I 

111TH CONGRESS 

1ST SESSION H. R. 697 

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 HOUSE OF REPRESENTATIVES 

JANUARY 26, 2009 

Mr. WEINER (for himself, Ms. WASSERMAN SCHULTZ, Mrs. LOWEY, Mr. NADLER of New York, Mr. GRIJALVA, Ms. SCHWARTZ, Ms. LEE of California, 

and Mr. COHEN) introduced the following bill; which was referred to the 

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

on Education and Labor and Oversight and Government Reform, for a 

period to be subsequently determined by the Speaker, in each case for 

consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend the Public Health Service Act, the Employee Retirement Income Security Act of 1974, 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’’. 


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1 (b) FINDINGS.—Congress makes the following find2 ings: 

3 (1) Infertility is a disease affecting more than 

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

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

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

9 provide coverage for infertility therapy. 

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

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

14 (a) GROUP HEALTH PLANS.— 

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

17 the Public Health Service Act is amended by adding 

18 at the end the following new section: 

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

20 TREATMENT OF INFERTILITY. 

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

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

24 health plan, and a health insurance issuer offering 

25 group health insurance coverage provides coverage 


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1 for obstetrical services, such plan or issuer shall in2 clude (consistent with this section) coverage for 

3 treatment of infertility. 

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

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

6 condition that results in the abnormal function of 

7 the reproductive system, which results in— 

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

9 of unprotected intercourse, or 

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

11 live birth. 

12 ‘‘(b) REQUIRED COVERAGE.— 

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

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

16 of infertility deemed appropriate by a participant or 

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

20 intrafallopian transfer (GIFT), zygote intrafallopian 

21 transfer (ZIFT), intracytoplasmic sperm injection 

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

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

24 after consultation with appropriate professional and 

25 patient organizations such as the American Society 


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1 for Reproductive Medicine, RESOLVE, and the 

2 American College of Obstetricians and Gyne3 cologists. 

4 ‘‘(2) LIMITATION ON COVERAGE OF ASSISTED

5 REPRODUCTIVE TECHNOLOGY.— 

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

7 reproductive technology, coverage shall be pro8 vided if— 

9 ‘‘(i) the participant or beneficiary has 

10 been unable to bring a pregnancy to a live 

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

15 ‘‘(ii) the participant or beneficiary has 

16 not undergone 4 complete oocyte retrievals, 

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

19 more completed oocyte retrievals shall be 

20 covered, with a lifetime cap of 6 retrievals; 

21 and 

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

23 medical facility that— 


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1 ‘‘(I) conforms to the standards of 

2 the American Society for Reproductive 

3 Medicine; and 

4 ‘‘(II) is in compliance with any 

5 standards set by an appropriate Fed6 eral agency. 

7 ‘‘(B) DEFINITION OF ASSISTED REPRO8 DUCTIVE TECHNOLOGY.—For purposes of this 

9 paragraph, the term ‘assisted reproductive tech10 nology’ includes all treatments or procedures 

11 that involve the handling of human egg and 

12 sperm for the purpose of helping a woman be13 come pregnant. Types of assisted reproductive 

14 technology include in vitro fertilization, gamete 

15 intrafallopian transfer, zygote intrafallopian 

16 transfer, embryo cryopreservation, egg or em17 bryo donation, and surrogate birth. 

18 ‘‘(3) REVIEW BY THE SECRETARY.—Not later 

19 than 5 years after the date of enactment of the 

20 Family Building Act of 2009, the Secretary, in con21 sultation with the American Society for Reproductive 

22 Medicine and RESOLVE: the National Infertility 

23 Association, shall review the requirements for treat24 ment of infertility established under paragraphs (1) 

25 and (2). 


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

2 other cost-sharing or other limitations for infertility ther3 apy may not be imposed to the extent they exceed the 

4 deductibles, coinsurance, and limitations that are applied 

5 to similar services under the group health plan or health 

6 insurance coverage. 

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

8 health insurance issuer offering group health insurance 

9 coverage in connection with a group health plan, may 

10 not— 

11 ‘‘(1) deny to a participant or beneficiary eligi12 bility, or continued eligibility, to enroll or to renew 

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

14 purpose of avoiding the requirements of this section; 

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

16 to a participant or beneficiary to encourage such 

17 participant or beneficiary not to be provided infer18 tility treatments to which they are entitled under 

19 this section or to providers to induce such providers 

20 not to provide such treatments to qualified partici21 pants or beneficiaries; 

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

23 participant or beneficiary infertility treatment tech24 niques or medical treatment options relating to this 

25 section; or 


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

2 reimbursement of a provider because such provider 

3 provided infertility treatments to a qualified partici4 pant or beneficiary in accordance with this section. 

5 ‘‘(e) RULE OF CONSTRUCTION.—Nothing in this sec6 tion shall be construed to require a participant or bene7 ficiary to undergo infertility therapy. 

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

9 shall comply with the notice requirement under section 

10 713(b) of the Employee Retirement Income Security Act 

11 of 1974 with respect to the requirements of this section 

12 as if such section applied to such plan. 

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

14 Nothing in this section shall be construed to prevent a 

15 group health plan or a health insurance issuer offering 

16 group health insurance coverage from negotiating the level 

17 and type of reimbursement with a provider for care pro18 vided in accordance with this section. 

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

20 not preempt State law relating to health insurance cov21 erage to the extent such State law provides greater bene22 fits with respect to infertility treatments or prevention.’’. 

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

24 300gg–23(c)) is amended by striking ‘‘section 2704’’ 

25 and inserting ‘‘sections 2704 and 2708’’. 


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

2 part 7 of subtitle B of title I of the Employee Re3 tirement Income Security Act of 1974 is amended by 

4 adding at the end the following new section: 

5 ‘‘SEC. 715. STANDARDS RELATING TO BENEFITS FOR 

6 TREATMENT OF INFERTILITY. 

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

8 insurance issuer offering group health insurance coverage 

9 in connection with such a plan shall comply with the re10 quirements of section 2708 of the Public Health Service 

11 Act, and such requirements shall be deemed to be incor12 porated into this subsection. 

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

14 health insurance coverage in connection with a group 

15 health plan shall comply with the notice requirement 

16 under section 713(b) with respect to the requirements re17 ferred to in subsection (a) as if such section applied to 

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

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

20 1191a(a)) is amended by striking ‘‘section 711’’ and 

21 inserting ‘‘sections 711 and 714’’. 

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

23 Act is amended by inserting after the item relating 

24 to section 714 the following new item: 

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


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

2 of title XXVII of the Public Health Service Act is amend3 ed by inserting after section 2753 the following new sec4 tion: 

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

6 TREATMENT OF INFERTILITY. 

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

8 shall apply to health insurance coverage offered by a 

9 health insurance issuer in the individual market in the 

10 same manner as they apply to health insurance coverage 

11 offered by a health insurance issuer in connection with a 

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

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

14 part shall comply with the notice requirement under sec15 tion 713(b) of the Employee Retirement Income Security 

16 Act of 1974 with respect to the requirements referred to 

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

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

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

20 300gg–62(b)(2)) is amended by striking ‘‘section 2751’’ 

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

22 (c) EFFECTIVE DATES.— 

23 (1) GROUP HEALTH PLANS AND GROUP

24 HEALTH INSURANCE COVERAGE.—Subject to para25 graph (3), the amendments made by subsection (a) 


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1 apply with respect to group health plans for plan 

2 years beginning on or after the date occurring 6 

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

4 (2) INDIVIDUAL HEALTH INSURANCE COV5 ERAGE.—The amendments made by subsection (b) 

6 apply with respect to health insurance coverage of7 fered, sold, issued, renewed, in effect, or operated in 

8 the individual market on or after such date. 

9 (3) COLLECTIVE BARGAINING EXCEPTION.—In 

10 the case of a group health plan maintained pursuant 

11 to 1 or more collective bargaining agreements be12 tween employee representatives and 1 or more em13 ployers ratified before the date of enactment of this 

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

15 not apply to plan years beginning before the later 

16 of— 

17 (A) the date on which the last collective 

18 bargaining agreements relating to the plan ter19 minates (determined without regard to any ex20 tension thereof agreed to after the date of en21 actment of this Act), or 

22 (B) the date occurring 6 months after the 

23 date of the enactment of this Act. 

24 For purposes of subparagraph (A), any plan amend25 ment made pursuant to a collective bargaining 


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1 agreement relating to the plan which amends the 

2 plan solely to conform to any requirement added by 

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

4 of such collective bargaining agreement. 

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

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

7 States Code, is amended by adding at the end the fol8 lowing new subsection: 

9 ‘‘(p)(1) Each contract under this chapter which pro10 vides obstetrical benefits shall also provide (in a manner 

11 consistent with section 2708 of the Public Health Service 

12 Act) coverage for the diagnosis and treatment of infertility 

13 (as defined by such section). 

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

15 contract under this chapter, prevent the inclusion of any 

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

17 of section 2708(h) of the Public Health Service Act.’’. 

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

19 this section shall apply with respect to contracts entered 

20 into or renewed for contract years beginning at least 6 

21 months after the date of enactment of this Act. 

Æ 


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