Infertility Treatment Policy

1. Infertility Treatment Policy TMA UBO AWG 29 October 2008 ATT 8 – Infertility Policy

2. 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 ATT 8 – Infertility Policy

3. 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 ATT 8 – Infertility Policy

4. Background Why might this be an issue? • Is payment for infertility treatments—which are traditionally very expensive with low rates of success—a misuse of tax payer funds? • Is payment for infertility treatments implied political support for alternative forms of conception or assisted reproductive technology? ATT 8 – Infertility Policy

5. 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 ATT 8 – Infertility Policy

6. 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 ATT 8 – Infertility Policy

7. 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 ATT 8 – Infertility Policy

8. 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. ATT 8 – Infertility Policy

9. 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 ATT 8 – Infertility Policy

10. 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. ATT 8 – Infertility Policy

11. 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. ATT 8 – Infertility Policy

12. 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. ATT 8 – Infertility Policy

13. 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 laws • Mandate to Cover: Requires health insurance companies to provide coverage of infertility treatment as a benefit included in every policy • IVF Coverage • Exemption of IVF • Comprehensive Coverage • Preventive Services Only • Mandate to Offer: Requires health insurance companies to make available for purchase a policy which offers coverage of infertility treatment ATT 8 – Infertility Policy

14. Arkansas California* Connecticut Hawaii Illinois Louisiana Maryland Massachusetts Montana New Jersey New York Ohio Rhode Island Texas* West Virginia States with Mandated Infertility Treatment Coverage * Mandate to Offer ATT 8 – Infertility Policy

15. 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 ATT 8 – Infertility Policy

16. 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. ATT 8 – Infertility Policy

17. 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. ATT 8 – Infertility Policy

18. 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 ATT 8 – Infertility Policy

19. Legal Considerations ATT 8 – Infertility Policy

20. 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." ATT 8 – Infertility Policy

21. 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. ATT 8 – Infertility Policy

22. 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 ATT 8 – Infertility Policy

23. 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." ATT 8 – Infertility Policy

24. 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 ATT 8 – Infertility Policy

25. 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? ATT 8 – Infertility Policy