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Does the ACA require infertility treatment to be covered by health insurance?

Does the ACA require infertility treatment to be covered by health insurance?

Q. Does the ACA require infertility treatment to be covered by health insurance?

A. No. Treatment for infertility is not one of the ten essential benefits, and coverage for it is not mandated by the ACA or any other federal law. But that doesn’t mean it’s never covered, as states can have regulations that go beyond the minimum requirements laid out by the federal government.

Whenever a health insurance benefit is not mandated by the federal government — as is the case for infertility treatment — states are free to step in with their own laws, regulations, and mandates. But state rules only apply to state-regulated plans, which include health plans that individuals and businesses purchase from an insurance company. If a business self-insures its employees’ coverage, the plan is regulated by the federal government under ERISA, and state regulations do not apply.

Nearly two-thirds of people who have employer-sponsored health insurance in the U.S. are covered under self-insured plans, which means that even in states with robust infertility coverage mandates (described in more detail below), the benefit may not be available to many people with employer-sponsored coverage.

That said, many employers, especially large employers, have increasingly opted to include coverage for infertility treatment in their group health plan as a way to recruit and retain employees.

Which states have laws that require health plans to cover infertility treatment?

Nineteen states have laws that require at least some coverage for infertility treatment on at least some state-regulated health plans as of 2023: Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Louisiana, Maryland (coverage enhanced as of 2021 as a result of SB988), Massachusetts, Montana, New Hampshire, New Jersey, New York, Ohio, Rhode Island, Texas (coverage only has to be offered on group plans, but is not required), Utah, and West Virginia.

Four of these states — Colorado, Delaware, New Hampshire, and Utah — have joined this list since 2018.

  • Maine will join them in 2024, under the terms of legislation the state enacted in 2022.
  • Kentucky enacted legislation in 2023 that will require state-regulated health plans to cover egg and sperm preservation prior to a medically necessary treatment (generally for cancer) that would be expected to cause infertility. Kentucky’s law takes effect in 2024.

Legislation is also under consideration in 2023 in the District of Columbia (B25-0034), Oklahoma (SB6; fertility preservation only), Virginia (HB2366), Missouri (HB266), Oregon (SB491), Texas (SB1277; fertility preservation only) and Washington (HB1151/SB5204) that would require infertility coverage for various state-regulated health plans.

Mississippi also considered legislation in 2023 related to infertility coverage (HB853), but it died in committee. New Jersey is considering legislation (S3733) that would allow access to ovulation-enhancing medications under the state’s Medicaid program, for individuals experiencing infertility.

Colorado enacted legislation in 2020 that was supposed to make infertility coverage mandatory on all state-regulated individual and group health plans as of 2022. But due to concerns that the state might have to defray the cost of adding this coverage to individual and small group plans, the implementation was delayed. New legislation was enacted in 2022 requiring infertility coverage on state-regulated large-group health plans as of 2023. And an infertility coverage mandate will take effect for individual and small group plans 12 months after if and when HHS determines that Colorado would not have to defray the cost of adding this coverage.

Utah’s infertility coverage requirement is a three-year pilot program that applies to Utah’s Public Employees’ Health Plan, so it’s not applicable to most residents’ coverage, although Utah does have a law that requires insurers that offer maternity benefits to also provide indemnity coverage ($4,000) that people can use to fund adoption or infertility treatment.

And in California, Illinois, New Hampshire, and Texas, coverage for infertility treatment is only required on group plans, and not on individual policies that people purchase on their own.

But individual/family and small group plans sold in Illinois are required to include coverage for infertility because the state’s benchmark plan includes infertility coverage, and in Texas, the benchmark plan includes coverage for diagnosis — but not treatment — of infertility, so diagnosis of infertility is covered on individual and small group plans in Texas as well. The interaction of benchmark plans and infertility coverage is discussed below.

In the 19 states with infertility benefit requirements as part of their state insurance statute, the mandated coverage varies quite a bit from one state to another. Some do not cover in vitro fertilization (IVF) or medications, some have specific diagnosis requirements or lifetime benefit maximums, others only require coverage on large group plans, and/or HMOs, etc.

Which states have benchmark plans that include infertility coverage for individual and small group health plans?

About half the states have a benchmark plan that includes some form of infertility treatment coverage (the benchmark plan in each state serves as the model for the minimum level of coverage that individual and small group plans in the state must provide; see definition number two).

Most of those states overlap with the states listed above that have laws requiring at least some coverage for infertility diagnosis and/or treatment. But several states without infertility coverage mandates are among the states where the benchmark plan includes at least some infertility coverage. They include: Arizona, DC, Iowa, Michigan, Missouri, Nevada, New Mexico, North Carolina, Pennsylvania, Tennessee, and Virginia.

(Note that although Colorado’s infertility mandate does not yet apply to individual and small group plans, the state’s benchmark plan does include some infertility coverage, but it’s limited to diagnosis and artificial insemination. New Hampshire’s infertility coverage mandate took effect in January 2020, but the state’s benchmark plan did include some infertility coverage prior to that; it was limited to diagnosis, plus treatment for underlying conditions causing the infertility, such as endometriosis, obstructed fallopian tubes, or hormone deficiencies.)

But just as the state laws vary considerably, so do the coverage details in the benchmark plans. Some require coverage for treatment like IVF, GIFT, and ZIFT, while others specifically exclude those treatments. For example:

  • The benchmark plans in Arizona, DC, and Tennessee only include coverage for the diagnosis of infertility.
  • The benchmark plans in Kansas, Michigan, Missouri, New Hampshire, New Mexico (as of 2022), Virginia, and West Virginia only include diagnosis of infertility and treatment of the underlying causes of infertility.
  • The benchmark plans in Montana, Nevada, New York, Pennsylvania, and Colorado only include diagnosis of infertility and artificial insemination.
  • The benchmark plans in Iowa and North Carolina only include diagnosis of infertility and medical stimulation of ovulation.
  • The benchmark plans in Connecticut, Hawaii, Illinois, Maryland, and Massachusetts all include more comprehensive coverage, including IVF (note that these are all states with laws requiring infertility coverage).

CMS provides details for each state’s benchmark plan, including the changes that some states made for plan years starting in 2020, 2021, 2022, and 2023. New Mexico’s benchmark plan through 2021 did not include infertility coverage, but the changes the state made for 2022 include coverage for diagnosis of infertility and treatment of the underlying causes.

Most states have not changed their benchmark plans, and are still using the same plan in 2023 that they used in 2017; changes have only been made to the benchmark plans in Illinois, South Dakota, Michigan, New Mexico, Oregon, and Colorado, and most of them did not affect infertility coverage.

In cases where state law requires coverage for diagnosis and/or treatment of infertility, the benchmark plan (and thus, all of the new plans offered in the individual and small group markets) will include that coverage. But as we’ve noted above, there are some states where the benchmark plan does include at least some infertility coverage (and thus so do the state’s ACA-compliant individual and small group plans) despite the fact that the state does not have a law requiring this coverage.

Louise Norris is an individual health insurance broker who has been writing about health insurance and health reform since 2006. She has written dozens of opinions and educational pieces about the Affordable Care Act for Her state health exchange updates are regularly cited by media who cover health reform and by other health insurance experts.

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