Health Insurance Coverage for Infertility Services, Fertility Preservation Services, and Health Care Services Related to Surrogacy

Q-1.  What types of insurance coverage does this guidance apply to?
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This guidance applies to comprehensive individual, small group, and large group health insurance policies issued in New York. If your employer bought your policy in another state, contact your employer because the protections described below might not apply.

Q-2. Does this guidance apply to self-funded employer coverage?
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No.  New York insurance protections do not apply if your employer self-funds the coverage, as many large employers do.  Self-funded coverage means that your employer is responsible for paying the claims for your health care services instead of an insurer.   

Q-3. Does this guidance apply to Medicaid managed care coverage?
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No.  If you have Medicaid managed care coverage, contact the NYS Department of Health at (800) 206-8125 for information about your coverage or visit the NYS Department of Health website.

Q-4. Does this guidance apply to Essential Plan coverage?
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No. If you have Essential Plan coverage, contact the NY State of Health at (855) 355-5777 for information about your coverage or visit the NY State of Health: The Official Health Plan Marketplace.

Q-5. Does this guidance apply to Medicare coverage?
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No. If you have Medicare, check with the Centers for Medicare & Medicaid Services (CMS) at (800) MEDICARE, the Medicare Rights Center at (800) 333-4114 or www.medicare.gov.

Questions About Health Insurance Coverage for Infertility and Fertility Preservation Services

Q-6. What infertility treatments are covered under my health insurance policy?
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Basic infertility treatments must be covered under individual, small group, and large group comprehensive health insurance policies when you meet the definition of infertility.  This includes coverage for the diagnosis and treatment of correctable medical conditions causing infertility and for other basic infertility treatments such as intrauterine insemination. 

Large group comprehensive health insurance policies must also cover three cycles of in-vitro fertilization (IVF) used to treat infertility and prescription drugs that are prescribed for the IVF treatment.  Large group means a group of more than 100 employees.

Q-7. What is the definition of infertility?
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Infertility means 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, for a female age 35 years of age or older, after six months of regular, unprotected sexual intercourse or therapeutic donor insemination.  Earlier evaluation and treatment may be warranted based on an individual’s medical history or physical findings. 

Q-8. Are fertility preservation services required to be covered and, if so, which services?
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Yes, but only in certain situations.  Your insurer must cover standard fertility preservation services when a medical treatment will directly or indirectly result in “iatrogenic infertility,” which is an impairment of fertility by surgery, radiation, chemotherapy, or other medical treatment affecting reproductive organs or processes. 

Standard fertility preservation services required to be covered include the collecting, freezing, preserving, and storing of ova or sperm, prescription drugs, and other standard services that are not experimental or investigational.

Q-9. I am planning to have gender affirming care for the treatment of gender dysphoria.  Are fertility preservation services covered?
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Yes, but only if the medical treatment for gender dysphoria will directly or indirectly result in “iatrogenic infertility,” which is an impairment of fertility by surgery, radiation, chemotherapy, or other medical treatment affecting reproductive organs or processes. 

Q-10. Is IVF required to be covered as a fertility preservation service?
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No. IVF is not required to be covered as a fertility preservation service.

Q-11. Can my insurer limit the duration of the storage for the ova or sperm under my fertility preservation benefit?
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The fertility preservation law does not include a specific limit on the duration of storage for ova or sperm.  However, your insurer may review the services for medical necessity.  Also, your insurer is not required to pay for services once you are no longer covered under the insurance policy.

Q-12. Are there protections from discrimination for LGBTQ consumers for infertility services, IVF, and fertility preservation services?
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Yes. Your insurer is prohibited from discriminating based on your personal characteristics, including age, sex, sexual orientation, marital status, or gender identity.  Your insurer is also prohibited from discriminating based on your expected length of life, present or predicted disability, degree of medical dependency, perceived quality of life or other health conditions.

Q-13. Can my insurer require me to pay out-of-pocket for therapeutic donor insemination procedures to prove infertility when I can’t conceive without the treatment due to my sexual orientation or gender identity?
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No. Your insurer may not require you to pay for therapeutic donor insemination procedures to prove infertility if you are unable to conceive due to your sexual orientation or gender identity.

Q-14. Is my insurer required to immediately cover my IVF treatment?
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No. Insurers that cover IVF procedures (currently, only under policies issued to large groups) may consider whether basic infertility treatments (such as intrauterine insemination procedures) would be medically appropriate for you to try before covering IVF.

Q-15. Is freezing and/or storage of oocytes or embryos covered as part of IVF services?
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Yes.  If you have large group coverage, insurers must cover oocyte and/or embryo storage in connection with an intended in-vitro fertilization procedure if medically necessary until the three required IVF cycles are provided.  Insurers are not required to coverage storage costs under your IVF benefit after the third IVF cycle.

Q-16. Will I have to pay deductibles, copayments, or coinsurance for infertility services, IVF, and fertility preservation services?
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Yes.  You may be required to pay cost-sharing such as deductibles, copayments, and coinsurance for infertility services, IVF, and fertility preservation services.  Check your health insurance policy.  The cost-sharing for these services must be consistent with other benefits in your health insurance policy.

Q-17. Are there annual dollar limitations on infertility services, IVF coverage, and fertility preservation services?
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No.  Your insurer may not place annual dollar limits on infertility services, IVF, and fertility preservation services.

Q-18. Are there lifetime limitations on infertility services (other than IVF) and fertility preservation services?
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No. Your insurer may not impose lifetime limitations on infertility services and fertility preservation services.

Q-19. Are there lifetime limitations on IVF coverage?
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Yes. Your insurer may limit coverage to three cycles of IVF. A cycle that began, but was not completed, counts towards the three-cycle limit. Check your health insurance policy.

Q-20. Are age restrictions permitted for insurance coverage of infertility, IVF, and fertility preservation services
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Age restrictions are not permitted for insurance coverage of infertility, IVF, and fertility preservation services

Q-21. Can my insurer require preauthorization for infertility services, IVF, and fertility preservation services?
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Yes. Insurers may require preauthorization for infertility services, IVF, and fertility preservation services.

Q-22. Can my insurer review infertility services, IVF, and fertility preservation services for medical necessity?
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Yes. However, insurers are prohibited from discriminating based on your expected length of life, present or predicted 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-23. Can there be formulary requirements on prescription drugs related to infertility services, IVF, and fertility preservation services?
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Yes. Prescription drugs for infertility services, IVF, and fertility preservation services may be subject to your insurer’s formulary requirements. However, your insurer must have a formulary exception process for you to request coverage of an off-formulary drug.

Q-24. Can my insurer limit coverage of infertility services, IVF, and fertility preservation services to in-network providers?
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Yes. If a health insurance policy only provides coverage for in-network benefits (e.g., an EPO or HMO), then coverage may be limited to in-network providers unless your insurer does not have an in-network provider with the appropriate training and expertise. If your health insurance policy provides coverage for out-of-network services (e.g., a PPO or POS), then coverage for out-of-network infertility services, IVF, and fertility preservation services must also be provided.

Q-25. Where can I find additional information?
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DFS recently issued guidance to insurers regarding health insurance coverage for infertility treatments regardless of sexual orientation or gender identity.

Q-26. My insurer is refusing to provide coverage of infertility treatments, IVF, or fertility preservation services. What should I do?
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If you believe that you are being inappropriately denied coverage of infertility treatments, IVF (for large group coverage), or fertility preservation services, you should contact DFS to file a complaint.

Questions about Maternity Care and Health Care Services Related to Surrogacy

Q-1. If I am acting as a surrogate, is my insurer required to cover maternity care for me, including prenatal care?
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Yes. Maternity care is a mandated benefit that must be covered under a comprehensive health insurance policy, regardless of whether you are acting as a surrogate, and this includes prenatal care and inpatient hospital care.

Q-2. If I receive money for acting as a surrogate, is my insurer permitted to request reimbursement from me for maternity care, including prenatal care, that is covered under my health insurance policy?
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No. Maternity care, including prenatal care, is a mandated benefit that must be covered under a comprehensive health insurance policy, and your insurer may not request reimbursement from you if you are acting as a surrogate. You will, however, be responsible for the copayments, coinsurance, and deductible listed in your health insurance policy for maternity care. Prenatal care that is a preventive service is generally covered without cost-sharing.

Q-3. If I am the intended parent, is my insurer required to cover maternity care, including prenatal care, for the individual acting as a surrogate?
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No. Your insurer will only cover services for people who are covered under your health insurance policy, (typically you and your family members if you purchased family coverage) and does not provide benefits to someone who is not covered under the policy.

Q-4. If I am the intended parent, is my insurer required to cover IVF treatments for the individual acting as a surrogate?
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No. Your health insurance policy only covers services for people who are covered under your health insurance policy (typically you, and if you purchased family coverage, your family members) and does not provide benefits to someone who is not covered under the policy.

Q-5. Where can I find additional information?
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DFS recently issued guidance to insurers regarding health insurance coverage for preventive care and screenings and maternity care in relation to surrogacy.

Q-6. My insurer is denying coverage for health care services related to surrogacy. What should I do?
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If you believe that you are being inappropriately denied coverage for health care services related to surrogacy, you should contact DFS to file a complaint

Q-7. If an individual acting as surrogate receives Medicaid coverage, does Medicaid cover pregnancy related treatment costs?
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Yes. In a surrogacy arrangement, the surrogate already receiving Medicaid coverage would receive maternal health benefits from Medicaid—whether through the Medicaid fee-for-service program or Medicaid managed care coverage. However, there may be other factors to consider in connection with a surrogacy arrangement and the surrogate’s ongoing eligibility for Medicaid coverage, including that any reimbursement of health care costs in the surrogacy arrangement should occur before Medicaid coverage is applied and that any income earned by the surrogate as part of the surrogacy arrangement may be applied to the surrogate’s Medicaid financial eligibility determination. These issues should be discussed and addressed as part of the development of the surrogacy arrangement.