Health Insurers FAQs: IVF and Fertility Preservation Law Q&A Guidance | Department of Financial Services

Chapter 57 Part I of the Laws of 2019 included several changes to insurance law provisions related to health insurance coverage for in vitro fertilization (IVF) and fertility preservation services.

fiv – applicability

q-1. When does the IVF law come into effect?

Reading: Which insurance covers ivf in ny

the ivf law takes effect on January 1, 2020 and applies to policies and contracts issued or renewed in new york after that date.

q-2. What insurance policies and contracts are subject to this law?

new york insurance law §§ 3221(k)(6)(c) and 4303(s)(3) require large group insurance contracts and policies that provide medical coverage, major medical coverage, or similar comprehensive and delivered or issued for delivery in new york to cover three cycles of ivf used in the treatment of infertility. large group means a group of more than 100 employees.

q-3. Does the IVF law apply to protected health plans?

yes. The IVF law applies to protected health plans.

q-4. Does the IVF law apply to self-funded Erisa plans?

not. the ivf law does not apply to self-funded erisa plans.

ivf – covered services

q-5. Are there prerequisites or conditions for approval of IVF coverage?

An insured seeking IVF must be diagnosed with infertility, which is defined as a disease or condition characterized by the inability to impregnate another person or to conceive, due to the inability to establish a clinical pregnancy after 12 months of intercourse regular and unprotected sex. intercourse or therapeutic donor insemination, or after six months of regular unprotected intercourse or therapeutic donor insemination for a woman 35 years of age or older. Earlier evaluation and treatment may be warranted based on a person’s medical history or physical findings.

q-6. what ivf services should be covered?

Coverage for three IVF cycles is required by law, including all treatments beginning when preparative medications for ovarian stimulation are administered for oocyte retrieval with the intention of undergoing IVF via fresh embryo transfer or Administer medications for endometrial preparation with the intention of undergoing IVF via frozen embryo transfer.

q-7. Does the IVF law require prescription drug coverage in connection with IVF services if the large group health plan does not include a prescription drug benefit?

yes. Medications, including prescription drugs, are covered under the IVF benefit. New York Insurance Law §§ 3221(k)(6)(c)(vii) and 4303(s)(3)(g) define an IVF “cycle” as any treatment that begins when preparative medications are administered for ovarian stimulation for oocyte retrieval with the intention of undergoing IVF via fresh embryo transfer or administering medications for endometrial preparation with the intention of undergoing IVF via frozen embryo transfer.

q-8. Is the freezing and/or storage of oocytes or embryos covered as part of IVF services?

yes. Issuers must cover storage of oocytes and/or embryos in connection with a planned in vitro fertilization procedure if medically necessary until the required three IVF cycles are provided.

q-9. Does the retrieval of oocytes with the intention of freezing embryos and the planned and imminent first implantation of frozen embryos resulting from the retrieved oocytes count as one IVF cycle or two IVF cycles?

the retrieval of oocytes, the creation and freezing of embryos, and the planned and imminent first implantation of those frozen embryos when part of an insured’s IVF treatment plan counts as one cycle towards the three-cycle limit in coverage of IVF

q-10. Does a frozen embryo transfer cycle performed without oocyte retrieval count towards the three-cycle limit on IVF coverage?

yes. The law defines “cycle” as any treatment that begins when preparative medications for ovarian stimulation are administered for oocyte retrieval with the intention of undergoing IVF using fresh embryo transfer or endometrial preparation medications are administered with the intend to undergo IVF using a frozen embryo embryo transfer.

q-11. Does oocyte retrieval under the fertility preservation benefit count as an IVF cycle?

not. Fertility preservation services are a separate benefit to preserve fertility when medical treatment will directly or indirectly result in iatrogenic infertility and do not count toward the three cycle limit of IVF benefits.

ivf – shared costs & limitations

q-12. Can IVF services be subject to deductibles, copays, or coinsurance?

yes. Cost sharing, such as deductibles, copayments, and coinsurance, may be imposed on IVF services, as long as the cost sharing is consistent with other benefits in the policy or contract.

q-13. Does the law allow annual dollar limitations on IVF coverage?

not. Issuers cannot impose annual dollar limits on IVF services.

q-14. Does the law allow lifetime limitations on IVF coverage?

yes. Issuers may limit coverage to three IVF cycles during the life of the insured. Issuers cannot count cycles paid for by the member out of pocket or cycles covered by other issuers toward the three-cycle limit. however, a cycle covered by the emitter that was started, but not completed, counts toward the three-cycle limit.

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q-15. Are age restrictions allowed for IVF coverage?

not. No age restrictions are allowed for IVF coverage. in addition, age restrictions are no longer allowed for any other covered infertility services.

q-16. Are issuers required to cover IVF treatment for people who have undergone voluntary sterilization procedures?

not. Issuers are not required to cover procedures to reverse a prior voluntary sterilization procedure or infertility treatment for a person in connection with such reversal.

q-17. Will IVF treatments completed before January 1, 2020 count towards the three-cycle lifetime limit?

not. Any treatment completed before January 1, 2020 will not count towards the IVF law’s lifetime limit of three cycles.

q-18. Can an issuer limit IVF coverage to in-network providers?

If an issuer only provides coverage for in-network benefits (for example, an epo or hmo) under a policy or contract, coverage may be limited to in-network providers for ivf unless the issuer does not have an in-network provider with the appropriate training and knowledge to meet the member’s needs. If the policy or contract provides coverage for out-of-network services (eg, a ppo or pos), coverage for out-of-network IVF services must also be provided.

ivf – medical necessity & medication forms

q-19. Does the law allow prior authorization for IVF coverage?

yes. Issuers may require prior authorization for IVF services.

q-20. Does the law allow IVF services to be reviewed for medical necessity?

yes. however, issuers are prohibited from discriminating based on the insured’s expected length of life, current or anticipated disability, degree of medical dependency, perceived quality of life or other health conditions, or personal characteristics, including age, sex, sexual orientation, marital status, or gender identity.

q-21. Can issuers impose formulary requirements on IVF-related prescription drugs?

yes. IVF prescription drugs may be subject to the issuer’s formulary requirements. however, any plan design that limits coverage to prescription drugs on the issuer’s formulary drug list must comply with the formulary exception process at 45 cfr § 156.122 and insurance law §§ 3242 and 4329, and any other laws or requirements applicable to prescription drug coverage (for example, prohibition of more than three tiers or requirements regarding retail pharmacies).

fiv – coverage coordination

q-22. Part of the IVF process includes the collection of sperm. Should that service be covered as part of the member’s IVF coverage, or should it be part of the spouse’s or partner’s coverage?

sperm collection is part of the IVF benefit. however, if the woman and her partner have IVF coverage, coverage for collection can be coordinated under the coordination of benefits rules.

q-23. If an insured uses his or her IVF benefit but did not exhaust the three-cycle limit when covered by Issuer A, has embryos being stored, and then changes insurance coverage from Issuer A to Issuer B, what are the responsibilities of the insured? sender a and the sender? b for coverage of storage costs?

once the insured’s insurance policy or contract ends, the issuer would no longer be responsible for storage costs. Issuer B would be required to provide coverage for storage costs if the insured is determined to be eligible for IVF benefits under the insurance policy or contract with Issuer B.

fertility preservation coverage – applicability

q-1. When does the fertility preservation law go into effect?

The Fertility Preservation Act goes into effect on January 1, 2020 and applies to policies and contracts issued or renewed in New York on or after that date.

q-2. What insurance policies and contracts are subject to this law?

new york insurance law §§ 3216(i)(13)(c), 3221(k)(6)(c) and 4303(s)(3) require individual, small group insurance policies and large or contracts that provide hospital, surgical and medical, major medical or comprehensive care and are delivered or issued for delivery in new york to cover fertility preservation services for people with iatrogenic infertility.

q-3. Does the fertility preservation law apply to protected health plans?

yes. the fertility preservation law applies to protected health plans.

q-4. does the fertility preservation act apply to self-funded erisa plans?

not. the fertility preservation act does not apply to self-funded erisa plans.

fertility preservation coverage: covered services

q-5. When are fertility preservation services required to be covered?

new york insurance law §§ 3216(i)(c)(i), 3221(k)(6)(c)(v)(ii), and 4303(s)(3)(e)( ii) ) require coverage for standard fertility preservation services for individuals when a medical treatment will directly or indirectly result in “iatrogenic infertility,” which is an impairment of fertility from surgery, radiation, chemotherapy, or other medical treatment that affects organs or reproductive processes.

q-6. Are fertility preservation services covered for members who are about to undergo gender-affirming care for the treatment of gender dysphoria?

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yes, if medical treatment for gender dysphoria will directly or indirectly result in “iatrogenic infertility,” which is an impairment of fertility from surgery, radiation, chemotherapy, or other medical treatment that affects the reproductive organs or processes.

q-7. What fertility preservation services should be covered?

Standard fertility preservation services are required to be covered. These services include the collection, freezing, preservation, and storage of eggs or sperm, and other standard services that are not experimental or investigational.

q-8. If an insured has a condition that may require treatment that causes iatrogenic infertility, how long before treatment will an issuer be required to cover fertility preservation services?

An issuer may review fertility preservation services for medical necessity. as such, an issuer may consider the recommended treatment plan as part of that review.

q-9. Does the fertility preservation law require prescription drug coverage in connection with fertility preservation services if the large group health plan does not include a prescription drug benefit?

yes. The law requires coverage for standard fertility preservation services when medical treatment would, directly or indirectly, cause iatrogenic infertility. standard fertility preservation services include the use of prescription drugs to collect eggs.

fertility preservation coverage – cost sharing & limitations

q-10. Can fertility preservation services be subject to deductibles, copays, or coinsurance?

yes. Cost sharing, such as deductibles, copayments, and coinsurance, may be imposed on fertility preservation services, as long as the cost sharing is consistent with other benefits in the policy or contract.

q-11. Does the law allow annual dollar limitations on fertility preservation services?

not. issuers cannot impose annual dollar limits on fertility preservation services.

q-12. Does the law allow lifetime limitations on fertility preservation services?

not. issuers cannot impose lifetime limitations on fertility preservation services.

q-13. Are age restrictions allowed for fertility preservation services?

not. No age restrictions are allowed for fertility preservation services. in addition, age restrictions are no longer allowed for any other covered infertility services.

q-14. Can issuers limit the duration of storage of eggs or sperm?

the fertility preservation law does not include a specific limit on the duration of storage of eggs or sperm. however, issuers may review services for medical necessity.

q-15. Is IVF required as a fertility preservation service?

not. IVF is not required as a fertility preservation service.

q-16. Can an issuer limit coverage for fertility preservation services to in-network providers?

If an issuer only provides coverage for in-network benefits (for example, an epo or hmo) in a policy or contract, coverage may be limited to in-network providers for fertility preservation services unless the issuer does not have a network provider with adequate training and experience to meet the needs of the insured. If the policy or contract provides coverage for out-of-network services (for example, a ppo or pos), coverage for out-of-network fertility preservation services must also be provided.

fertility preservation coverage – medical necessity & medication forms

q-17. Does the law allow prior authorization for fertility preservation services?

yes. issuers may require prior authorization for fertility preservation services.

q-18. Does the law allow fertility preservation services to be reviewed for medical necessity?

yes. however, issuers are prohibited from discriminating based on the insured’s expected length of life, present or anticipated disability, degree of medical dependency, perceived quality of life or other health conditions, or personal characteristics, including age, sex, sexual orientation, marital status, or gender identity.

q-19. Can issuers impose formulary requirements on prescription drugs related to fertility preservation services?

yes. medications prescribed for fertility preservation services may be subject to the issuer’s formulary requirements. however, any plan design that limits coverage to prescription drugs on the issuer’s formulary drug list must comply with the formulary exception process at 45 cfr § 156.122 and insurance law §§ 3242 and 4329, and any other laws or requirements applicable to prescription drug coverage (for example, prohibition of more than three tiers or requirements regarding retail pharmacies).

fertility preservation – coverage coordination

q-20. If an insured uses their fertility preservation services benefit and has eggs or sperm that are currently in storage when covered by Issuer A, and then changes insurance coverage from Issuer A to Issuer B, what are the responsibilities of the insured? sender a and sender b for storage? costs?

once the insured’s insurance policy or contract ends, the issuer would no longer be responsible for storage costs. Issuer B would be required to provide coverage for storage costs if the insured is determined to be eligible for fertility preservation benefits under the insurance policy or contract with Issuer B.

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