The Affordable Care Act and Infertility FAQ
This article originally appeared on the RESOLVE website
Frequently Asked Questions about the ACA and Infertility Treatment
Updated February 17, 2014
RESOLVE Note: States with IVF mandates include: Arkansas, Connecticut, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, Rhode Island
Do the Essential Health Benefits (EHB) cover infertility treatments?
The ACA requires coverage of essential health benefits, mandating plans in the individual and small group market to cover items and services within the ten broad categories listed below:
Ambulatory patient services
Maternity and newborn care
Mental health and substance use disorder services, including behavioral health treatment
Rehabilitative and habilitative services and devices
Preventive and wellness services and chronic disease management
Pediatric services, including oral and vision care
To establish the EHB benefit package in every state, HHS asked states to define EHB based on a state-specific benchmark plan (such as the largest small group HMO in the state). If there was a benefit mandate for infertility treatments in the state enacted on or before December 31, 2011 which was applicable to the state-specific benchmark plan selected by the state, plans in the individual and small group market must include the infertility mandate for 2014 and 2015.
Does the ACA cover infertility treatments?
The ACA does not require coverage for infertility treatments. The ACA does require coverage of essential health benefits and allows states to define essential health benefits by selecting a benchmark plan from current employer offerings. Coverage of infertility treatments are required only for plans sold in a state with a mandate, provided that it includes infertility coverage in its benchmark plan.
My state has an IVF insurance mandate (states listed above). Will the mandate still be in place when the exchanges start on January 1, 2014?
The ACA requires that state-mandated benefits enacted before 2012 be considered part of the EHB package if they are covered by the benchmark plan selected by the state. As a result, for a state that requires commercial carriers to cover infertility treatments before 2012, that same requirement applies to policies sold on its exchange.
For Connecticut, Hawaii, Illinois, Massachusetts, New Jersey, and Rhode Island, HHS lists IVF as a state mandate, which means that all plans in the individual and small group market in those state will have to cover IVF to comply with EHB requirements. Arkansas selected the third largest small group plan in the state, an HMO Partners Open Access POS plan, which does not cover infertility treatments. As a result, because AR’s EHB benchmark plan does not cover IVF, IVF is not considered part of the EHB benchmark, and thus does not have to be covered by plans, although there is a mandate in the state. Maryland’s mandate already excluded the small group market so the EHB chosen by Maryland, the largest small group plan in the state, does not include the infertility mandate.
I have heard that 2014 and 2015 are “trial” years for the Exchanges. Does this mean that in 2016 the infertility mandate in my state may be reviewed or may go away?
Yes. The ACA stipulates that states may require benefits in excess of the EHB, but that states must defray the cost of these additional benefits. Beginning in 2016, if HHS changes the current approach for establishing the EHB package that states have to cover, states may be required to defray the costs of the infertility mandates. Given budgetary pressures on state budgets, states could decide to reevaluate their benefit mandates if they are financially liable for coverage of those benefits.
I live in a non-mandated state and my employer voluntarily offers infertility coverage in our employer sponsored health plan. However, they just announced that because of the implementation of the ACA beginning in 1/1/2014, they have to drop their infertility coverage. Why do they have to do this?
Rules around what benefits employers have to cover depend on the size of your employer. Employers may decide to offer benefits in excess of what is required by law. However, given many of the new requirements that are being phased in as part of the ACA, prices for some products have increased significantly. As a result, your employer may have decided to limit the scope of some benefits covered to avoid significantly increasing employee cost-sharing.
I live in a mandated state already but my employer has fewer than 50 employees so we are exempted from the law. Will I be able to get a new insurance plan that includes the mandate now that the exchanges will be in place?
If the state mandate is reflected in the benchmark plan (see question 3), plans sold on the state exchange will be subject to the fertility mandate.
I live in a mandated state already but my employer is self-insured so coverage is not included; will I be able to get coverage under the infertility mandate once the exchanges are in place?
Your employer will not have to provide coverage of infertility in their plan, since EHB requirements only apply to the individual and small group markets offered both inside and outside of the exchange. However, if your employer decides not to cover infertility, you could decide to purchase individual coverage in the exchange, which will include coverage of infertility treatments in all states where there is currently a mandate, except Arkansas and Maryland.
The infertility mandate in my state has caps on the coverage (i.e. maximum cycles or maximum dollar amount covered). I thought the ACA made “maximum out of pocket” policies illegal.
HHS has determined that quantitative “treatment limitations” such as frequency of treatment, days of coverage, or other similar limits on the scope and duration of treatment are included as part of the EHB benchmark. As a result, issuers can maintain the caps on coverage (i.e. maximum cycles or maximum dollar amount covered) when they cover infertility treatments as part of the EHB benchmark. However, given the maximum out-of-pocket (MOOP) requirements, for any state where infertility treatments are mandated, an individual’s MOOP will be capped at $6,350 for an individual policy and $12,700 for a family plan in 2014.
My state has an infertility mandate; how can I find out if the mandate is part of my state’s essential health benefits plan?
The Centers for Medicare & Medicaid Services (CMS) which oversees the Center for Consumer Information and Insurance Oversight (CCIIO), has a list of state benchmarks on its website. Select your state from the list on this website to see whether the benchmark plan covers infertility treatment.
I live in a non-mandated state but want to help get an infertility mandate passed in my state. I have heard from my state legislator that if passed, our state would have to pay for it. I don’t know what this means and wonder why our state would have to pay for this new mandate.
That is correct. Based on the current approach set forth by the Department of Health and Human Services to define the EHB in each state, only state benefit mandates passed on or before December 31, 2011 can be included as part of the EHB package. As a result, if your state decides to pass a new infertility mandate, the state will have to defray the costs of the mandate since it would not be part of the EHB.
I live in a mandated state but our infertility mandate law needs to be updated and improved. I want to help get my state legislature to change the law. Is now a good time to do this?
A state with a mandate enacted before 2012 will likely have selected a benchmark that includes coverage of infertility treatment. 1,2 Individuals interested in updating or improving the current mandate should consult with lawyers and policymakers about the implications of altering state mandates. Making updates or improvements to the mandate may not necessarily be covered by EHB given that mandates had to be enacted before December 31, 2011. Furthermore, because the EHB approach is likely to be revisited in the fall of 2014, we don’t know at this time whether the costs of mandates will have to be entirely defrayed by states beginning in 2016.
Is there anything I can do to get infertility as part of my state’s essential health benefit plan? I live in a non-mandated state.
Individuals interested in coverage of infertility treatments as a part of the state’s essential health benefit package would need to discuss options with state regulators and policymakers, as it would require the passage of a new law or potentially a petition for its inclusion once HHS begins the rulemaking process for the new benchmark approach for policy years beginning in 2016.
1 Arkansas selected the third largest small group plan in the state which does not cover infertility treatments. As a result, IVF is not considered part of the EHB benchmark, and thus does not have to be covered by plans, although there is a mandate in the state.
2 In Maryland, the state mandates that small groups must cover infertility services and requires that individual and large group plans cover in vitro fertilization. As a result, the MD benchmark plan specifically excludes IVF, but does include Infertility services.
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