement or agreement for such continued preservation.
            ``(3) Role of department.--The role of the Secretary under 
        this section is limited to furnishing the treatment and 
        counseling required under this section when requested by a 
        covered veteran and determined necessary by the Secretary.
            ``(4) Ownership and custody of reproductive genetic 
        material.--The Secretary will not have ownership or custody of 
        any reproductive genetic material obtained pursuant to 
        treatment under this section and will not be involved in the 
        ultimate disposition of such material or disputes between or 
        among any parties with respect to such material.
    ``(e) Rule of Construction.--Nothing in this section shall be 
construed to require the Secretary--
            ``(1) to find or certify a gestational surrogate for a 
        covered veteran or to connect a gestational surrogate with a 
        covered veteran; or
            ``(2) to furnish maternity care to a covered veteran or 
        spouse, partner, or gestational surrogate of a covered veteran 
        beyond what is otherwise required or authorized by law.
    ``(f) Definitions.--In this section:
            ``(1) The term `covered veteran' means a veteran who is 
        enrolled in the system of annual patient enrollment established 
        under section 1705(a) of this title.
            ``(2) The term `fertility treatment' includes the 
        following:
                    ``(A) Preservation of human oocytes, sperm, or 
                embryos for later reproductive use.
                    ``(B) Artificial insemination, including 
                intravaginal insemination, intracervical insemination, 
                and intrauterine insemination.
                    ``(C) Assisted reproductive technology, including 
                in vitro fertilization and other treatments or 
                procedures in which reproductive genetic material, such 
                as oocytes, sperm, fertilized eggs, and embryos, are 
                handled, when clinically appropriate.
                    ``(D) Genetic testing of embryos.
                    ``(E) Medications prescribed or obtained over-the-
                counter, as indicated for fertility.
                    ``(F) Gamete donation.
                    ``(G) Such other information, referrals, 
                treatments, procedures, medications, laboratory 
                testing, technologies, and services relating to 
                fertility as the Secretary determines appropriate.
            ``(3) The term `gestational surrogate' means an individual 
        who agrees to become pregnant through in vitro fertilization 
        under a gestational surrogacy agreement using gametes that are 
        not the gametes of that individual.
            ``(4) The term `partner', with respect to a covered 
        veteran, means an individual selected by the veteran who agrees 
        to be a parent, with the veteran, of a child born as a result 
        of the use of any fertility treatment under this section.''.
    (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. Fertility treatment and counseling for certain veterans and 
                            spouses, partners, and gestational 
                            surrogates of such veterans.''.
    (c) Sunset of Existing Authority.--The authority under section 234 
of the Military Construction, Veterans Affairs, and Related Agencies 
Appropriations Act, 2024 (division A of Public Law 118-42), or any 
similar authority subsequently enacted by law, shall cease on the 
effective date of regulations prescribed to carry out section 1720K of 
title 38, United States Code, as added by subsection (a).

SEC. 213. ASSISTANCE WITH AND CONTINUITY OF CARE REGARDING REPRODUCTIVE 
              AND FERTILITY PRESERVATION SERVICES.

    The Secretary of Veterans Affairs shall ensure that employees of 
the Department of Veterans Affairs assist veterans--
            (1) in navigating the services provided under this subtitle 
        and the amendments made by this subtitle;
            (2) in finding a provider that meets the needs of such 
        veterans with respect to such services; and
            (3) in continuing the receipt of such services without 
        interruption if such veterans move to a different geographic 
        location.

SEC. 214. COORDINATION OF REPRODUCTION AND FERTILITY RESEARCH FOR 
              VETERANS.

    (a) In General.--Subchapter II of chapter 73 of title 38, United 
States Code, is amended by adding at the end the following new section:
``Sec. 7330E. Coordination of reproduction and fertility research for 
              veterans
    ``(a) Coordination of Research Required.--The Secretary shall 
coordinate with the Secretary of Defense and the Secretary of Health 
and Human Services to conduct research to improve the ability of the 
Department of Veterans Affairs to meet the long-term reproductive 
health care needs of veterans who have a condition that affects the 
ability of the individual to reproduce.
    ``(b) Dissemination of Information.--The Secretary shall ensure 
that information produced by the research under this section that may 
be useful for other activities of the Department is disseminated 
throughout the Department.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
subchapter II of chapter 73 of such title is amended by inserting after 
the item relating to section 7330D the following new item:

``7330E. Coordination of reproduction and fertility research for 
                            veterans.''.

           TITLE III--ACCESS TO FERTILITY TREATMENT AND CARE

SEC. 301. SHORT TITLE.

    This title may be cited as the ``Access to Fertility Treatment and 
Care Act''.

SEC. 302. 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:

``SEC. 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 for 
        later reproductive use.
            ``(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, 
        fertilized eggs, 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, 2026;
            ``(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:

``SEC. 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 for 
        later reproductive use.
            ``(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, 
        fertilized eggs, 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, 2026;
            ``(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:

``SEC. 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 for 
        later reproductive use.
            ``(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, 
        fertilized eggs, 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, 2026;
            ``(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.

SEC. 303. 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, 
        2025.
            (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.

SEC. 304. 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, 2025.

                TITLE IV--FAMILY BUILDING FEHB FAIRNESS

SEC. 401. SHORT TITLE.

    This title may be cited as the ``Family Building FEHB Fairness 
Act''.

SEC. 402. FERTILITY TREATMENT BENEFITS.

    (a) In General.--Section 8904 of title 5, United States Code, is 
amended--
            (1) in subsection (a)--
                    (A) in paragraph (1), by adding at the end the 
                following:
                    ``(G) Fertility treatment benefits.''; and
                    (B) in paragraph (2)--
                            (i) by redesignating subparagraph (F) as 
                        subparagraph (G); and
                            (ii) by inserting after subparagraph (E) 
                        the following:
                    ``(F) Fertility treatment benefits.''; and
            (2) by adding at the end the following:
    ``(c) In this section, the term `fertility treatment' includes the 
following:
            ``(1) Preservation of human oocytes, sperm, or embryos for 
        later reproductive use.
            ``(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, 
        fertilized eggs, 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 services, technologies, and 
        services relating to fertility as the Director of the Office of 
        Personnel Management, in coordination with the Secretary of 
        Health and Human Services, determines appropriate.''.
    (b) Effective Date.--The amendments made by this section shall take 
effect on the date that is 1 year after the date of enactment of this 
Act.
                                                       Calendar No. 413

118th CONGRESS

  2d Session

                                S. 4445

_______________________________________________________________________

                                 A BILL

    To protect and expand nationwide access to fertility treatment, 
                   including in vitro fertilization.

_______________________________________________________________________

                              June 4, 2024

            Read the second time and placed on the calendar
```