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. NAD-
LER 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 com-
mittee concerned 
A BILL 
To amend the Public Health Service Act, the Employee Re-
tirement Income Security Act of 1974, and chapter 89 
of title 5, United States Code, to require coverage for 
the treatment of infertility. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE; FINDINGS. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Family Building Act of 2009’’. 
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(b) FINDINGS.—Congress makes the following find-
ings: 
(1) Infertility is a disease affecting more than 
6,000,000 American women and men, about 10 per-
cent of the reproductive age population. 
(2) Recent improvements in therapy make preg-
nancy possible for more couples than in past years. 
(3) The majority of group health plans do not 
provide coverage for infertility therapy. 
(4) A fundamental part of the human experi-
ence is fulfilling the desire to reproduce. 
SEC. 2. STANDARDS RELATING TO BENEFITS FOR TREAT-
MENT OF INFERTILITY. 
(a) GROUP HEALTH PLANS.— 
(1) PUBLIC
HEALTH
SERVICE
ACT
AMEND-
MENT.—(A) Subpart 2 of part A of title XXVII of 
the Public Health Service Act is amended by adding 
at the end the following new section: 
‘‘SEC. 2708. STANDARDS RELATING TO BENEFITS FOR 
TREATMENT OF INFERTILITY. 
‘‘(a) REQUIREMENTS
FOR COVERAGE
OF TREAT-
MENT OF INFERTILITY.— 
‘‘(1) IN GENERAL.—In a case in which a group 
health plan, and a health insurance issuer offering 
group health insurance coverage provides coverage 
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for obstetrical services, such plan or issuer shall in-
clude (consistent with this section) coverage for 
treatment of infertility. 
‘‘(2) INFERTILITY DEFINED.—For purposes of 
this section, the term ‘infertility’ means a disease or 
condition that results in the abnormal function of 
the reproductive system, which results in— 
‘‘(A) the inability to conceive after 1 year 
of unprotected intercourse, or 
‘‘(B) the inability to carry a pregnancy to 
live birth. 
‘‘(b) REQUIRED COVERAGE.— 
‘‘(1) IN GENERAL.—A group health plan, and a 
health insurance issuer offering group health insur-
ance coverage shall provide coverage for treatment 
of infertility deemed appropriate by a participant or 
beneficiary and the treating physician. Such treat-
ment shall include ovulation induction, artificial in-
semination, in vitro fertilization (IVF), gamete 
intrafallopian transfer (GIFT), zygote intrafallopian 
transfer (ZIFT), intracytoplasmic sperm injection 
(ICSI), and any other treatment provided it has 
been deemed as ‘non-experimental’ by the Secretary 
after consultation with appropriate professional and 
patient organizations such as the American Society 
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for Reproductive Medicine, RESOLVE, and the 
American College of Obstetricians and Gyne-
cologists. 
‘‘(2) LIMITATION ON COVERAGE OF ASSISTED 
REPRODUCTIVE TECHNOLOGY.— 
‘‘(A) IN GENERAL.—In the case of assisted 
reproductive technology, coverage shall be pro-
vided if— 
‘‘(i) the participant or beneficiary has 
been unable to bring a pregnancy to a live 
birth through less costly medically appro-
priate infertility treatments for which cov-
erage is available under the insured’s pol-
icy, plan, or contract; 
‘‘(ii) the participant or beneficiary has 
not undergone 4 complete oocyte retrievals, 
except that if a live birth follows a com-
pleted oocyte retrieval, then at least 2 
more completed oocyte retrievals shall be 
covered, with a lifetime cap of 6 retrievals; 
and 
‘‘(iii) the treatment is performed at a 
medical facility that— 
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‘‘(I) conforms to the standards of 
the American Society for Reproductive 
Medicine; and 
‘‘(II) is in compliance with any 
standards set by an appropriate Fed-
eral agency. 
‘‘(B) DEFINITION
OF
ASSISTED
REPRO-
DUCTIVE TECHNOLOGY.—For purposes of this 
paragraph, the term ‘assisted reproductive tech-
nology’ includes all treatments or procedures 
that involve the handling of human egg and 
sperm for the purpose of helping a woman be-
come pregnant. Types of assisted reproductive 
technology include in vitro fertilization, gamete 
intrafallopian transfer, zygote intrafallopian 
transfer, embryo cryopreservation, egg or em-
bryo donation, and surrogate birth. 
‘‘(3) REVIEW BY THE SECRETARY.—Not later 
than 5 years after the date of enactment of the 
Family Building Act of 2009, the Secretary, in con-
sultation with the American Society for Reproductive 
Medicine and RESOLVE: the National Infertility 
Association, shall review the requirements for treat-
ment of infertility established under paragraphs (1) 
and (2). 
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‘‘(c) LIMITATION.—Deductibles, coinsurance, and 
other cost-sharing or other limitations for infertility ther-
apy may not be imposed to the extent they exceed the 
deductibles, coinsurance, and limitations that are applied 
to similar services under the group health plan or health 
insurance coverage. 
‘‘(d) PROHIBITIONS.—A group health plan, and a 
health insurance issuer offering group health insurance 
coverage in connection with a group health plan, may 
not— 
‘‘(1) deny to a participant or beneficiary eligi-
bility, or continued eligibility, to enroll or to renew 
coverage under the terms of the plan, solely for the 
purpose of avoiding the requirements of this section; 
‘‘(2) provide incentives (monetary or otherwise) 
to a participant or beneficiary to encourage such 
participant or beneficiary not to be provided infer-
tility treatments to which they are entitled under 
this section or to providers to induce such providers 
not to provide such treatments to qualified partici-
pants or beneficiaries; 
‘‘(3) prohibit a provider from discussing with a 
participant or beneficiary infertility treatment tech-
niques or medical treatment options relating to this 
section; or 
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‘‘(4) penalize or otherwise reduce or limit the 
reimbursement of a provider because such provider 
provided infertility treatments to a qualified partici-
pant or beneficiary in accordance with this section. 
‘‘(e) RULE OF CONSTRUCTION.—Nothing in this sec-
tion shall be construed to require a participant or bene-
ficiary to undergo infertility therapy. 
‘‘(f) NOTICE.—A group health plan under this part 
shall comply with the notice requirement under section 
713(b) of the Employee Retirement Income Security Act 
of 1974 with respect to the requirements of this section 
as if such section applied to such plan. 
‘‘(g) 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 pro-
vided in accordance with this section. 
‘‘(h) PREEMPTION.—The provisions of this section do 
not preempt State law relating to health insurance cov-
erage to the extent such State law provides greater bene-
fits with respect to infertility treatments or prevention.’’. 
(B) Section 2723(c) of such Act (42 U.S.C. 
300gg–23(c)) is amended by striking ‘‘section 2704’’ 
and inserting ‘‘sections 2704 and 2708’’. 
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(2) ERISA AMENDMENT.—(A) Subpart B of 
part 7 of subtitle B of title I of the Employee Re-
tirement Income Security Act of 1974 is amended by 
adding at the end the following new section: 
‘‘SEC. 715. STANDARDS RELATING TO BENEFITS FOR 
TREATMENT OF INFERTILITY. 
‘‘(a) IN GENERAL.—A group health plan and a health 
insurance issuer offering group health insurance coverage 
in connection with such a plan shall comply with the re-
quirements of section 2708 of the Public Health Service 
Act, and such requirements shall be deemed to be incor-
porated into this subsection. 
‘‘(b) NOTICE.—A health insurance issuer offering 
health insurance coverage in connection with a group 
health plan shall comply with the notice requirement 
under section 713(b) with respect to the requirements re-
ferred to in subsection (a) as if such section applied to 
such issuer and such issuer were a group health plan.’’. 
(B) Section 732(a) of such Act (29 U.S.C. 
1191a(a)) is amended by striking ‘‘section 711’’ and 
inserting ‘‘sections 711 and 714’’. 
(C) The table of contents in section 1 of such 
Act is amended by inserting after the item relating 
to section 714 the following new item: 
‘‘715. Standards relating to benefits for treatment of infertility.’’. 
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(b) INDIVIDUAL HEALTH INSURANCE.—(1) Part B 
of title XXVII of the Public Health Service Act is amend-
ed by inserting after section 2753 the following new sec-
tion: 
‘‘SEC. 2754. STANDARD RELATING TO BENEFITS FOR 
TREATMENT OF INFERTILITY. 
‘‘(a) IN GENERAL.—The provisions of section 2708 
shall apply to health insurance coverage offered by a 
health insurance issuer in the individual market in the 
same manner as they apply to health insurance coverage 
offered by a health insurance issuer in connection with a 
group health plan in the small or large group market. 
‘‘(b) NOTICE.—A health insurance issuer under this 
part shall comply with the notice requirement under sec-
tion 713(b) of the Employee Retirement Income Security 
Act of 1974 with respect to the requirements referred to 
in subsection (a) as if such section applied to such issuer 
and such issuer were a group health plan.’’. 
(2) Section 2762(b)(2) of such Act (42 U.S.C. 
300gg–62(b)(2)) is amended by striking ‘‘section 2751’’ 
and inserting ‘‘sections 2751 and 2753’’. 
(c) EFFECTIVE DATES.— 
(1) 
GROUP
HEALTH
PLANS
AND
GROUP 
HEALTH INSURANCE COVERAGE.—Subject to para-
graph (3), the amendments made by subsection (a) 
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apply with respect to group health plans for plan 
years beginning on or after the date occurring 6 
months after the date of the enactment of this Act. 
(2) INDIVIDUAL
HEALTH
INSURANCE
COV-
ERAGE.—The amendments made by subsection (b) 
apply with respect to health insurance coverage of-
fered, sold, issued, renewed, in effect, or operated in 
the individual market on or after such date. 
(3) COLLECTIVE BARGAINING EXCEPTION.—In 
the case of a group health plan maintained pursuant 
to 1 or more collective bargaining agreements be-
tween employee representatives and 1 or more em-
ployers 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— 
(A) the date on which the last collective 
bargaining agreements relating to the plan ter-
minates (determined without regard to any ex-
tension thereof agreed to after the date of en-
actment of this Act), or 
(B) the date occurring 6 months after the 
date of the enactment of this Act. 
For purposes of subparagraph (A), any plan amend-
ment made pursuant to a collective bargaining 
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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. 3. AMENDMENT TO TITLE 5, UNITED STATES CODE. 
(a) IN GENERAL.—Section 8902 of title 5, United 
States Code, is amended by adding at the end the fol-
lowing new subsection: 
‘‘(p)(1) Each contract under this chapter which pro-
vides obstetrical benefits shall also provide (in a manner 
consistent with section 2708 of the Public Health Service 
Act) coverage for the diagnosis and treatment of infertility 
(as defined by such section). 
‘‘(2) Subsection (m)(1) shall not, with respect to any 
contract under this chapter, prevent the inclusion of any 
terms which, under paragraph (1), are required by reason 
of section 2708(h) of the Public Health Service Act.’’. 
(b) EFFECTIVE DATE.—The amendment made by 
this section shall apply with respect to contracts entered 
into or renewed for contract years beginning at least 6 
months after the date of enactment of this Act. 
Æ 
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