Compliance with Mandated Infertility Benefit (P.L. 2001, c. 236)

BULLETIN NO 02-09 BULLETIN NO. 02-09 TO: ALL HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE CORPORATIONS, HEALTH SERVICE CORPORATIONS, HEALTH INSURANCE COMPANIES AND HEALTH MAINTENANCE ORGANIZATIONS TRANSACTING BUSINESS IN NEW JERSEY FROM: HOLLY C. BAKKE, COMMISSIONER RE: COMPLIANCE WITH MANDATED INFERTILITY BENEFIT (P.L. 2001, c. 236) P.L. 2001, c. 236, effective November 29, 2001 (the "Act") provides that policies and/or contracts delivered, issued, executed or renewed by hospital, medical and health service corporations, health insurance companies, and health maintenance organizations (collectively "carriers") to groups of more than 50 persons that provide hospital or medical expense benefits, including pregnancy related benefits, shall cover medically necessary expenses incurred in the diagnosis and treatment of infertility. The Act specifies that such coverage [I]ncludes, but is not limited to, . . . diagnosis and diagnostic tests; medications; surgery; in vitro fertilization; embryo transfer; artificial insemination; gamete intra fallopian transfer; zygote intra fallopian transfer; intracytoplasmic sperm injection; and four completed egg retrievals per lifetime of the covered person. . . . It has been brought to the Department's attention that carriers' administration of the benefits mandated by the Act has been inconsistent with the law. While the Department has not yet proposed regulations implementing the Act, it is clear that the practices described below are inconsistent with the Act. Individuals who have previously undergone four completed egg retrievals at their own expense are being advised by some carriers that they have reached the lifetime limit and are not entitled to any coverage for completed egg retrievals. The Act states that a carrier "shall provide coverage which includes . . . four completed egg retrievals per lifetime of the covered person[.] . . ." The Department interprets this provision to mean that four completed egg retrievals shall be counted toward a covered person's lifetime maximum only if they were covered by a carrier. Completed egg retrievals performed at a person's own expense do not count toward the lifetime maximum. Completed egg retrievals covered by any carrier are counted toward a person's lifetime maximum. Certain carriers have been refusing to pay the medical costs of egg and sperm donors. The Act mandates coverage of all medically necessary expenses incurred in the treatment of infertility, and the use of donor eggs and donor sperm is common in the procedures that must be covered. Accordingly, carriers are required to cover all medical expenses of egg and sperm donors to the extent that benefits remain and are available under the recipient's policy, after benefits for the recipient's own expenses have been paid. Several carriers are refusing to cover frozen embryo transfers. As noted above, the Act specifically provides that "embryo transfer" must be covered. Although the law does not require that cryopreservation, storage and thawing of frozen embryos be covered, the costs of the transfer of a thawed, previously-frozen embryo must be covered. Some carriers are refusing to cover egg retrievals where the egg is to be transferred to a gestational carrier. The Act mandates coverage of egg retrievals whether or not the resulting embryo is transferred to the covered person or a gestational carrier. The purpose of this Bulletin is to advise carriers of the following: Carriers must immediately cease engaging in any practices that violate the Act, including those described above, regardless of the terms of any infertility policy or contract forms filed or approved by the Department. Carriers must reverse any claim denials or preauthorization denials based on such practices. Failure to reverse such actions within 30 days of the date of this Bulletin may result in the imposition of penalties. May 9, 2002 Date Holly C. Bakke Commissioner