I
107TH CONGRESS
1ST SESSION
H. R. 389
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 31, 2001
Mr. WEINER (for himself, Mr. BENTSEN, Mr. ANDREWS, Mr. ENGEL, Mr.
FRANK, Mr. GUTIERREZ, Mr. PRICE of North Carolina, Ms. WOOLSEY,
Mr. DAVIS of Illinois, Ms. ESHOO, Mr. FROST, Mrs. LOWEY, Mr. MEE-
HAN, Mr. SANDERS, and Mr. WYNN) introduced the following bill; which
was referred to the Committee on Energy and Commerce, and in addition
to the Committees on Education and the Workforce, and Government Re-
form, 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 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 2001’’.
(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. 2707. 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
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
of Health and Human Services after consultation
with appropriate professional and patient organiza-
tions such as the American Society for Reproductive
Medicine, RESOLVE, and the American College of
Obstetricians and Gynecologists.
‘‘(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;
‘‘(iii) the treatment is performed at a
medical facility that—
‘‘(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 OF HEALTH
AND
HUMAN
SERVICES.—Not later than 5 years
after the date of enactment of the Family Building
Act of 2001, the Secretary of Health and Human
Services, in consultation with the American Society
for Reproductive Medicine, RESOLVE, and the Na-
tional Infertility Association shall review the require-
ments for treatment of infertility established under
paragraphs (1) and (2).
‘‘(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
‘‘(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 2707’’.
(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. 714. 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 2707 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 713 the following new item:
‘‘Sec. 714. Standards relating to benefits for treatment of infertility.’’.
(b) INDIVIDUAL HEALTH INSURANCE.—(1) Part B
of title XXVII of the Public Health Service Act is amend-
ed by inserting after section 2752 the following new sec-
tion:
‘‘SEC. 2753. STANDARD RELATING TO BENEFITS FOR
TREATMENT OF INFERTILITY.
‘‘(a) IN GENERAL.—The provisions of section 2707
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)
apply with respect to group health plans for plan
years beginning on or after January 1, 2002.
(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) January 1, 2002.
For purposes of subparagraph (A), any plan amend-
ment 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.