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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. Infertility treatment 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,1 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?

As of late 2023, 21 states and DC had enacted laws requiring at least some coverage for infertility treatment on at least some state-regulated health plans:2

  • Arkansas
  • California
  • Colorado (currently just large group plans; as explained below, legislation under consideration in 2024 would extend this to individual and small group plans as of 20253)
  • Connecticut
  • Delaware
  • District of Columbia (effective in 20254)
  • Hawaii (legislation under consideration in 2024 would expand benefits5)
  • Illinois
  • Kentucky (fertility preservation only6)
  • Maryland (coverage enhanced as of 2021 as a result of SB988)
  • Massachusetts
  • Montana
  • New Hampshire
  • New Jersey
  • New York
  • Ohio
  • Rhode Island (legislation under consideration in 2024 would add coverage for preimplantation genetic testing7)
  • Texas (coverage only has to be offered on group plans, but is not required)
  • Utah
  • West Virginia

The District of Columbia and five of these states — Colorado, Delaware, Maine, New Hampshire, and Utah — have joined this list since 2018.

Note that some additional states have Essential Health Benefits benchmark plans that include infertility-related coverage; this is discussed in more detail below.

Legislation related to coverage for fertility preservation and/or infertility diagnosis and/or treatment is under consideration in 2024 in several states, including some states where the legislation would enhance or change existing coverage rules:

  • Virginia (HB560, would include updating Virginia’s essential health benefits benchmark plan8)
  • Oklahoma (SB1334; fertility preservation only9)
  • Tennessee (HB2549, SB2629, HB2064, and SB1935; fertility preservation only10)
  • Maryland (HB985, to add fertility treatment to Medicaid11)
  • Nebraska (LB1082, IVF coverage for state employees12)
  • West Virginia (SB250 and HB402413)
  • New Hampshire (SB55814)
  • New Jersey (A2002, fertility preservation when diagnosed with certain menstrual disorders15)

Colorado enacted legislation in 2020 that was supposed to make more extensive infertility coverage mandatory on all state-regulated individual and group health plans as of 2022. However, 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. Current law in Colorado states that 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. But new legislation (HB1025)3 is under consideration in 2024 that would remove that language and simply require individual and small group plans issued or renewed on or after January 1, 2025 to cover infertility treatment. This is likely due to a proposed federal rule change that would no longer require states to defray the cost of adding newly mandated services in the individual and small group market.16

For now, Colorado’s Essential Health Benefits (EHB) Benchmark plan only requires individual and small group plans to cover “services for diagnosis and treatment of involuntary infertility” along with artificial insemination — but not the cost of donor eggs or sperm, or their retreival or storage. The list of not-covered services is extensive, and includes IVF, GIFT, and ZIFT.

Utah’s infertility coverage requirement is a three-year pilot program that applies to Utah’s Public Employees’ Health Plan, so it does not apply 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.

How does a state EHB benchmark plan affect infertility coverage?

If a state’s Essential Health Benefits (EHB) benchmark plan includes coverage for infertility treatment, all ACA-compliant individual and small group health plans in the state (ie, non-grandfathered/grandmothered) must also cover those same services.

So for example, 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 the 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 21 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 EHB benchmark plans that include infertility coverage?

About half the states have an EHB benchmark plan that includes some form of infertility treatment coverage, meaning that individual and small group plans in those states must include the same level of coverage that’s offered by the EHB benchmark plan.

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 before that; it was limited to diagnosis, plus treatment for underlying conditions causing 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 or later. 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 2024 that they used in 2017; changes have only been made to the benchmark plans in Illinois, South Dakota, Michigan, New Mexico, Oregon, Colorado, and Vermont (changes coming in 2025 in North Dakota and Virginia) 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 healthinsurance.org. Her state health exchange updates are regularly cited by media who cover health reform and by other health insurance experts.

Footnotes

  1. Employer Health Benefits, 2023 Annual Survey. KFF. October 2023. 
  2. Insurance Coverage by State” Resolve, The National Infertility Association. September 2023. 
  3. Colorado HB1025. BillTrack50. Introduced February 2024.  
  4. DC B25-0034. BillTrack50. Enacted July 2023 
  5. Hawaii SB758. BillTrack50. Introduced February 2024. 
  6. Kentucky HB170. BillTrack50. Enacted March 2023)
  7. Louisiana
  8. Maine (new as of 2024, under legislation enacted in 2022[efn_note]Maine LD1539. BillTrack50. Enacted April 2022. 
  9. Rhode Island S2396” BillTrack50. Introduced February 12, 2024. 
  10. Virginia HB560. BillTrack50. Introduced January 2024. 
  11. Oklahoma SB1334. BillTrack50. Introduced February 2024. 
  12. Tennessee HB2549, Tennessee SB2629, Tennessee HB2064, and Tennessee SB1935. BillTrack50. Introduced January 2024. 
  13. Maryland HB985. BillTrack50. Introduced February 2024. 
  14. Nebraska LB1082. BillTrack50. Introduced January 2024. 
  15. West Virginia SB250 and West Virginia HB4024. BillTrack50. Introduced January 2024. 
  16. New Hampshire SB558. BillTrack50. Introduced January 2024. 
  17. New Jersey A2002. BillTrack50. Introduced January 2024. 
  18. Patient Protection and Affordable Care Act, HHS Notice of Benefit and Payment Parameters for 2025; Updating Section 1332 Waiver Public Notice Procedures; Medicaid; Consumer Operated and Oriented Plan (CO-OP) Program; and Basic Health Program. U.S. Treasury Department and U.S. Centers for Medicare and Medicaid Services. November 2023. 

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