Insurance Circular Letter No. 3 (2021)

February 23, 2021

STATUTORY REFERENCES: N.Y. Insurance Law §§ 3216(l), 3221(h), 3221(k)(6), 4303(s), 4303(ll), and 4304(l)

I. Purpose

The purpose of this circular letter is to withdraw Insurance Circular Letter No. 7 (2017) and direct insurers authorized to write accident and health insurance in New York State, Article 43 corporations, health maintenance organizations, student health plans certified pursuant to Insurance Law § 1124, municipal cooperative health benefit plans, and prepaid health services plans that issue coverage subject to Insurance Law §§ 3221(k)(6) and 4303(s) (collectively, “issuers”) to provide immediate coverage of diagnostic and treatment services, including prescription drugs, for the diagnosis and treatment of infertility (“basic infertility treatments”) for individuals who are unable to conceive due to their sexual orientation or gender identity and are covered under individual, small group, and large group health insurance policies and contracts.

II. Discussion

Insurance Law §§ 3221(k)(6) and 4303(s) require a policy or contract that provides coverage for hospital care or surgical and medical care to provide coverage for diagnostic and treatment procedures used in the diagnosis and treatment of infertility. These sections of the Insurance Law further require a policy or contract that provides coverage for prescription drugs to cover prescription drugs approved by the federal Food and Drug Administration for use in the diagnosis and treatment of infertility. In addition, diagnostic and treatment procedures used in the diagnosis and treatment of infertility and prescription drugs are covered under comprehensive individual and small group health insurance policies and contracts as part of New York’s essential health benefits package as described in Insurance Law §§ 3216(l), 3221(h), 4303(ll), and 4304(l).

In 2017, the Department of Financial Services (“Department”) issued Circular Letter No. 7, which provided guidance to issuers based on the definition of “infertility” in effect at that time. In 2017, Insurance Law §§ 3221(k)(6)(C)(vi) and 4303(s)(3)(F) required issuers to make the determination of infertility in accordance with the standards and guidelines established and adopted by the American College of Obstetricians and Gynecologists and American Society for Reproductive Medicine (“ASRM”). The ASRM description of infertility provided that “[i]nfertility is a disease, defined by the failure to achieve a successful pregnancy after 12 months or more of appropriate, timed unprotected intercourse or therapeutic donor insemination. Earlier evaluation and treatment may be justified based on medical history and physical findings and is warranted after 6 months for women over age 35 years.”

However, in 2019, Part L of Chapter 57 (“Part L”) added Insurance Law §§ 3221(k)(6)(C)(v)(I) and 4303(s)(3)(E)(i) to amend the definition of “infertility” that was set forth in former Insurance Law §§ 3221(k)(6)(C)(vi)(I) and 4303(s)(3)(F)(i) to mean “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 twelve 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 thirty-five years of age or older. Earlier evaluation and treatment may be warranted based on an individual’s medical history or physical findings.”

Part L also added new Insurance Law §§ 3221(k)(6)(C)(viii) and 4303(s)(3)(H) to prohibit an issuer providing coverage for infertility treatments from discriminating based on an individual’s expected length of life, present or predicted disability, degree of medical dependency, perceived quality of life, or other health conditions, or based on personal characteristics, including age, sex, sexual orientation, marital status, or gender identity. Part L further added a new Insurance Law §§ 3221(k)(6)(C)(vii) and 4303(s)(3)(G) to require large group policies that provide medical, major medical or similar comprehensive-type coverage to cover three cycles of in-vitro fertilization (“IVF”) when used in the treatment of infertility. The amendments made by Part L took effect on January 1, 2020 and applied to insurance policies and contracts issued, renewed, modified, altered, or amended on or after January 1, 2020.

Under the Insurance Law, an issuer must provide coverage regardless of sexual orientation, marital status, or gender identity. In addition, since the definition of infertility expressly contemplates coverage for infertility treatment earlier than 12 months, issuers should be mindful that, with respect to some individuals, earlier evaluation and treatment may be justified. It has come to the Department’s attention that some issuers may be requiring some individuals to incur costs, due to their sexual orientation or gender identity, that heterosexual individuals do not incur in order to meet the definition of infertility. In particular, some issuers have denied coverage of basic infertility treatments, such as intrauterine insemination procedures, for some individuals who are unable to conceive without such treatment due to their sexual orientation or gender identity. These individuals may incur the high costs of basic infertility treatments for up to 12 months to demonstrate infertility in order to qualify for insurance coverage due to their sexual orientation or gender identity. This results in unfair discrimination for individuals due to their sexual orientation or gender identity, which is prohibited by Insurance Law §§ 3221(k)(6)(C)(viii) and 4303(s)(3)(H). Therefore, issuers must provide immediate coverage for basic infertility treatments (e.g., intrauterine insemination procedures) that are provided to individuals covered under an insurance policy or contract who are unable to conceive due to their sexual orientation or gender identity in order to prevent discrimination. Issuers that cover IVF procedures may consider whether basic infertility treatments, such as intrauterine insemination procedures, would be medically appropriate for the individual to attempt prior to covering IVF. This circular letter does not address surrogacy arrangements or require coverage for services that are not otherwise mandated to be covered under the Insurance Law.

III. Conclusion

Issuers are directed to provide immediate health insurance coverage for basic infertility treatments that are provided to individuals covered under an insurance policy or contract who are unable to conceive due to their sexual orientation or gender identity in accordance with the Insurance Law. In addition, Circular Letter No. 7 (2017) is withdrawn.

Please direct any questions regarding this circular letter by email to [email protected].

Very truly yours,

Lisette Johnson
Chief, Health Bureau