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Health Budgets & Financial Policy

ATT 8 – Infertility Policy

Infertility Treatment Policy

TMA UBO AWG

29 October 2008

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ATT 8 – Infertility Policy

Agenda• Questions Presented• Background• Current Laws and Regulation• TRICARE Policies for Coverage of Infertility

Treatment• Commercial Practices for Coverage of

Infertility Treatments• State Mandates• Legal Considerations• Discussion: Next Steps

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Questions Presented

• Should eligible TRICARE beneficiaries be charged for infertility treatments?– No, “infertility treatment” is a TRICARE covered

benefit. However, there are exceptions regarding what “infertility treatment” services are covered benefits

• Are there DoD rates for “pay patients” that may receive infertility services at an MTF?– Yes

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Background

Why might this be an issue?

1) Is payment for infertility treatments—which are traditionally very expensive with low rates of success—a misuse of tax payer funds?

2) Is payment for infertility treatments implied political support for alternative forms of conception or assisted reproductive technology?

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Background cont’d

• Statistics: The Scope of the Issue– Number of women aged 15-44 with impaired ability to

have children: 6.1 million

– Number of women who've ever used infertility services: 9.2 million

– Number of married couples that are infertile: 2.1 million

– Number of women using infertility services: 9.3 million

Centers for Disease Control and Prevention, National Center for Health Statistics

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Background cont’d

• Social Impacts– Infertility interferes with a couple's ability to

participate in "one of the most fundamental and highly valued human activities - building a family"

– Infertility is a "major life crisis" and can cause depression and feelings of anger, frustration, and helplessness.

– Persons who experience infertility often isolate themselves from their friends, families, work and society at large

– Improvements in infertility treatments are making it possible for more infertile couples to have a child

Washington University Hour of Law & Policy, 2007

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Current Law • 10 USC 1074(d):

– Female members, and former members of the uniformed services entitled to medical care under section 1074 or 1074a of this title shall also be entitled to primary and preventive health care services for women as part of such medical care.

– The phrase “primary and preventive health care services for women” means health care services, including related counseling services, provided to women with respect to the following:

(4) Infertility and sexually transmitted diseases, including prevention.

• 10 USC 1077(a)(13):– Benefit also applies to eligible TRICARE family

member beneficiaries

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Current Federal Regulation

• 32 CFR 199.4 – Exclusions. The family planning benefit does not

include…• Services and supplies related to noncoital

reproductive technologies, including but not limited to artificial insemination (including any costs related to donors or semen banks), in-vitro fertilization and gamete intrafallopian transfer.

• However, once a TRICARE beneficiary becomes pregnant, whether by natural or artificial means, the prenatal and postnatal services connected with that pregnancy are covered by TRICARE.

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What Is Covered?

• Infertility is often the result of a physical condition and TRICARE coverage extends to the medically necessary services used to diagnose, monitor, or treat those physical problems

• Including:– Diagnostic Testing– Surgical Intervention– Hormone Therapy

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Current TRICARE Policies

• TRICARE Policy Manual—Male Genital System, Ch. 4, Sec.15

– Infertility testing and treatment, including correction of the physical cause of infertility may be cost-shared…

• Diagnostic Services may include semen analysis, hormone evaluation, chromosomal studies, immunologic studies, special and sperm function tests, and/or bacteriologic investigation. T

• Therapy may include, but is not limited to, hormonal treatment, surgery, antibiotics, administration of HCG, and/or radiation therapy, depending upon the cause.

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Current TRICARE Policies cont’d

• TRICARE Policy Manual—Female Genital System, Ch. 4, Sec. 17.1

– Services and supplies required in the diagnosis and treatment of illness or injury involving the female genital system are covered. Infertility testing and treatment, including correction of the physical cause of infertility, are covered under this provision.

– This does not include artificial insemination, which is excluded from coverage.

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Commercial Insurance Practices

• Most insurance companies specifically exclude fertility treatments from coverage because treatments can become so expensive

• Others provide limited coverage, such as covering a set number of intrauterine inseminations (IUIs) or in vitro fertilization (IVF) attempts.

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Legal Mandates

• Federal law does not require insurance coverage for infertility treatment– While the American Society for Reproductive Medicine (ASRM)

and the American College of Obstetricians and Gynecologists (ACOG) recognize infertility as a disease resulting abnormal function of the reproductive system, Congress does not

• 15 states have mandatory infertility insurance coverage laws1) Mandate to Cover: Requires health insurance companies to

provide coverage of infertility treatment as a benefit included in every policy

1) IVF Coverage2) Exemption of IVF3) Comprehensive Coverage4) Preventive Services Only

2) Mandate to Offer: Requires health insurance companies to make available for purchase a policy which offers coverage of infertility treatment

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States with Mandated Infertility Treatment Coverage

Arkansas

California*

Connecticut

Hawaii

Illinois

Louisiana

Maryland

Massachusetts

Montana

New Jersey

New York

Ohio

Rhode Island

Texas*

West Virginia

* Mandate to Offer

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Example: IVF Coverage

• Arkansas and Maryland mandate coverage of IVF but specify that a spouse's sperm be used for fertilization. In addition, Maryland allows insurance companies to limit their coverage to 3 IVF attempts per live birth and sets a maximum level of coverage of $100,000

• Texas law also requires that patients must have a continuous 5 year history of infertility and have tried other treatments

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Example: Exemption of IVF

• California requires insurance companies to offer coverage of infertility treatments, including diagnostic tests and medication. IVF is excluded from coverage but gamete intrafallopian transfer (GIFT) is included.– Patients are only eligible for treatment after 1 year of

infertility OR if their infertility is caused by a medically recognized condition.

• In New York, infertility coverage is only available for patients between the ages of 21 and 24. Diagnostic tests and infertility procedures, such as tubal surgery and infertility drugs are covered but coverage for IVF, GIFT, zygote intrafallopian transfer (ZIFT), or reversal of voluntary sterilization is not required.

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Example: Comprehensive Coverage

• Illinois requires insurance policies that cover more than twenty-five people to provide coverage for the diagnosis and treatment of infertility after 1 year of infertility. IVF, GIFT, and ZIFT are covered, but only after less expensive treatments have failed.

• Rhode Island mandates that insurers and HMOs provide coverage for the "medically necessary expenses of diagnosis and treatment of infertility" and allows co-payments which do not exceed 20%. Coverage is limited to married individuals.

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Example: Preventive Services Only

• Montana, Ohio, and West Virginia require HMOs to cover infertility services as part of a plan's "preventative health care services." – The statutes only mandate the coverage of

"preventative" services and do not specify which services are to be included

– Therefore, it is unlikely that any form of assisted reproductive technology is covered since they do not prevent infertility, but, rather, are designed to remedy the problem of infertility

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Legal Considerations

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Reproduction as a Disability

• The Americans with Disabilities Act (ADA) prohibits employers from discriminating against “qualified individuals with a disability” in the “terms and conditions, and privileges of employment” including benefits such as employer provided health insurance– “Disability” is defined as a physical or mental impairment that

substantially limits one or more of the major life activities of such individual

• Bragdon v. Abbott (1998)– The Supreme Court declared that reproduction was a major

life activity within the meaning of the ADA because "reproduction and the sexual dynamics surrounding it are central to the life process itself."

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Infertility as a Disability

• Saks v. Franklin Covey Co. (2000)– The first case to test how the Bragdon decision

applied to an infertile person's standing as a disabled person under the ADA

– The district court held that infertility is a disability within the meaning of the ADA

• The court, however, also held that the insurance plan did not violate the ADA because it offered the same insurance coverage to all its employees, both fertile and infertile.

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Pregnancy Discrimination Act

• Title VII of the Civil Rights Act of 1964 prohibits employment practices that "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex “

• In 1978, Congress passed the Pregnancy Discrimination Act (PDA), which amended Title VII's definition of the phrase "because of sex" to include discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions“

– The Supreme Court has held that the PDA applied to health insurance benefits and therefore insurance plans that single out pregnancy-related benefits for exclusion are discriminatory

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Pregnancy Discrimination Act cont’d

• The Supreme Court has not ruled on whether infertility is included in the PDA's definition of "related medical conditions”

• Infertility is included in the PDA’s definition of “related medical conditions”…Pacourek v. Inland Steel Co. (1994) – The court held that a woman's medical condition which

prevents her from becoming pregnant naturally is a "related medical condition" under the PDA.

– Noting the expansive language of the PDA, the court stated that the term "related" was a "generous choice of wording, suggesting that interpretation should favor inclusion rather than exclusion in the close cases."

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Pregnancy Discrimination Act cont’d

• Infertility is not included in the PDA’s definition of “related medical conditions”…

Krauel v. Iowa Methodist Medical Ctr (1996)– The court ruled that the phrase "related medical conditions" in the

PDA referred only to pregnancy and childbirth

– The court distinguished pregnancy and  childbirth, which occur after conception, from infertility, which prevents conception. Based on this distinction, the court concluded that infertility is not a medical condition protected by the PDA

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Discussion: Next Steps

• Do the current laws, regulation, and TRICARE policies present enough evidence regarding what infertility services are covered benefits in order to write a UBO billing policy?– If not, request formal clarification from

OCMO

• Is there a need to reconsider current policies?