One of the last bills passed before coronavirus put the legislative session on hold aims to expand coverage of infertility treatment in Colorado.
Gov. Jared Polis signed House Bill 1158 into law April 1. The bill requires insurance plans regulated by the Colorado Division of Insurance to cover fertility preservation services and the diagnosis and treatment of infertility starting in 2022. While infertility coverage may be subject to an insurance policy’s standard deductibles, copays, benefit maximums and other limitations, insurers cannot treat fertility services differently than other medical services.
But the governor’s signature was accompanied by a warning that he wouldn’t sign any more bills this session that could be deemed new insurance mandates, except where there is an “urgent need for additional benefits related to COVID-19.”
Polis said in a letter to the General Assembly that, while mandates may help expand coverage and reduce long-term costs, they “often do not meet the second goal of lowering health insurance costs for people today.” He also asked that insurance mandate bills in future sessions include evidence showing they will save Coloradans money on health care the following year and called on the legislature to establish an actuarial review process for future mandates.
MONEY CONCERNS
While HB 1158 got through this session, it was still shaped by the governor’s concerns about costs. At Polis’ request, the final bill included a provision that would protect Colorado’s general fund if the state is required to defray increased costs from the mandate under the Affordable Care Act. In that event, the new law’s coverage requirements wouldn’t take effect for small group and individual plans regulated by the state.
Sen. Jim Smallwood, a Republican from Douglas County and one of nine senators to vote against the bill, said it was “refreshing” to hear the governor’s intention to follow through on reducing health care costs. But he said HB 1158 was a “missed opportunity” for Polis to “put his foot down.”
“It seemed a little contradictory to sign a bill adding costs while at the same time saying, ‘O.K., but this is the last one,’” Smallwood said. He said the bill is “very well-intended,” but he doesn’t expect it to help keep insurance costs down.
Proponents of the bill were less worried the coverage requirements would raise costs overall. One of the bill’s sponsors, Democrat Rep. Kerry Tipper, said she heard concerns from insurance carriers that the coverage requirement would increase premiums. But when proponents asked insurers for data from the other 17 states with fertility coverage laws, Tipper said, “nobody produced any information.”
Tipper is confident the federal government won’t ask the state to defray costs of the mandate under the ACA. “This was raised as a concern in every state that passed fertility coverage,” she said. “And in every single instance, the federal government did not require that.”
Proponents argued HB 1158 isn’t even a new mandate, just an expansion of an existing one. Attorney Ellen Trachman, founder and chair of the non-profit Colorado Fertility Advocates, said there was already a minimum requirement for fertility coverage, but it was outdated and recommended treatments that don’t meet today’s standard of care. Trachman, who helped draft the bill, added that lawyers and insurance specialists consulted for the bill “felt strongly” it didn’t contain a new mandate.
SAFETY AND SAVINGS
The bill’s advocates say covering fertility services will lead to safer, smarter choices that will save on health care costs in the long run.
Trachman said studies suggest the prohibitive costs of in vitro fertilization, which can reach $20,000 per round, often lead patients to ask for multiple embryos to be transferred, since they think it’s their only shot at a pregnancy. But multiple embryos can lead to multiple births, which are riskier for the mother and the babies.
It’s expensive too, Trachman said, as a stay in the neonatal intensive care unit can exceed $10,000 per day for each infant. She added that one woman who testified in favor of the bill talked about how she couldn’t afford optimal treatment and ended up with triplets and a seven-figure hospital bill.
“When we talk about costs, you can’t silo them — it’s into the system as a whole,” Tipper said. “We have healthier results and more cost-efficient results when we implement fertility coverage.”
Tipper and her husband have battled infertility, so the bill was personal for the lawmaker. They were fortunate that her husband’s employer-sponsored insurance covered their infertility treatments, she said, but she knows not everyone is so lucky.
“Once you go through that, you meet a lot of people and you realize there are a lot of people that take out second mortgages on their house or whose parents cashed out their retirement,” she said.
WHO’S IN, WHO’S OUT
Infertility affects 10 to 15% of couples, according to the Mayo Clinic, but not all who struggle with it suffer equally. “There is a cure for a vast majority of people that have fertility issues. It’s just access is a monetary question, so it becomes an equity issue,” Tipper said.
Making sure the bill was LGBTQ-inclusive was a priority, according to Trachman, who said many of the regulations and bills elsewhere rely on a “more traditional medical definition of fertility” that assumes would-be parents are in a heterosexual relationship and can’t conceive due to medical conditions like endometriosis.
Daniel Ramos, executive director of LGBTQ advocacy group One Colorado, said his group was involved in making sure the bill’s language was inclusive, and he said he’s happy with the results. “The fact that this bill provides that opportunity for coverage for infertility for all families, including LGBTQ families, is just a really important recognition that families can look really different,” he said.
The new benefits will only extend to Coloradans covered by insurance policies regulated by the state. That excludes people on Medicaid, which covers around 23% of the state’s population, as well as those on Medicare, VA and TRICARE plans. Self-funded ERISA plans, which accounted for 61% of employer-sponsored coverage in the U.S. last year, are also not covered.
However, Tipper said many of the country’s biggest employers already offer coverage for infertility treatment as part of their self-funded plans because they know it’s a competitive advantage for recruitment. Extending fertility benefits to state-regulated plans is important if Colorado wants to keep drawing young professionals to the state, she said, adding she had talked to many people for whom infertility coverage was “a very real issue” in their choice of location.
“You had folks that were leaving Colorado to go to Illinois, for example, so that they could realize their dream of becoming parents,” Tipper said. “And it would be affordable because in Illinois you had insurance coverage for fertility.”
COMPROMISES AND ROADBLOCKS
According to Trachman, the bill that passed the House was more or less what she and her coalition members had drafted, but they ended up making some concessions in the Senate, including a religious exemption for employers. They also wanted the bill to cover up to four rounds of IVF but, she said, “we held strong at three.”
Tipper said she didn’t feel there were any major sacrifices in the version that passed. “The original draft of the bill definitely had room for compromise in it, and we were always open to discussion,” she said. “On the whole, it’s one of the most comprehensive, fair fertility coverage bills in the country.”
Although HB 1158 got in under the wire, Polis’ remarks suggest there’s little hope this session for most of the other health coverage bills still pending in the legislature. These include a bill to expand coverage of colorectal cancer screenings and one that requires coverage of osteoporosis and urinary incontinence screening as well as sexually transmitted disease treatment.
Another bill that passed the House in late February would require insurers to cover an annual mental health wellness exam. Rep. Dafna Michaelson Jenet (D – Adams County), who is sponsoring the legislation, wrote an op-ed in the Colorado Sun Tuesday stressing the importance of mental health care amid the pandemic. It remains to be seen whether Polis might deem mental health coverage a coronavirus-related exception to his veto promise, but Michaelson Jenet said in an e-mail she has “every intention of moving the bill forward and fighting for it to be signed into law.”
— Jessica Folker