Family Law

Colorado Fertility Mandate Will Not Go Into Effect On January 1, 2022 

Rep. Kerry Tipper plans to introduce a fix-it bill at the beginning of the 2022 legislative session.

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Well, this is disappointing news for all those Coloradans who have been holding off on accessing or moving forward with medical assistance for infertility, hoping it was just a matter of months before their insurance would help cover the high cost of fertility treatment. The Colorado Building Families Act — the state fertility access insurance mandate that had been slated to go into effect on January 1, 2022 — will instead be stalled. When it will go into effect, if at all, is yet to be determined.

The Colorado Building Families Act

Gov. Jared Polis signed the Colorado Building Families Act (the Act) into law on April 1, 2020. Perhaps a prophetic date. The Act, which was one of the last bills signed before the legislature temporarily shut down for COVID-19, intended to provide greater access to fertility diagnosis, treatment, and  preservation for Coloradans by mandating insurance coverage for all insurance plans subject to Colorado law. That was about one-third of the insurance plans covering Coloradans. The bill provided coverage for modern fertility techniques, including at least three rounds of in vitro fertilization (IVF), if recommended by a covered member’s physician. Despite the bill passing over a year and a half ago, the delayed effective date of January 1, 2022, intended to give time for the Colorado Department of Insurance to implement regulations and the insurance companies time to comply.

But it was not to be.

The Problematic Language

Right before the final version of the bill passed, the Governor’s office included language to prevent the state from being responsible for defrayal costs. Essentially, the Governor’s office was concerned about the state being financially responsible for any increase in premiums caused by a new insurance mandate under state law — as could be required by the Affordable Care Act (ACA). This new language required that Colorado’s Division of Insurance make a determination as to whether defrayal could apply, and ask the Federal Department of Health and Human Services (HHS) to confirm if that determination was correct. The Colorado Department of Insurance would then implement the Act only if: “The Division receives confirmation from [HHS] that that coverage specified … does not constitute an additional benefit that requires defrayal by the state” or HHS fails to respond within 360 days.

Well, way back in the year 2020, the Trump administration’s HHS determined that there was a possibility of defrayal, specifically in the individual and small group markets. So that was a bummer for the half-a-million-plus Coloradans that fell into that category. But it was still believed that the Act would go into effect for the large group market on the planned January 1, 2022, date. The large group market includes employers with 100 or more employees.

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Not so fast.

In the past few weeks, it was determined that the language of the Act did not support implementation for the large group market only — as it didn’t carve out the different markets. Basically, the individual and small group markets couldn’t be severed from the rest of the bill, so any defrayal determination prevents implementation of the Act as a whole. As a result, the Act will not go into effect at all on January 1, 2022.

There Is Still Hope

One of the prime sponsors for the Act, Rep. Kerry Tipper, shared with attendees at a Colorado Fertility Advocates webinar on October 28, 2021, that she plans to introduce a fix-it bill at the beginning of the 2022 legislative session to clearly carve out the large group market from the defrayal disqualification and allow the Act to go into effect at least for that market. The Governor’s office and the Division of Insurance are supportive of this proposed fix. Back in 2020, the bipartisan majority of the legislature was clearly in favor of passing the Act and increased access to fertility care for Coloradans, so the hope is that the fix-it bill should be a nonissue. Best-case scenario, if the bill passes quickly, it could affect those plans with a July 1 initiation/renewal date, and start July 1, 2022. For those plans on the calendar-year renewal, it could go into effect as early as January 1, 2023.

In the meantime, national organizations like RESOLVE: The National Infertility Association are doing what they can. RESOLVE’s Chief Engagement Officer Betsy Campbell shared on the Colorado Fertility Advocates webinar that RESOLVE would be continuing conversations with HHS under the Biden administration. RESOLVE disagrees with the Trump administration’s interpretation on defrayal, believing that none of the markets in Colorado — individual or small group market, in addition to the large market — should be subject to the ACA defrayal provision.

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In the meantime, Campbell reminded listeners that the majority of Coloradans are under insurance plans not subject to the Act or even to Colorado insurance regulation generally. So an alternative avenue for coverage is for employees themselves to mobilize and impress upon individual employers the importance and need for fertility coverage in their insurance plans. (As opposed to a top-down state mandate.) RESOLVE provides critical resources and support for those employees who want to press their case with their current employer. Check them out, if you haven’t already!

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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