II 

116TH CONGRESS 

1ST SESSION S. 1461 

To require health insurance coverage for the treatment of infertility. 

IN THE SENATE OF THE UNITED STATES 

MAY 14, 2019 

Mr. BOOKER (for himself and Mr. MENENDEZ) introduced the following bill; 

which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To require health insurance coverage for the treatment of 

infertility. 

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. 

4 This Act may be cited as the ‘‘Access to Infertility 

5 Treatment and Care Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds as follows: 

8 (1) Infertility is a medical disease recognized by 

9 the World Health Organization, the American Soci10 ety for Reproductive Medicine, and the American 


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1 Medical Association that affects men and women 

2 equally. 

3 (2) According to the Centers for Disease Con4 trol and Prevention, 1 in 8 couples have difficulty 

5 getting pregnant or sustaining a pregnancy. 

6 (3) Infertility affects a broad spectrum of pro7 spective parents. No matter what race, religion, sex8 ual orientation, or economic status one is, infertility 

9 does not discriminate. 

10 (4) According to the Centers for Disease Con11 trol and Prevention, 11 percent of women in the 

12 United States between the ages of 15 and 44 have 

13 difficulty getting pregnant or staying pregnant. 

14 Similarly, 9 percent of men in the United States be15 tween the ages of 15 and 44 experience infertility. 

16 (5) Infertility disproportionately affects individ17 uals with particular health complications. For cancer 

18 patients and others who must undergo treatments 

19 such as chemotherapy, radiation therapy, hormone 

20 therapy, or surgery that are likely to harm the re21 productive system and organs, fertility preservation 

22 becomes necessary. 

23 (6) Leading causes of infertility include chronic 

24 conditions and diseases of the endocrine or metabolic 

25 systems, such as primary ovarian insufficiency, polyVerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461

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1 cystic ovarian syndrome, endometriosis, thyroid dis2 orders, menstrual cycle defects, autoimmune dis3 orders, hormonal imbalances, testicular disorders, 

4 and urological health issues. Other causes include 

5 structural problems or blockages within the repro6 ductive system, exposure to infectious diseases, occu7 pational or environmental hazards, or genetic influ8 ences. 

9 (7) Recent improvements in therapy and cryo10 preservation make pregnancy possible for more peo11 ple than in past years. 

12 (8) Like all other diseases, infertility and its 

13 treatments should be covered by health insurance. 

14 (9) A 2017 national survey of employer-spon15 sored health plans found that 44 percent of employ16 ers with at least 500 employees did not cover infer17 tility services, and 25 percent of companies with 

18 20,000 or more employees did not cover infertility 

19 services. 

20 (10) Coverage for infertility services under 

21 State Medicaid programs is limited. The Medicaid 

22 programs of only 5 States provide diagnostic testing 

23 for women and men in all of their program eligibility 

24 pathways; the Medicaid program of only one State 

25 provides coverage for certain medications for women 


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1 experiencing infertility; and no State Medicaid pro2 grams cover intrauterine insemination or in vitro 

3 fertilization. 

4 (11) States that do not require private insur5 ance coverage of assisted reproductive technology 

6 have higher rates of multiple births. 

7 (12) The ability to have a family should not be 

8 denied to anyone on account of a lack of insurance 

9 coverage for medically necessary treatment. 

10 SEC. 3. STANDARDS RELATING TO BENEFITS FOR TREAT11 MENT OF INFERTILITY AND PREVENTION OF 

12 IATROGENIC INFERTILITY. 

13 (a) IN GENERAL.—Part A of title XXVII of the Pub14 lic Health Service Act (42 U.S.C. 300gg et seq.) is amend15 ed by inserting after section 2728 the following: 

16 ‘‘SEC. 2729A. STANDARDS RELATING TO BENEFITS FOR 

17 TREATMENT OF INFERTILITY AND PREVEN18 TION OF IATROGENIC INFERTILITY. 

19 ‘‘(a) IN GENERAL.—A group health plan or a health 

20 insurance issuer offering group or individual health insur21 ance coverage shall ensure that such plan or coverage pro22 vides coverage for— 

23 ‘‘(1) the treatment of infertility, including non24 experimental assisted reproductive technology proceVerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461

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1 dures, if such plan or coverage provides coverage for 

2 obstetrical services; and 

3 ‘‘(2) standard fertility preservation services 

4 when a medically necessary treatment may directly 

5 or indirectly cause iatrogenic infertility. 

6 ‘‘(b) DEFINITIONS.—In this section: 

7 ‘‘(1) the term ‘assisted reproductive technology’ 

8 means treatments or procedures that involve the 

9 handling of human egg, sperm, and embryo outside 

10 of the body with the intent of facilitating a preg11 nancy, including in vitro fertilization, egg, embryo, 

12 or sperm cryopreservation, egg or embryo donation, 

13 and gestational surrogacy; 

14 ‘‘(2) the term ‘infertility’ means a disease, char15 acterized by the failure to establish a clinical preg16 nancy— 

17 ‘‘(A) after 12 months of regular, unpro18 tected sexual intercourse; or 

19 ‘‘(B) due to a person’s incapacity for re20 production either as an individual or with his or 

21 her partner, which may be determined after a 

22 period of less than 12 months of regular, un23 protected sexual intercourse, or based on med24 ical, sexual and reproductive history, age, phys25 ical findings, or diagnostic testing; and 


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1 ‘‘(3) the term ‘iatrogenic infertility’ means an 

2 impairment of fertility due to surgery, radiation, 

3 chemotherapy, or other medical treatment. 

4 ‘‘(c) REQUIRED COVERAGE.— 

5 ‘‘(1) COVERAGE FOR INFERTILITY.—Subject to 

6 paragraph (3), a group health plan and a health in7 surance issuer offering group or individual health in8 surance coverage that includes coverage for obstet9 rical services shall provide coverage for treatment of 

10 infertility determined appropriate by the treating 

11 physician, including, as appropriate, ovulation induc12 tion, egg retrieval, sperm retrieval, artificial insemi13 nation, in vitro fertilization, genetic screening, intra14 cytoplasmic sperm injection, and any other non-ex15 perimental treatment, as determined by the Sec16 retary in consultation with appropriate professional 

17 and patient organizations such as the American So18 ciety for Reproductive Medicine, RESOLVE: The 

19 National Infertility Association, and the American 

20 College of Obstetricians and Gynecologists. 

21 ‘‘(2) COVERAGE FOR IATROGENIC INFER22 TILITY.—A group health plan and a health insur23 ance issuer offering group or individual health insur24 ance coverage shall provide coverage of fertility pres25 ervation services for individuals who undergo mediVerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461

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1 cally necessary treatment that may cause iatrogenic 

2 infertility, as determined by the treating physician, 

3 including cryopreservation of gametes and other pro4 cedures, as determined by the Secretary, consistent 

5 with established medical practices and professional 

6 guidelines published by professional medical organi7 zations, including the American Society of Clinical 

8 Oncology and the American Society for Reproductive 

9 Medicine. 

10 ‘‘(3) LIMITATION ON COVERAGE OF ASSISTED

11 REPRODUCTIVE TECHNOLOGY.—A group health plan 

12 and a health insurance issuer offering group or indi13 vidual health insurance coverage shall provide cov14 erage for assisted reproductive technology as re15 quired under paragraph (1) if— 

16 ‘‘(A) the individual is unable to bring a 

17 pregnancy to a live birth through minimally 

18 invasive infertility treatments, as determined 

19 appropriate by the treating physician, with con20 sideration given to participant’s or beneficiary’s 

21 specific diagnoses or condition for which cov22 erage is available under the plan or coverage; 

23 and 

24 ‘‘(B) the treatment is performed at a med25 ical facility that— 


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1 ‘‘(i) conforms to the standards of the 

2 American Society for Reproductive Medi3 cine and the Society for Assisted Repro4 ductive Technology; and 

5 ‘‘(ii) is in compliance with any stand6 ards set by an appropriate Federal agency. 

7 ‘‘(d) LIMITATION.—Cost-sharing, including deducti8 bles and coinsurance, or other limitations for infertility 

9 and services to prevent iatrogenic infertility may not be 

10 imposed with respect to the services required to be covered 

11 under subsection (c) to the extent that such cost-sharing 

12 exceeds the cost-sharing applied to similar services under 

13 the group health plan or health insurance coverage or such 

14 other limitations are different from limitations imposed 

15 with respect to such similar services. 

16 ‘‘(e) PROHIBITIONS.—A group health plan and a 

17 health insurance issuer offering group or individual health 

18 insurance coverage may not— 

19 ‘‘(1) provide incentives (monetary or otherwise) 

20 to a participant or beneficiary to encourage such 

21 participant or beneficiary not to be provided infer22 tility treatments or fertility preservation services to 

23 which such participant or beneficiary is entitled 

24 under this section or to providers to induce such 


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1 providers not to provide such treatments to qualified 

2 participants or beneficiaries; 

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

4 participant or beneficiary infertility treatments or 

5 fertility preservation technology or medical treat6 ment options relating to this section; or 

7 ‘‘(3) penalize or otherwise reduce or limit the 

8 reimbursement of a provider because such provider 

9 provided infertility treatments or fertility preserva10 tion services to a qualified participant or beneficiary 

11 in accordance with this section. 

12 ‘‘(f) RULE OF CONSTRUCTION.—Nothing in this sec13 tion shall be construed to require a participant or bene14 ficiary to undergo infertility treatments or fertility preser15 vation services. 

16 ‘‘(g) NOTICE.—A group health plan and a health in17 surance issuer offering group or individual health insur18 ance coverage shall provide notice to each participant and 

19 beneficiary under such plan regarding the coverage re20 quired by this section in accordance with regulations pro21 mulgated by the Secretary. Such notice shall be in writing 

22 and prominently positioned in any literature or cor23 respondence made available or distributed by the plan or 

24 issuer and shall be transmitted— 


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1 ‘‘(1) in the next mailing made by the plan or 

2 issuer to the participant or beneficiary; 

3 ‘‘(2) as part of any yearly informational packet 

4 sent to the participant or beneficiary; or 

5 ‘‘(3) not later than January 1, 2020, 

6 whichever is earlier. 

7 ‘‘(h) LEVEL AND TYPE OF REIMBURSEMENTS.— 

8 Nothing in this section shall be construed to prevent a 

9 group health plan or a health insurance issuer offering 

10 group or individual health insurance coverage from negoti11 ating the level and type of reimbursement with a provider 

12 for care provided in accordance with this section.’’. 

13 (b) CONFORMING AMENDMENT.—Section 2724(c) of 

14 the Public Health Service Act (42 U.S.C. 300gg–23(c)) 

15 is amended by striking ‘‘section 2704’’ and inserting ‘‘sec16 tions 2704 and 2708’’. 

17 (c) EFFECTIVE DATES.— 

18 (1) IN GENERAL.—The amendments made by 

19 subsections (a) and (b) shall apply for plan years be20 ginning on or after the date that is 6 months after 

21 the date of enactment of this Act. 

22 (2) COLLECTIVE BARGAINING EXCEPTION.— 

23 (A) IN GENERAL.—In the case of a group 

24 health plan maintained pursuant to one or more 

25 collective bargaining agreements between emVerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461

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1 ployee representatives and one or more employ2 ers ratified before the date of enactment of this 

3 Act, the amendments made by subsection (a) 

4 shall not apply to plan years beginning before 

5 the later of— 

6 (i) the date on which the last collec7 tive bargaining agreements relating to the 

8 plan terminates (determined without re9 gard to any extension thereof agreed to 

10 after the date of enactment of this Act), or 

11 (ii) the date occurring 6 months after 

12 the date of the enactment of this Act. 

13 (B) CLARIFICATION.—For purposes of 

14 subparagraph (A), any plan amendment made 

15 pursuant to a collective bargaining agreement 

16 relating to the plan which amends the plan sole17 ly to conform to any requirement added by sub18 section (a) shall not be treated as a termination 

19 of such collective bargaining agreement. 

20 SEC. 4. FEDERAL EMPLOYEES HEALTH BENEFITS PRO21 GRAM. 

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

23 States Code, is amended by adding at the end the fol24 lowing: 


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1 ‘‘(p) COVERAGE FOR DIAGNOSIS AND TREATMENT

2 OF INFERTILITY AND PREVENTION OF IATROGENIC IN3 FERTILITY.— 

4 ‘‘(1) DEFINITIONS.—In this subsection, the 

5 terms ‘infertility’ and ‘iatrogenic infertility’ have the 

6 meanings given those terms in section 2729A of the 

7 Public Health Service Act. 

8 ‘‘(2) REQUIRED COVERAGE.—A contract under 

9 this chapter shall provide, in a manner consistent 

10 with section 2729A of the Public Health Service 

11 Act— 

12 ‘‘(A) coverage for the diagnosis and treat13 ment of infertility, including nonexperimental 

14 assisted reproductive technology procedures, if 

15 such contract covers obstetrical benefits; and 

16 ‘‘(B) coverage for standard fertility preser17 vation services when a medically necessary 

18 treatment may directly or indirectly cause iatro19 genic infertility. 

20 ‘‘(3) COST.—Coverage for the diagnosis or 

21 treatment of infertility and fertility preservation 

22 services under a health benefits plan described in 

23 section 8903 or 8903a may not be subject to any co24 payment or deductible greater than the copayment 


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1 or deductible, respectively, applicable to obstetrical 

2 benefits under the plan. 

3 ‘‘(4) PREEMPTION.—Subsection (m)(1) shall 

4 not, with respect to a contract under this chapter, 

5 prevent the inclusion of any terms that, under para6 graph (2) of this subsection, are required by reason 

7 of section 2729A of the Public Health Service Act.’’. 

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

9 subsection (a) shall apply with respect to any contract en10 tered into or renewed for a contract year beginning on 

11 or after the date that is 180 days after the date of enact12 ment of this Act, and any health benefits plan offered 

13 under such a contract. 

14 SEC. 5. BENEFITS FOR TREATMENT OF INFERTILITY AND 

15 PREVENTION OF IATROGENIC INFERTILITY 

16 UNDER THE TRICARE PROGRAM. 

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

18 States Code, is amended by adding at the end the fol19 lowing new section: 

20 ‘‘§ 1110c. Obstetrical and infertility benefits 

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

22 chapter shall provide, in a manner consistent with section 

23 2729A of the Public Health Service Act— 

24 ‘‘(1) coverage for the diagnosis and treatment 

25 of infertility, including nonexperimental assisted reVerDate Sep 11 2014 22:10 May 28, 2019 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1461.IS S1461

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1 productive technology procedures, if such plan covers 

2 obstetrical benefits; and 

3 ‘‘(2) coverage for standard fertility preservation 

4 services when a medically necessary treatment may 

5 directly or indirectly cause iatrogenic infertility. 

6 ‘‘(b) COPAYMENT.—The Secretary of Defense shall 

7 establish cost-sharing requirements for the coverage of di8 agnosis and treatment of infertility and fertility preserva9 tion services described in subsection (a) that are consistent 

10 with the cost-sharing requirements applicable to health 

11 plans and health insurance coverage under section 

12 2729A(d) of the Public Health Service Act. 

13 ‘‘(c) REGULATIONS.—The Secretary of Defense shall 

14 prescribe any regulations necessary to carry out this sec15 tion. 

16 ‘‘(d) DEFINITIONS.—In this section, the terms ‘infer17 tility’ and ‘iatrogenic infertility’ have the meanings given 

18 those terms in section 2729A of the Public Health Service 

19 Act.’’. 

20 (b) CLERICAL AMENDMENT.—The table of sections 

21 at the beginning of chapter 55 of such title is amended 

22 by adding at the end the following new item: 

‘‘1110c. Obstetrical and infertility benefits.’’. 


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1 SEC. 6. TREATMENT OF INFERTILITY AND PREVENTION OF 

2 IATROGENIC INFERTILITY FOR VETERANS 

3 AND SPOUSES OR PARTNERS OF VETERANS. 

4 (a) IN GENERAL.—Subchapter II of chapter 17 of 

5 title 38, United States Code, is amended by adding at the 

6 end the following new section: 

7 ‘‘§ 1720J. Infertility treatment for veterans and 

8 spouses or partners of veterans. 

9 ‘‘(a) IN GENERAL.—The Secretary shall furnish 

10 treatment for infertility and fertility preservation services, 

11 including through the use of assisted reproductive tech12 nology, to a veteran or a spouse or partner of a veteran 

13 if the veteran, and the spouse or partner of the veteran, 

14 as applicable, apply jointly for such treatment and coun15 seling through a process prescribed by the Secretary for 

16 purposes of this section. 

17 ‘‘(b) INFERTILITY DEFINED.—In this section, the 

18 terms ‘infertility’ and ‘iatrogenic infertility’ have the 

19 meanings given those terms in section 2729A of the Public 

20 Health Service Act.’’. 

21 (b) CLERICAL AMENDMENT.—The table of sections 

22 at the beginning of chapter 17 of such title is amended 

23 by inserting after the item relating to section 1720I the 

24 following new item: 

‘‘1720J. Infertility treatment for veterans and spouses or partners of veterans.’’. 


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1 (c) REGULATIONS.—Not later than 18 months after 

2 the date of the enactment of this Act, the Secretary of 

3 Veterans Affairs shall prescribe regulations to carry out 

4 section 1720J of title 38, United States Code, as added 

5 by subsection (a). 

6 SEC. 7. REQUIREMENT FOR STATE MEDICAID PLANS TO 

7 PROVIDE MEDICAL ASSISTANCE FOR TREAT8 MENT OF INFERTILITY AND PREVENTION OF 

9 IATROGENIC INFERTILITY. 

10 (a) IN GENERAL.—Section 1905 of the Social Secu11 rity Act (42 U.S.C. 1396d) is amended— 

12 (1) in subsection (a)(4)— 

13 (A) by striking ‘‘; and (D)’’ and inserting 

14 ‘‘; (D)’’; and 

15 (B) by inserting before the semicolon at 

16 the end the following: ‘‘; and (E) services and 

17 supplies to treat infertility and prevent iatro18 genic infertility (as such terms are defined in 

19 section 2729A(b) of the Public Health Service 

20 Act) in accordance with subsection (ff)’’; and 

21 (2) by adding at the end the following new sub22 section: 

23 ‘‘(ff) REQUIREMENTS FOR COVERAGE OF INFER24 TILITY TREATMENT AND PREVENTION OF IATROGENIC

25 INFERTILITY.—For purposes of subsection (a)(4)(E), a 


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1 State shall ensure that the medical assistance provided 

2 under the State plan (or waiver of such plan) for treat3 ment of infertility and fertility preservation services com4 plies with the requirements and limitations of section 

5 2729A(c) of the Public Health Service Act in the same 

6 manner as such requirements and limitations apply to 

7 health insurance coverage offered by a group health plan 

8 or health insurance issuer.’’. 

9 (b) NO COST SHARING FOR INFERTILITY TREAT10 MENT.— 

11 (1) IN GENERAL.—Subsections (a)(2)(D) and 

12 (b)(2)(D) of section 1916 of the Social Security Act 

13 (42 U.S.C. 1396o(a)(2)(D)) are amended by insert14 ing ‘‘, services and supplies to treat infertility and 

15 provide fertility preservation services described in 

16 section 1905(a)(4)(E)’’ before ‘‘, or’’ each place it 

17 appears. 

18 (2) APPLICATION TO ALTERNATIVE COST SHAR19 ING.—Section 1916A(b)(3)(B)(vii) of the Social Se20 curity Act (42 U.S.C. 1396o–1(b)(3)(B)(vii)) is 

21 amended by inserting ‘‘ and services and supplies to 

22 treat infertility and provide fertility preservation de23 scribed in section 1905(a)(4)(E)’’ before the period. 


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1 (c) PRESUMPTIVE ELIGIBILITY FOR INFERTILITY

2 TREATMENT.—Section 1920C of the Social Security Act 

3 (42 U.S.C. 1396r–1c) is amended— 

4 (1) in the section heading, by inserting ‘‘AND

5 INFERTILITY TREATMENT’’ after ‘‘FAMILY PLANNING

6 SERVICES’’; 

7 (2) in subsection (a)— 

8 (A) by striking ‘‘State plan’’ and inserting 

9 ‘‘A State plan’’; 

10 (B) by striking ‘‘1905(a)(4)(C)’’ and in11 serting ‘‘section 1905(a)(4)(C), services and 

12 supplies to treat infertility and prevent iatro13 genic infertility described in section 

14 1905(a)(4)(E),’’; and 

15 (C) by inserting ‘‘or in conjunction with an 

16 infertility treatment service in an infertility 

17 treatment setting’’ before the period. 

18 (d) INCLUSION IN BENCHMARK COVERAGE.—Section 

19 1937(b) of the Social Security Act (42 U.S.C. 1396u– 

20 7(b)) is amended by adding at the end the following new 

21 paragraph: 

22 ‘‘(8) COVERAGE OF INFERTILITY TREATMENT

23 AND PREVENTION OF IATROGENIC INFERTILITY.— 

24 Notwithstanding the previous provisions of this sec25 tion, a State may not provide for medical assistance 


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1 through enrollment of an individual with benchmark 

2 coverage or benchmark-equivalent coverage under 

3 this section unless such coverage includes medical 

4 assistance for services and supplies to treat infer5 tility and provide fertility preservation described in 

6 section 1905(a)(4)(E) in accordance with such sec7 tion.’’. 

8 (e) EFFECTIVE DATE.— 

9 (1) IN GENERAL.—Except as provided in para10 graph (2), the amendments made by this section 

11 shall take effect on October 1, 2020. 

12 (2) DELAY PERMITTED IF STATE LEGISLATION

13 REQUIRED.—In the case of a State plan approved 

14 under title XIX of the Social Security Act which the 

15 Secretary of Health and Human Services determines 

16 requires State legislation (other than legislation ap17 propriating funds) in order for the plan to meet the 

18 additional requirement imposed by this section, the 

19 State plan shall not be regarded as failing to comply 

20 with the requirements of such title solely on the 

21 basis of the failure of the plan to meet such addi22 tional requirement before the first day of the first 

23 calendar quarter beginning after the close of the 

24 first regular session of the State legislature that 

25 ends after the 1-year period beginning with the date 


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1 of the enactment of this section. For purposes of the 

2 preceding sentence, in the case of a State that has 

3 a 2-year legislative session, each year of the session 

4 is deemed to be a separate regular session of the 

5 State legislature. 

Æ 


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