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«BRIDGING THE GAP BETWEEN THE “HAVE” AND THE “HAVE- NOTS”: THE ACA PROHIBITS INSURANCE COVERAGE DISCRIMINATION BASED UPON INFERTILITY STATUS ...»

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MASTROIANNI 3/8/2016 3:00 PM

BRIDGING THE GAP BETWEEN THE “HAVE” AND THE “HAVE-

NOTS”: THE ACA PROHIBITS INSURANCE COVERAGE

DISCRIMINATION BASED UPON INFERTILITY STATUS

Marissa A. Mastroianni*

I. INTRODUCTION

Due to the high costs of infertility treatment, many infertile Americans find themselves without the means to procreate.1 Compounding this issue, access to infertility treatment varies greatly from state-to-state largely due to the differences in state insurance coverage mandates.2 The access to infertility treatment, such as artificial reproductive technology (“ART”), often correlates to factors like household income, marital status, education level, race, ethnicity, and age.3 Therefore, a dichotomy exists between the “haves,” those with the financial means to undergo infertility treatment, and the “have-nots,” those who lack such means.

In an effort to curb this preclusive effect, a total of fifteen states have passed legislation that requires insurers to provide coverage, or at least offer coverage, for infertility treatment.4 The infertile individuals living within the other thirty-five states and the District of Columbia, however, do not enjoy similar insurance coverage.5 * J.D., 2015, Seton Hall University School of Law; B.A., 2012, Lehigh University. I would like to thank Professor Gaia Bernstein and Professor John Jacobi for their invaluable feedback and support in writing this article. I would also like to thank Michael Spizzuco and the ALBANY LAW REVIEW staff for their editing assistance. The views expressed in this article are mine alone.

1 See ANJANI CHANDRA ET AL., U.S. DEP’T OF HEALTH AND HUMAN SERVS., INFERTILITY

SERVICE USE IN THE UNITED STATES: DATA FROM THE NATIONAL SURVEY OF FAMILY GROWTH,

1982–2010 2 (2014); Debora Spar & Anna M. Harrington, Building a Better Baby Business, 10 MINN. J.L. SCI. & TECH. 41, 49, 50 (2009).

2 Spar & Harrington, supra note 1, at 51–53.

3 See CHANDRA ET AL., supra note 1, at 10.

4 State Laws Related to Insurance Coverage for Infertility Treatment, NAT’L CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/research/health/insurance-coverage-for-infertility- laws.aspx (last updated June 2014) [hereinafter State Laws Related to Insurance Coverage];

Saswati Sunderam et al., Assisted Reproductive Technology Surveillance – United States, 2011, MORBIDITY MORTALITY WKLY. REP. (Nov. 21, 2014), at 9, AND http://www.cdc.gov/mmwr/pdf/ss/ss6310.pdf.

5 See State Laws Related to Insurance Coverage, supra note 4.

151 MASTROIANNI 3/8/2016 3:00 PM 152 Albany Law Review [Vol. 79.1 Even within the fifteen states that have passed infertility coverage mandates, the scope of the laws vary and may be significantly limited.6 Thus, individuals without the necessary financial means to pay out-of-pocket for infertility treatments are disadvantaged depending on the laws of the state in which they reside. Allowing the states to choose whether to provide infertility insurance coverage has proven to yield discriminatory effects upon infertile individuals. In fact, only about 25 percent of U.S. health insurance plans include infertility benefits.7 The lack of access to infertility treatment for the majority of Americans is not a new concern. For example, in 2001, a Michigan Federal District Court held that infertility is a disability under the Americans with Disabilities Act (“ADA”) and therefore, relevant federal protections apply to infertile individuals.8 Moreover, the National Women’s Law Center spearheaded a campaign called “Being a Woman Is Not a Preexisting Condition” that seeks to prevent insurers from raising insurance premiums based upon gender.9 Despite the court ruling and political efforts, there were no reforms made on the federal level to mandate health insurance coverage for infertility treatment.10 The advent of the Patient Protection and Affordable Care Act (“ACA”),11 however, changed the landscape for the health insurance market and provides a new lens in which to view this issue. The ACA instituted large-scale health insurance reform at the federal level in an effort to control the steadily increasing cost of health care in the United States.12 Specifically, health care spending in 2009 represented 17.6% of the United States’ GDP and was projected to increase to 19.8% of GDP by 2020.13 The most highly publicized provision of the ACA is the individual mandate requiring the vast majority of Americans to enroll in either private or public health

–  –  –

Kate Devine et al., The Affordable Care Act: Early Implications for Fertility Medicine, 101 7 FERTILITY & STERILITY 1224, 1224 (2014).

8 See LaPorta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758, 763 (W.D. Mich. 2001).

9 Devine et al., supra note 7, at 1226.

10 Valarie Blake, It’s an ART not a Science: State-Mandated Insurance Coverage of Assisted Reproductive Technologies and Legal Implications for Gay and Unmarried Persons, 12 MINN.

J.L. SCI. & TECH. 651, 661–62 (2011).

11 Patient Protection and Affordable Care Act, 42 U.S.C. §§ 18001–121 (2013) (effective Jan.

16, 2014).





12 See Trends in Health Care Cost Growth and the Role of the Affordable Care Act, EXEC.

OFFICE OF THE PRESIDENT OF THE U.S., 1, 24 (Nov. 2013), https://www.whitehouse.gov/sites/ default/files/docs/healthcostreport_final_noembargo_v2.pdf.

13 Paul R. Brezina et al., How Obamacare Will Impact Reproductive Health, 31 SEMINARS

–  –  –

insurance plans.14 More pertinent to this article, the ACA greatly affected the private insurance market and public health plans.15 First, the ACA created a generalized list of categories for minimum “essential health benefits” that all qualified health plans must offer to its beneficiaries.16 Significantly, there are several statutory provisions within the ACA regarding nondiscrimination.17 The Department of Health and Human Services (“DHHS”), the authoritative decisionmaker on implementing the ACA, issued several regulations regarding nondiscrimination in the health insurance market.18 In particular, qualified health plans may “[n]ot employ marketing practices or benefit designs that will have the effect of discouraging the enrollment of individuals with significant health needs.”19 Therefore, the ACA and subsequent regulations represent a new legal framework in which to view discrimination in the national health insurance market.

The ACA’s statutory language is silent as to infertility treatment coverage, and its effect upon the fifteen states that have enacted state insurance mandates.20 Additionally, DHHS has not included infertility coverage as an essential health benefit in any subsequent regulation.21 This is partly due to the fact that DHHS provided states with the authority to create their own essential health benefit standards.22 Specifically, DHHS proposed a policy in December 2011 that provided states with “the flexibility to select... ‘benchmark See 26 U.S.C. § 5000A(a) (2013); Brezina et al., supra note 13, at 191.

14 See infra Part IV.A.

15 16 42 U.S.C. § 18022(a)(1), (b)(1) (2013); see infra notes 160–67. This provision, however, does not affect “grandfathered” insurance plans that were in existence before the enactment of the ACA. See 42 U.S.C. § 18011 (2013). Moreover, the essential health benefit standard does not apply to self-insured groups and large group plans. See Kate Greenwood et al., Implementing the Essential Health Benefits Requirement in New Jersey: Decision Points and Policy Issues 1 (Seton Hall Univ. Sch. of Law, Ctr. for Health & Pharm. Law & Policy, Research Paper No. 08, 2012), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2146806. It is important to note that Congress gave the Department of Health and Human Services (“DHHS”) the power to formalize essential health benefits after receiving input from the Department of Labor, Institute of Medicine, Congressional members, private citizens, and physician groups.

See 42 U.S.C. § 18022(a)(1); Brezina et al., supra note 13, at 193.

17 See, e.g., 42 U.S.C. §§ 300gg-3, -4, -5, -16, 18116 (2013).

18 In enacting the ACA, Congress authorized DHHS to “issue regulations setting standards for meeting the requirements” under Title 1 of the ACA, which includes the relevant ACA provisions for the purposes of this article. 42 U.S.C. § 18041(a)(1) (2013).

19 45 C.F.R. § 156.225(b) (2014).

20 Brezina et al., supra note 13, at 194, 195; see also Devine et al., supra note 7, at 1224

–  –  –

plan[s]’” based upon typical insurance coverage plans within the state.23 On February 27, 2015, DHHS renewed this policy through

2017.24 In accordance with this policy, the states with insurance mandates regarding infertility treatments adopted essential benefit standards that incorporated such laws.25 Therefore, in this context, the status quo has been maintained, so far.

In light of the changes created by the ACA, the question arises:

Does the fact that some infertile individuals in the United States lack access to insurance coverage for infertility treatment violate the ACA’s anti-discrimination framework? This article answers in the positive. Although medical practitioners and scholars have already addressed the problem of unequal access to infertility treatment, 26 this article will use the ACA as a new lens to view this inequality.

Interestingly enough, congressional hearings regarding the passage of the ACA uncovered stories of women who were wholly “denied insurance coverage because their infertility [status] was treated as a preexisting condition.”27 Due to financial restrictions, often no hope exists for many infertile individuals who live in states without insurance mandates to obtain the means to procreate.28 This article will proceed as follows. Part II will discuss the various types of infertility treatment and the associated costs. This section will also discuss established demographic patterns in the type of

–  –  –

See CTR. FOR CONSUMER INFO. AND INS. OVERSIGHT, ESSENTIAL HEALTH BENEFITS: LIST

24 OF THE LARGEST THREE SMALL GROUP PRODUCTS BY STATE 3 (2015), https://www.cms.gov/ CCIIO/Resources/Regulations-and-Guidance/Downloads/largest-smgroup-products-4-8-15d-pdf-Adobe-Acrobat-Pro.pdf; see generally 45 C.F.R. § 156.100 (2015) (granting States the ability to select their own benchmark plan).

25 Devine et al., supra note 7, at 1225.

26 See, e.g., CHANDRA ET AL., supra note 1, at 1–2 (“[W]omen who use infertility services are significantly more likely to be married, non-Hispanic white, older, more highly educated, and more affluent than nonusers.”); Blake, supra note 10, at 660–61 (arguing that the necessity to pay out-of-pocket for fertility treatment is a deterrent for infertile women); Anne Fidler & Judith Bernstein, Infertility: From a Personal Public Health, 114 PUB. HEALTH REP. 494, 497 (1999) (discussing statistics which indicate that race and wealth are directly correlated to women’s use of fertility treatment); Marianne P. Bitler & Lucie Schmidt, Utilization of Infertility Treatments: The Effects of Insurance Mandates 12–13 (Nat’l Bureau of Econ.

Research, Working Paper No. 17668, 2011), http://www.nber.org/papers/w17668.pdf (noting that statistics from the National Survey of Family Growth demonstrate that older and more educated women have greater access to infertility treatment as a result of State infertility insurance mandates allowed for by the ACA).

27 Devine et al., supra note 7, at 1226; see also RICHARD KIRSCH, FIGHTING FOR OUR HEALTH:

THE EPIC BATTLE TO MAKE HEALTH CARE A RIGHT IN THE UNITED STATES 271 (2011) (describing a woman whose children were approved for coverage, but who was denied coverage because her infertility was considered to be a preexisting condition).

28 See Fidler & Bernstein, supra note 26, at 504 (arguing that insurance coverage is required

–  –  –

individuals who undergo such treatment. Part III will address the different insurance mandates in the fifteen states that have enacted legislation to provide coverage for infertility treatment. It will also argue that inherent inequalities arise from the fact that access to infertility treatment is, in part, based upon state residency. Part IV explains the relevant federal insurance law reforms instituted by the ACA and illustrates the ways in which the reform brought about more inclusive coverage standards. Finally, Part V argues why the inequality in access to infertility treatments amongst Americans violates the ACA’s anti-discrimination framework.

II. INFERTILITY IN AMERICA AND THE ASSOCIATED HIGH COST FOR

TREATMENT Similar to many health issues, no single universal definition for infertility exists. The most common definition of infertility is a “disease of the reproductive system”29 where an individual is unsuccessful in becoming pregnant after more than one year of unprotected sex.30 The definitional variations for infertility produce different statistical findings on the number of infertile individuals and how they are treated.31 Moreover, defining infertility as the inability to do something is problematic for statistical purposes.32 For example, a physician treats two women who both have blocked fallopian tubes, but only one woman is trying to get pregnant.

Despite both women having blocked fallopian tubes, only one of them would be diagnosed as infertile.33 Therefore, the below statistics should be viewed in light of these difficulties in collecting adequate data.

According to the Centers for Disease Control and Prevention (“CDC”), approximately 6.7 million women between the ages of 15– 44 suffer from an impaired ability to become pregnant.34 Therefore, almost eleven percent of women in the United States suffer from this 29 Infertility is a Global Public Health Issue, WORLD HEALTH ORG., http://www.who.int/ reproductivehealth/topics/infertility/perspective/en/ (last visited Nov. 15, 2014) (internal quotation marks omitted).

30 Fidler & Bernstein, supra note 26, at 497; State Laws Related to Insurance Coverage, supra note 4.

31 Fidler & Bernstein, supra note 26, at 497.

32 See id.

33 See id.



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