II 

111TH CONGRESS 

1ST SESSION S. 1258 

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

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

to require coverage for the treatment of infertility. 

IN THE SENATE OF THE UNITED STATES 

JUNE 15, 2009 

Mrs. GILLIBRAND introduced the following bill; which was read twice and 

referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

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

of title 5, United States Code, to require coverage for 

the treatment of infertility. 

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 2009’’. 

6 (b) FINDINGS.—Congress makes the following find7 ings: 


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1 (1) Infertility is a disease affecting more than 

2 6,000,000 American women and men, about 10 per3 cent of the reproductive age population. 

4 (2) Recent improvements in therapy make preg5 nancy possible for more couples than in past years. 

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

7 provide coverage for infertility therapy. 

8 (4) A fundamental part of the human experi9 ence is fulfilling the desire to reproduce. 

10 SEC. 2. STANDARDS RELATING TO BENEFITS FOR TREAT11 MENT OF INFERTILITY. 

12 (a) GROUP HEALTH PLANS.— 

13 (1) PUBLIC HEALTH SERVICE ACT AMEND14 MENT.—(A) Subpart 2 of part A of title XXVII of 

15 the Public Health Service Act is amended by adding 

16 at the end the following new section: 

17 ‘‘SEC. 2708. STANDARDS RELATING TO BENEFITS FOR 

18 TREATMENT OF INFERTILITY. 

19 ‘‘(a) REQUIREMENTS FOR COVERAGE OF TREAT20 MENT OF INFERTILITY.— 

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

22 health plan, and a health insurance issuer offering 

23 group health insurance coverage provides coverage 

24 for obstetrical services, such plan or issuer shall inVerDate Nov 24 2008 22:45 Jun 15, 2009 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258

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1 clude (consistent with this section) coverage for 

2 treatment of infertility. 

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

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

5 condition that results in the abnormal function of 

6 the reproductive system, which results in— 

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

8 of unprotected intercourse, or 

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

10 live birth. 

11 ‘‘(b) REQUIRED COVERAGE.— 

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

13 health insurance issuer offering group health insur14 ance coverage shall provide coverage for treatment 

15 of infertility deemed appropriate by a participant or 

16 beneficiary and the treating physician. Such treat17 ment shall include ovulation induction, artificial in18 semination, in vitro fertilization (IVF), gamete 

19 intrafallopian transfer (GIFT), zygote intrafallopian 

20 transfer (ZIFT), intracytoplasmic sperm injection 

21 (ICSI), sperm collection for fertility treatments, and 

22 any other treatment provided it has been deemed as 

23 ‘non-experimental’ by the Secretary after consulta24 tion with appropriate professional and patient orga25 nizations such as the American Society for ReproVerDate Nov 24 2008 22:45 Jun 15, 2009 Jkt 079200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258

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1 ductive Medicine, RESOLVE, and the American 

2 College of Obstetricians and Gynecologists. 

3 ‘‘(2) LIMITATION ON COVERAGE OF ASSISTED

4 REPRODUCTIVE TECHNOLOGY.— 

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

6 reproductive technology, coverage shall be pro7 vided if— 

8 ‘‘(i) the participant or beneficiary has 

9 been unable to bring a pregnancy to a live 

10 birth through less costly medically appro11 priate infertility treatments for which cov12 erage is available under the insured’s pol13 icy, plan, or contract; 

14 ‘‘(ii) the participant or beneficiary has 

15 not undergone 4 complete oocyte retrievals, 

16 except that if a live birth follows a com17 pleted oocyte retrieval, then at least 2 

18 more completed oocyte retrievals shall be 

19 covered, with a lifetime cap of 6 retrievals; 

20 and 

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.—Not later 

16 than 5 years after the date of enactment of the 

17 Family Building Act of 2009, the Secretary, in con18 sultation with the American Society for Reproductive 

19 Medicine and RESOLVE: the National Infertility 

20 Association, shall review the requirements for treat21 ment of infertility established under paragraphs (1) 

22 and (2). 

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

24 other cost-sharing or other limitations for infertility ther25 apy may not be imposed to the extent they exceed the 


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1 deductibles, coinsurance, and limitations that are applied 

2 to similar services under the group health plan or health 

3 insurance coverage. 

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

5 health insurance issuer offering group health insurance 

6 coverage in connection with a group health plan, may 

7 not— 

8 ‘‘(1) deny to a participant or beneficiary eligi9 bility, or continued eligibility, to enroll or to renew 

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

11 purpose of avoiding the requirements of this section; 

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

13 to a participant or beneficiary to encourage such 

14 participant or beneficiary not to be provided infer15 tility treatments to which they are entitled under 

16 this section or to providers to induce such providers 

17 not to provide such treatments to qualified partici18 pants or beneficiaries; 

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

20 participant or beneficiary infertility treatment tech21 niques or medical treatment options relating to this 

22 section; or 

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

24 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 2708’’. 

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

25 part 7 of subtitle B of title I of the Employee ReVerDate Nov 24 2008 22:45 Jun 15, 2009 Jkt 079200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258

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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. 715. 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 2708 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 714 the following new item: 

‘‘715. 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 amendVerDate Nov 24 2008 22:45 Jun 15, 2009 Jkt 079200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258

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1 ed by inserting after section 2753 the following new sec2 tion: 

3 ‘‘SEC. 2754. STANDARD RELATING TO BENEFITS FOR 

4 TREATMENT OF INFERTILITY. 

5 ‘‘(a) IN GENERAL.—The provisions of section 2708 

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 2708 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 2708(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. 

Æ 


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