BILL ANALYSIS Ó
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: AB 460
AUTHOR: Ammiano
AMENDED: June 5, 2013
HEARING DATE: June 26, 2013
CONSULTANT: Marchand
SUBJECT : Health care coverage: infertility.
SUMMARY : Adds non-discrimination language to the existing
requirement that health plans and health insurers offer coverage
for the treatment of infertility.
Existing law:
1.Provides for regulation of health insurers by the California
Department of Insurance (CDI) under the Insurance Code, and
provides for the regulation health plans by the Department of
Managed Health Care (DMHC), pursuant to the Knox-Keene Health
Care Service Plan Act of 1975 (Knox-Keene Act).
2.Requires health insurers offering group coverage, and health
plans when offering coverage to groups of at least 20
employees, to offer coverage for the treatment of infertility,
except in vitro fertilization, and to communicate the
availability of that coverage to all prospective group
contract holders with whom they are negotiating.
3.Defines "infertility," for purposes of the mandate to offer
infertility coverage, as either (1) the presence of a
demonstrated condition recognized by a licensed physician as a
cause of infertility, or (2) the inability to conceive a
pregnancy or to carry a pregnancy to live birth after a year
or more of regular sexual relations without contraception.
4.Defines "treatment of infertility," for purposes of the
mandate to offer infertility coverage, as procedures
consistent with established medical practices in the treatment
of infertility by licensed physicians, including, but not
limited to, diagnosis, diagnostic tests, medication, surgery,
and gamete intrafallopian transfer.
5.Prohibits the requirement for health plans and health insurers
to offer infertility coverage from being construed to require
a religious organization to offer coverage for forms of
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AB 460 | Page 2
treatment of infertility in a manner inconsistent with the
religious organization's religious and ethical principles.
6.Prohibits the benefits or coverage of any health plan contract
from being subject to any limitations, exceptions, exclusions,
reductions, copayments, coinsurance, deductibles,
reservations, or premium, price, or charge differentials, or
other modifications because of the race, color, national
origin, ancestry, religion, sex, marital status, or sexual
orientation.
7.Defines "sex" to have the same meaning as "gender," which is
defined as including a person's gender identity and gender
expression, as defined.
8.Prohibits health insurers from failing to issue insurance, or
from issuing insurance under less favorable conditions, on the
basis of race, color, religion, sex, gender, gender identity,
gender expression, national origin, ancestry, or sexual
orientation.
This bill:
1.Revises the requirement that health plans and health insurers
offer coverage for the treatment of infertility to require
that this coverage be offered, and if purchased, provided
without discrimination on the basis of age, ancestry, color,
disability, domestic partner status, gender, gender
expression, gender identity, genetic information, marital
status, national origin, race, religion, sex, or sexual
orientation.
2.Prohibits the non-discrimination language added by this bill
from being construed to interfere with the clinical judgment
of a physician.
FISCAL EFFECT : According to Assembly Appropriations, negligible
costs because this bill clarifies existing law and does not
create a coverage benefit that did not previously exist. The
California Health Benefits Review Program (CHBRP) was unable to
estimate the marginal cost impact, if any. CHBRP did note this
bill does not change the current infertility treatment mandate
to offer, meaning the state would not be subject to defray costs
of a new benefit not included as an essential health benefit
under the federal Affordable Care Act.
PRIOR VOTES :
AB 460 | Page
3
Assembly Health: 13- 6
Assembly Appropriations:12- 5
Assembly Floor: 50- 24
COMMENTS :
1.Author's statement. Insurance companies are not complying
with current state law that prohibits patients from being
treated differently based on sex, marital status, and sexual
orientation and current law that requires registered domestic
partners to be treated as spouses in regard to fertility
treatments. The goal of this bill is to clarify the
application of current law as it pertains to same-sex married
couples and domestic partners and the non-compliant practices
currently used by insurance providers in infertility
treatments. Family planning and reproductive choice is about
being able to plan when to build a family. Fertility services
exist as an integral part of family planning and reproductive
choice. All persons with infertility coverage should be
treated fairly and without discrimination when choosing to
build their family.
2.Background. According to the author, under the current
definition of infertility heterosexual married couples are
typically treated as a unit for infertility. If a husband has
a low or no sperm count, both the husband and wife are
diagnosed with primary male factor infertility because the
spouse does not produce the gamete needed for conception.
Assisted reproductive technology is used to attain a pregnancy
where the wife is ultimately a patient regardless of her
female fertility status. If the couple's health insurance has
infertility coverage, they are able to access it under the
current definition of infertility.
According to the author, an example of how the current
non-discrimination laws are not being adhered to is when an
individual or same sex couple are unable to conceive and
attempt to access their infertility coverage and are denied
based on not having an opposite sex married partner in which
to have one year of regular sexual relations without
conception. A single woman may be required to pay for
artificial insemination for a period of time prior to being
diagnosed as infertile, whereas a heterosexual couple does not
face a similar cost.
3.Mandate to offer versus mandate to cover. This bill proposes
AB 460 | Page 4
to add non-discrimination language to existing law that
requires health plans and health insurers offer coverage for
the treatment of infertility. This is distinguished from
benefit mandates in which health plans and health insurers are
required to actually cover the treatment or benefit it
question. Under a mandate to offer, the purchaser of the plan
or policy has the option to include, or not include, coverage
for infertility treatment. According to the CHBRP, most
California state benefit mandates are "mandates to cover."
4.CHBRP analysis. AB 1996 (Thomson), Chapter 795, Statutes of
2002, requests the University of California to assess
legislation proposing a mandated benefit or service and
prepare a written analysis with relevant data on the medical,
economic, and public health impacts of proposed health plan
and health insurance benefit mandate legislation. CHBRP was
created in response to AB 1996, and SB 1704 (Kuehl), Chapter
684, Statutes of 2006, extended CHBRP for four additional
years.
According to CHBRP, it is not able to say whether the various
definitions of infertility in medical policies would be
considered discriminatory. CHBRP states that legal analysis,
which it does not do, is required to understand how
discrimination would be interpreted as it relates to coverage
for treatment of infertility, and that neither DMHC nor CDI
was able to provide this level of legal analysis within its
time frame to complete the analysis. According to CHBRP,
because the impact of this bill is unknown, it is unable to
estimate the marginal impact, if any, of this bill. The CHBRP
report, therefore, presented information on infertility and
infertility treatments, the impact of insurance coverage for
infertility treatment on utilization, and information on
current coverage for the treatment of infertility in health
plans and policies. Most of the CHBRP is not particularly
relevant to the question posed by this bill (whether
anti-discrimination language should be added to the mandate to
offer), because CHBRP was not able to estimate whether this
non-discrimination language will have any effect on how the
law is interpreted today.
The portion of the CHBRP analysis evaluating public health
impacts did state that q ualitative studies with patients and
providers have documented problems with access to infertility
diagnosis and treatment because of race/ethnicity, language,
religion, culture, and age. However, regarding discrimination
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at the health plan and health insurer level, CHBRP found no
literature that addressed discrimination on the basis of any
of the groups or characteristics listed in the
non-discrimination language of this bill. CHBRP stated that
national survey data show disparities in self-reported
infertility treatment utilization by race/ethnicity.
According to CHBRP, infertility rates are highest among
non-Hispanic black and African American women, yet infertility
treatment use is highest among non-Hispanic white women.
However, CHBRP states that the impact of AB 460 on utilization
of treatments of infertility is unknown, thus the impact of
this bill on reducing disparities among racial and ethnic
groups is unknown.
Interaction With the Federal Affordable Care Act.
California has selected the Kaiser Foundation Health Plan Small
Group HMO 30 as its benchmark plan for defining essential
health benefits (EHB) in 2014 and 2015. The Affordable Care
Act (ACA) permits a state to require a health plan offered in
the exchange to offer benefits in addition to the EHB package,
but if the state does so, the state must make payments to
defray the cost of those additionally mandated benefits.
The Kaiser Small Group HMO 30 benchmark plan excludes coverage
for the treatment of infertility, therefore health plans and
health insurance policies subject to EHB coverage requirements
are not required to cover treatment for infertility. State
benefits mandates that are not part of the EHB package that
are only a "mandate to offer," such as the infertility
coverage requirement affected by this bill, do not trigger the
requirement that the state defray costs in 2014 or 2015.
5.Related legislation. AB 912 (Quirk-Silva) would require that
every health plan contract and health insurance policy provide
coverage for medically necessary expenses for standard
fertility preservation services when a necessary medical
treatment may cause iatrogenic infertility to an enrollee or
insured. AB 912 is set for hearing on June 26, 2012 in Senate
Health Committee.
6.Prior legislation. SB 757 (Lieu), Chapter 722, Statutes of
2011, required every group health plan contract and every
health insurance policy to comply with existing law that
provides for equal coverage for registered domestic partners.
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AB 1586 (Koretz), Chapter 421, Statutes of 2005, defined the
term "sex" to include, but not be limited to, a person's
gender, as specified, under existing law that prohibits
health plans and insurers from specified discriminatory acts.
7.Support. Equality California states in support that this bill
would clarify that insurance coverage of fertility treatments
must be offered and provided equally to lesbian, gay,
bisexual, and transgender prospective parents, including
single parents. Equality California notes that California law
already prohibits discrimination on these grounds, but that
same-sex couples, transgender prospective parents, and single
prospective parents continue to face discrimination in seeking
coverage for fertility treatments. The National Center for
Lesbian Rights (NCLR) states that it has been contacted by a
significant number of lesbian, gay, bisexual and transgender
couples and single prospective parents who are unable to
obtain coverage for needed fertility services because of their
insurer or plan's overly restrictive definition of
"infertility," even in situations where there is independent
proof they have an infertility condition. NCLR cited several
examples, including a woman from Alameda County who was denied
coverage by her health insurance provider for infertility
treatment, despite having been previously diagnosed with an
organic infertility condition (fibroids), because she did not
meet her plan's definition of "infertility," which required
her to have had intercourse with a man for a period of time
without conceiving.
The American Society for Reproductive Medicine (ASRM) states in
support that the while the policies of plans and insurers are
not identical in how they define infertility, generally
infertility for heterosexual couples is defined as the
inability to achieve conception after having frequent,
unprotected intercourse for at least a year, or for 6 months
for a woman over the age of 35. For a single woman,
infertility is defined as the inability to achieve conception
after having 6 to 12 cycles of artificial insemination. ASRM
states that these descriptions are inherently discriminatory,
as a woman must pay for artificial insemination prior to being
able to meet the definition of infertility, and that these
definitions apply to a single woman, but not to a single man.
8.Opposition. The California Catholic Conference (CCC) opposes
this bill, stating that infertility is the inability of two
people of opposite sex to conceive a child as a result of
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sexual intercourse. Two people of the same sex who engage in
sexual activity are naturally, biologically infertile.
According to CCC, same sex couple may choose to adopt or spend
their own resources in the search to create a family, but the
state should have no role in mandating that activity.
Catholics for the Common Good states in opposition that
infertility treatments covered by this bill amount to creating
children with the intention of depriving them of the
fundamental human right to know and be cared for by their
mothers or fathers or both.
SUPPORT AND OPPOSITION :
Support: American Federation of State, County and Municipal
Employees, AFL-CIO
American Society for Reproductive Medicine
California Communities United Institute
Equality California
National Association of Social Workers, CA Chapter
National Center for Lesbian Rights
42 Individuals
Oppose:California Catholic Conference
Capitol Resource Institute
Catholics for the Common Good
2 individuals
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