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New Legislation: The New York State IVF Mandate

RMA Long Island IVF has long advocated for mandated IVF and fertility preservation coverage in New York. And those efforts have finally paid off for many New Yorkers.

Now, in what infertility advocates like Barbara Collura, CEO & President of Resolve, the National Infertility Association, are calling a “game changer for the rest of the country”, New York State passed a bill mandating IVF insurance coverage under certain plans, and medically- necessary fertility preservation coverage. Plus, it included the funds to support these benefits in its 2020 budget. ₁

“IVF” is short for in-vitro fertilization, generally regarded as the most successful method of medically-assisted reproductive technology to help infertile heterosexual and LGBT singles and couples get pregnant because of its statistically-higher success rate per cycle than intrauterine inseminations (“IUIs”). Depending on a person’s particular situation, IUI is often a first-step treatment for infertility as it is less expensive and less involved than IVF. But IUI is not only less statistically successful than IVF, it’s also not an option for gay men in New York.

Further, IVF is appropriate in many situations where IUI is not—such as for women with blocked fallopian tubes or poor-quality eggs, men with sperm issues, or people who need genetic screening of embryos. Accordingly, insurance plans requiring that policyholders undergo numerous IUIs before IVF will be covered-- instead of deferring to the doctor’s determination of what the best treatment should be in each case—are often a waste of time and money.

Consider that one successful IVF cycle may be more cost-efficient than multiple unsuccessful IUIs.  In addition, there are Long Island IVF patients who have built their entire family from the embryos retrieved in one IVF cycle—including one patient who has enjoyed three separate singleton pregnancies, spaced out over several years, thanks to cryopreservation and frozen embryo transfers.

While New York is the 10th state to mandate coverage for IVF-- arguably coming late to the game-- the new mandate is reportedly more comprehensive and progressive in terms of who and what it covers than similar laws of states that came before it. Other states with mandated IVF coverage often include numerous restrictions like limitations on total funding, total number of cycles, maternal age cut-offs, or eligibility definitions and language that effectively exclude LGBT or single patients, and more. ₂

New York is often seen by other states as a leader, so the ripple effect of this comprehensive legislation may cause other states to adopt or broaden similar legislation. It is a wonderful, potentially life-altering, and long-awaited legislative breakthrough-- estimated to help cover fertility treatment for as many as 2.4 million people in New York. However, in its current form, the IVF mandate seemingly won’t help gay men access IVF fertility coverage until the definition of “infertility” or other language is further tweaked and/or paid surrogacy becomes legal in New York.

In order to understand where this legislation falls short, we must understand its strengths and some history of the fight for IVF coverage.

Historically, the battle for mandated IVF coverage faced some prominent challenges. There was the age-old debate of whether infertility was a disease or a lifestyle choice. Is it a privilege-- or a right-- to have a baby? Is it medically necessary to provide infertility treatment if being unable to have a baby is not a matter of life and death, like a cancer diagnosis would be? ₃ So, an early obstacle was getting infertility recognized as a disease--then as such, patients could get access to appropriate medical treatment. Eventually, less costly but statistically less effective treatments like IUIs were covered by exceptionally generous insurance plans, but IVF coverage lagged behind. This has been a problem because, for many, IVF was the treatment most likely to be recommended by reproductive endocrinologists due to its higher success rate and ability to bypass more medical infertility problems than IUI.

For decades, IVF retained its original, misunderstood “test tube baby” public image despite its widespread use, so there was a need to educate and change that mind-set. IVF needed to be recognized as well-established, scientifically-proven and necessary medicine, instead of an elective or experimental procedure. Then, there came the ongoing battle over who should decide who gets IVF and when. Shouldn’t a patient’s doctor decide what the appropriate treatment should be on a case-by-case basis rather than legislators mandating that all patients first undergo an arbitrary number of IUIs as a pre-requisite to proceeding with IVF? Finally, there was (and still is) the problem defining “infertility” in a more inclusive way that’s reflective of all the latest LGBT family-building options—since it originally only applied to the traditional, heterosexual married couple.

Despite progress in expanding the original definition of “infertility” beyond parameters that only applied to heterosexual couples, the definition used in even the most progressive legislation can still cut groups like gay men out. From a sexual orientation standpoint, infertile heterosexual couples, single women, and lesbians, will be able to take advantage of the new IVF mandate.

In a nutshell, the New York State mandate will now require large-group insurance plans for companies of 100 or more employees, to cover up to three cycles of IVF. Unlike in some other IVF-mandated states, New York will reportedly not have an age restriction or cut-off, instead allowing the patient’s doctor the discretion to decide whether IVF is medically-appropriate on a case-by-case basis. ₁

So where are the shortcomings?

First off, it only covers employees under large plans, so small- and medium-sized companies are not required to offer IVF coverage (though all plans are required to provide medically-necessary fertility preservation coverage). In addition, the legislation doesn’t apply to Medicaid recipients, those who are self-employed, or gay men. Despite these exclusions, about half of insured New Yorkers are still estimated to fall under the mandate for IVF coverage.

Among the LGBT population, gay men typically face the largest financial obstacles to becoming biological parents due to their need to generally involve and compensate two different women in the family-building process – – an egg donor who donates her eggs and a surrogate/gestational carrier who carries the baby in her uterus and turns it over to the intended parents at birth. Heterosexual couples, lesbian couples, and single women, do not generally need to access both of those services and their associated expenses.

The mandate defines “infertility” as the inability to conceive “after 12 months of regular, unprotected sexual intercourse or donor insemination”. ₁ The time frame is reduced to six months for women over 35 years old. For the longest time, the definition of “infertility” in New York did not include the donor insemination language, impeding the ability of lesbians and single women to meet the state’s “infertile” criteria necessary to access an insurer’s fertility benefits.

The New York bill has carefully crafted language specifically designed to prohibit discrimination based on sexual orientation or gender identity, marital status, or age-- and it includes the broadened definition of “infertility”. But the practical reality of how male couples—who need the services of an egg donor and an out-of-state surrogate—can access these IVF benefits is not yet clear.

Openly-gay Senator, Brad Hoylman, of Manhattan, who used an out-of-state surrogate to build his own family is not only co-sponsoring a bill to legalize paid surrogacy in New York State (The Child-Parent Security Act), but is reportedly committed to figuring out how the IVF mandated coverage benefits can be extended to gay couples, because in its current form, applying the IVF benefits to gay men is “complicated”.  Legalization of paid surrogacy in New York may open the door for language to be added to the IVF mandate that would explicitly extend IVF insurance benefits to gay men whose egg donors must undergo IVF. ₁

RMA Long Island IVF has been building families in the LGBT community for decades. Along with our partners at The LGBT Network, we are committed to educating the LGBT community on the many different family-building options that are available—options that continue to expand with rapid advancements in the field of assisted reproductive technology.

RMA Long Island IVF is also a selected infertility provider under the New York State Department of Health’s Infertility Demonstration Program, which subsidizes the cost of infertility treatment for employed New Yorkers who satisfy certain criteria. Contact our office today for more information on this program and on the exclusive RMA Long Island IVF Jade Foundation Grant and other financial assistance programs for fertility treatment.

As active participants in efforts to make mandated coverage for IVF and medically-necessary fertility preservation a reality in New York, RMA Long Island IVF is happy for the many New Yorkers who will now be able to afford IVF treatment and egg-freezing. But we will continue to support efforts to expand the benefits to effectively cover gay couples, and other excluded New Yorkers, as well.

Financial hardship is often the biggest obstacle for infertile people to overcome. With the barrier to IVF insurance coverage coming down for many, and fertility preservation being covered across the board for those facing cancer, we look forward to helping all New Yorkers who need IVF or egg-freezing in order to build their families. Haven’t you waited long enough? Why not contact our office to schedule an appointment with one of our physicians and start planning your family?