Family Law

Should Insurance Cover IVF? The Centennial State Joins The Growing Crowd That Says Yes

Colorado becomes the 18th state with fertility coverage.

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After qualifying in judo for the 2004 Olympics in Greece, her family’s ancestral home, a shoulder injury ended Christina Yannetsos’s martial arts career. She decided to head to medical school to make a difference for others. After residency, Dr. Yannetsos moved back to Colorado, where she had trained for the Olympics, to work as an Emergency Room doctor. She met the love of her life, Gabe, married him, and was excited to start a family.

Unfortunately, Yannetsos was surprised to find that she was among the one in four female physicians (25%!) that experience infertility. That’s higher than the normal, already high, rate for the general population, which is 1 in 8. Yannetsos was further surprised that treatment for her diagnosed medical condition was not covered by her health insurance and instead would cost her and her spouse tens of thousands of dollars, if not more, out of pocket. Yannetsos opted to change jobs, seeking an employer that had a health insurance plan that would provide fertility coverage. Think about that. Even a medical doctor wanted to ensure that her health insurance was adequate before beginning fertility treatments.

Not one to stand by as others struggled, Yannetsos was determined to make a change for all Coloradans. She started reaching out to advocates in other states and organizations like RESOLVE: The National Infertility Association, and uniting passionate voices within Colorado on social media. She joined forces with the newly formed nonprofit Colorado Fertility Advocates, with others like Colorado local Crystal Wilson, who had successfully advocated on the national level for fertility benefits for wounded veterans, as well as fertility professionals: reproductive endocrinologist Dr. Althea O’Shaughnessy, psychologist Dr. Alison Wilson, egg donation and surrogacy agency owner Angela Bevill, surrogacy agency owner Jennifer White, attorney Judith Hoechst, and yours truly.

In moving the issue forward, Colorado Fertility Advocates partnered with RESOLVE, the Alliance for Fertility Preservation, and their fellow Building Families Coalition members — the American Society for Reproductive Medicine, EMD Serono, and Ferring Pharmaceuticals — and with strong local support from organizations, including the Colorado Women’s Bar Association and the LGBTQ+ advocacy group One Colorado. And they found champion sponsors in Colorado State Representatives Kerry Tipper and Leslie Herod.

Fast forward a little over a year later, to April 1, 2020 — and not as an April Fool’s joke — Colorado Governor Jared Polis signed into law HB20-1158, The Colorado Building Families Act, a bill to improve fertility care access in Colorado. Despite COVID-19 taking over all things everywhere, Polis squeezed in the signing and added Colorado to the list, along with 17 other states, that have fertility insurance laws.

What Does The New Law Do?

The newly minted law scheduled to take effect in January 2022 requires insurance policies under Colorado law — by contrast to those under federal law, such as ERISA plans — to cover fertility diagnosis, medically necessary preservation, and treatment. These policies are required to treat fertility medical services the same as other covered medical services and cannot charge differently for copays or deductibles.

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LGBTQ+ Inclusive

Moreover, the bill broadly defines “infertility” to include: (i) the failure to impregnate or conceive; (ii) a person’s inability to reproduce either as an individual or with the person’s partner; or (iii) a licensed physician’s finding based on a patient’s medical, social, and reproductive, history, age, physical findings, or diagnostic testing. The bill’s language rejects exclusive and outdated definitions based strictly on age and heterosexual relationships, and includes coverage for those in the LGBTQ+ community.

Religious Exemption; Three Rounds Of IVF

After passing the Colorado House of Representatives, the Senate process involved some negotiation and compromise, resulting in the addition of a religious exemption available to employers, as well as a reduction in the number of completed egg retrievals covered from four down to three, with unlimited embryo transfers — the final number in the new law.

A New Insurance Mandate?

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What about the ACA/Obamacare? Well, not to get in the weeds too much, but talks with the Governor before the bill passed resulted in the addition of a provision stating that should the benefits provided by the law be deemed a new mandate under the Affordable Care Act (ACA), and require defrayal of costs at the expense of the State of Colorado, then the law would not go into effect for the small group and individual insurance markets, but would still apply to the large group market. The good news, however, is that proponents of the bill do not expect the law to be deemed a “new” mandate — since there’s already a weaker mandate that this law expands — meaning that this issue probably won’t arise.

Just The Start

Over a million Coloradans have policies falling under Colorado law, who will soon have fertility benefits. However, Yannetsos sees this as just the beginning. “My senator told me he was voting against this bill because it helps only a percentage of people. In response, I explained that we have to start somewhere, and I am confident others will see the positive impact it has on families and the overall improvement of access to quality healthcare. I am hopeful that Colorado will lead by example and self-funded employers [those under federal law] will see the benefit to their employees and our community and take initiative to make changes as well. Colorado hopes to lead by example in that every American has access to the same benefit.”

During State Legislative hearings on the bill, a few legislators expressed concerns that inclusion of fertility coverage would increase healthcare costs. RESOLVE’s Chief Engagement Officer testified in support of the bill, as she has done in other states, explaining that … AKSHUALLY … studies support the opposite conclusion. A lack of fertility coverage has shown to *increase* costs as a result of patients making different, costlier medical decisions, such as waiting longer for treatment and opting for multiple embryo transfers. Multiple embryo transfers mean higher rates of multiple births (twins and triplets), with increased medical risks to the children and mother as well as greater costs to the medical system overall.

The new law is a big win for Colorado and those needing help growing their families. Crystal Wilson explained, “I could not be more proud of Colorado for being the 18th state with fertility coverage, 12th with IVF coverage, and 10th with fertility preservation coverage!” Congratulations, Colorado!

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

 

 

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