Q&A on New Infertility Treatment Coverage Mandate for Fully Insured Plans

On December 3, 2019, the Department of Financial Services published Q&A guidance on the new in-vitro fertilization (IVF) and fertility preservation law that took effect on January 1, 2020. The new law, passed earlier in 2019, applies to fully insured plans issued in New York, and requires large groups (100+ employees) to provide coverage for three cycles of IVF used in the treatment of infertility. That coverage may be subject to appropriate annual deductibles and coinsurance, and “infertility” is defined as a disease or condition characterized by the incapacity to impregnate another person or to conceive, defined by the failure to establish a clinical pregnancy after 12 months of regular, unprotected sexual intercourse or therapeutic donor insemination, or after six months of regular, unprotected sexual intercourse or therapeutic donor insemination for a female 35 years of age or older. A “cycle” is defined as all treatment that starts either when preparatory medications are administered for ovarian stimulation for oocyte retrieval with the intent of undergoing IVF using a fresh embryo transfer, or when medications are administered for endometrial preparation with the intent of undergoing IVF using a frozen embryo transfer.

The Q&A provides some clarification on the applicability of the law (it applies to grandfathered plans, but not self-funded plans), and IVF and fertility preservation relating to covered services, cost-sharing (deductibles and coinsurance), medical necessity and drug formularies, and coordination of coverage. Of interest for IVF coverage, the Q&A clarifies that medications, including prescription drugs, are covered under the IVF benefit, and that carriers must cover egg and/or embryo storage if medically necessary until the three required IVF cycles are provided. Two questions confirm that the law does not permit annual dollar limits, but that it would allow lifetime limitations (limit could be three cycles of IVF over the life of the insured). The Q&A also states that age restrictions are not permitted for IVF coverage, and that any IVF treatments completed prior to January 1, 2020, will not count toward the IVF law’s three-cycle per lifetime limit.

Of interest for fertility preservation coverage, the Q&A confirms that standard fertility preservation services that must be covered include the collection, preservation, and storage of ova or sperm, and that the law requires coverage for standard fertility preservation services when medical treatment would directly or indirectly cause iatrogenic infertility. The law allows carriers to require prior authorization for fertility preservation services, and impose formulary requirements on prescription drugs (with some limitations under other related New York laws).

The Q&A also states that the law does not permit annual or lifetime dollar limitations on fertility preservation services, and that there can be no age restrictions on coverage. According to the Q&A, carriers can limit fertility preservation coverage only to in-network providers (unless the carrier doesn’t have an in-network provider with the appropriate training and expertise to meet the needs of the insured individual).

Employers with fully insured plans in New York should review the Q&A and work with carriers with regard to coverage for their employees. While the requirements are on the carrier, employers should be prepared to address questions from employees regarding their IVF and fertility preservation coverage.

Q&A Guidance »
Press Release »