Insurance Coverage for Infertility Treatment

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Insurance Coverage for Infertility TreatmentStudy your plan to reverse claim denials
By Pamela Prager

 

Couples who face infertility not only face the emotional pain associated with not being able to have a child, but may also face obstacles put in front of them by their health insurance and employers. The following guidelines are designed to assist couples to overcome some of these obstacles on their own.
However, every situation is different under the law, and an attorney should be contacted for assistance with specific legal problems. Should it be necessary to seek legal advice, the references listed at the end of this article will be of assistance in evaluating your case.

 

Insurance

Many insurance carriers do not provide health insurance coverage for infertility, or provide only very limited insurance coverage. If your claims for infertility treatment have been denied, take the following steps:

State Mandates
Determine whether or not you live in a state that has mandates for infertility insurance coverage. There are a handful of states that mandate insurance coverage for infertility to some extent or under certain conditions.

Your Insurance Contract
Read your insurance contract. Most people obtain their health insurance through their employer, who provides a "summary" of the health insurance plan. Although this is helpful to some extent, it is the actual contract which controls your health insurance issues. If you do not have a copy of your contract, ask your employer for a copy. Under the Employees Retirement Income Security Act (ERISA) a federal law which regulates pension and insurance benefits provided to employers to employees, your employer is required to give you a copy.
Insurance contracts are construed against the insurance carrier. Generally speaking, if the contract does not have an exclusion for infertility, the insurance company must pay benefits.
Read your contract to determine if there is a specific exclusion for infertility. If there is not an exclusion, you should have coverage. If there is an exclusion, carefully read what it excludes. Does it exclude treatments only, or does it also exclude diagnosis?
As an example, I recently represented a woman who had a laparoscopy with an incidental chromotubation because of complaints of pelvic pain. The insurance carrier denied the claim stating it was for the treatment of infertility. By taking the claim through the grievance process, eventually the insurance carrier made a determination to pay the benefits. We were able to establish that the laparoscopy was not done for infertility, but for pelvic pain. More importantly, the contract only excluded "treatment" of infertility. Since the procedure was diagnostic, the insurance carrier determined that it was required to make the payment. Thus, it is very important that you determine what is excluded and ultimately the reason the insurance carrier is denying the claim.
Your insurance carrier can only deny benefits for what it has excluded.
 

Appealing Denials of Claim

If you have read your contract and believe you should have coverage (and your insurance carrier has denied a claim or stated you do not have coverage when preauthorization is requested), write your insurance carrier and ask for identification of the specific reasons for the denial and under what provision of the contract your claim is being denied.
In the past, insurance carriers that do not have exclusions have denied claims for one of the following three reasons:

  1. Infertility is not an illness;
  2. Treatment of infertility is not medically necessary;
  3. Treatment of infertility is experimental.

 

These are invalid reasons to deny your claim. Infertility is an illness (2). Medically necessary is usually defined by insurance policies as medically required and medically appropriate for diagnosis and treatment of an illness or injury under professionally recognized standards of health care. Treatments such as GIFT, IVF, ZIFT/PROST have NOT been on the American Medical Association's experimental list since the late 1980s.

If the insurance carrier gives another reason, you should review your policy carefully and determine if the reason they give is consistent with the insurance contract.

Once the insurance carrier has identified to you the reasons for the denial of the claim, you can then present evidence to it that its reasoning is incorrect. This may include a letter from your doctor explaining the reasons for a particular procedure. You should also write a letter to the insurance carrier explaining why you believe its denial was inappropriate.

You should attempt to make all contacts with the insurance carrier through written communication. If you should need to contact them by telephone, record the call if possible. If not, take extensive notes, which should include the date and time called, who you spoke with and what was said.

 

Violation of Discrimination Laws

If it appears that the exclusion is valid under the insurance contract, it may nevertheless be invalid under Federal Discrimination Laws. These laws are currently being tested in some Courts throughout the country as to how they should be applied to persons with infertility. The law is not settled and the results may be different between jurisdictions. 
You must keep in mind that to recover under these laws you will most likely have to take legal action against your employer. This prospect is very frightening for most people in that they are afraid their employer will retaliate by terminating their employment. Although this is also illegal, there is little an attorney can do to prevent this from happening. The only remedy for such retaliation is to bring an additional claim for retaliation and ask for reinstatement or money damages. 
Although it may be possible to bring an action directly against the insurance carrier, the less riskier claim as far as likelihood of success is against your employer. In order to be covered under the discrimination laws, your insurance must be through your employer or your spouse's, and the employer must have 15 or more employees. 
The Americans With Disabilities Act (ADA), which was passed in 1991, provides that it is unlawful to discriminate against persons with disabilities. The definition of a disability includes any physiological disorder or condition of the reproductive system. The disability must affect a major life activity. The legislative history, and case law, support the proposition that procreation or reproduction is a major life activity. Therefore, it is unlawful under the ADA to treat persons with disabilities differently than other employees in terms or conditions of employment, including fringe benefits. 
Although the ADA has a specific section which protects some insurance plans, the Equal Employment Opportunity Commission (EEOC) has issued guidelines in interpreting this provision that are vary favorable to persons whose infertility insurance excludes infertility. The Guidelines provide that in order to have the protections of the insurance provision, the insurer must basically establish that it is financially impossible to include the coverage. Insurance carriers cannot establish this. Studies on the cost of infertility coverage have clearly shown that the costs are minimal, approximately $1 to $1.50 per month per family policy. 
Title VII of the Civil Rights Act provides that sex discrimination includes discrimination based on pregnancy, childbirth or related medical conditions. It has been held that infertility is a medical condition related to pregnancy. Therefore, an employer cannot treat you any differently than its other employees as far as providing insurance benefits, time off from work, etc.

 

Time Off From Work

The provisions of the ADA and the Pregnancy Discrimination Act would also protect you when you need to take time off work for treatments. Your employer must treat you the same as all other employees when making decisions as to utilization of sick leave, vacation leave, or other provisions for time off from work for medical reasons. 
In addition, under the Family Medical Leave Act, any employer that has 50 or more employees must give you time off from work for medical treatment. There are certain limitations on this requirement, and it has not been conclusively determined whether or not infertility would be a covered condition. However, there is a good probability that it would be included under the clear language of the statute. If your employer is reluctant to give you time off from work to obtain your treatments, then you should specifically tell your employer (assuming that there are more than 50 employees) that you a requesting time off pursuant to the Family Medical Leave Act, and ask your supervisor what you need to do to obtain such leave. Generally, you will be given a form to complete which will require a statement from your doctor that it is necessary for you to miss work. 
This is only a summary of some of the legal protections you may have under various federal laws. You may also have some protection under your state law. If you have any concerns, it is highly recommended that you contact an attorney in your own state. Most attorneys will provide a free initial consultation. You should try to locate an attorney that specializes in the area of employment and/or insurance law. 

Krauel vs. Iowa Methodist Medical Center:
Infertility coverage takes "beating" in ruling

On October 7, 1995, U.S. District Judge Ronald E. Longstaff ruled in favor of the employer in an Iowa case centering around infertility coverage under the Americans with Disabilities Act (ADA). Despite a string of successful settlements by the EEOC involving disability-based distinctions in health insurance, the judge ruled that discrimination in a health insurance plan does not necessarily violate the law. Peggy Mastrioanni, chief of EEOC's ADA Policy Division is quoted in the Disability Compliance Bulletin as saying, "We disagree with the ... analysis used in this case." The ruling directly contradicts EEOC guidelines, which state that if a disability-based distinction is used as a "subterfuge" to evade the act, the plan is discriminatory and therefore illegal under the ADA. Mary Jo Krauel, the plaintiff in this case, is a 41-year-old respiratory therapist who exhausted all of her financial resources pursuing this law suit. Because waiting until the case is appealed to a higher court may mean she is too old to continue treatment, a trust fund has been established in her name to cover expenses of an in vitro fertilization attempt. If you are interested in contributing, contact Pam Prager Day: (515) 288-0145 or Evening: (515)-

On June 25, 1998 the United States Supreme Court issued a ruling that reproduction is a major life activity under the ADA. This ruling effectively overrules the Kraul v. Iowa Methodist Medical Center opinion in the Eighth Circuit. Although this case was decided in the HIV context, it has strong implications for persons with infertility. Infertility meets the requirements of the ADA - i.e. a disease of the reproductive system that affects the major life activity of reproduction. Insurance policies that exclude infertility treatments are very likely to be in violation of the ADA. In addition, employers who discriminate against infertile couples by denying them time off for treatments, etc. are also violating the ADA.

 

Legal Resources

  • Americans With Disabilities Act, 42 U.S.C. S 12101 et seq. Title VII of the Civil Rights Act, 42 U.S.C. S 2000e et seq.
  • Pregnancy Discrimination Act, 42 U.S.C. 2000e(k)
  • Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1319, (E.D. Pa. 1994)
  • Pacourek v. Inland Steel Co., 858 F. Supp. 1393 (N.D. Ill. 1994
  • McWright v. Alexander, 982 F.2d 222, 226-27 (7th Cir. 1994)

 

(1) These states are from research done by this writer in 1989. These states may have amended their statutes since that time, or additional states may now mandate insurance. See Prager,Infertility and the Unrecognized Illness in the Health Insurance Industry, 39 Drake L. Rev. 617 (1989). 

(2) See Witcraft v. Sundstrand Health & Disability Group Benefit Plan, 420 N.W.2d 785 (Iowa 1988); Egert v. Connecticut Gen. Life Ins. Co., 900 F.2d 1032 (7th Cir. 1990). 

 

Pamela Prager is an attorney with the Des Moines, Iowa law firm of Finley, Alt, Smith, Scharnberg, May & Craig, P.C. 

 

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