New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Howard Mills
Superintendent

The Office of General Counsel issued the following opinion on November 8, 2005, representing the position of the New York State Insurance Department.

RE: Coverage for Infertility Treatments.

Question Presented:

Does N.Y. Ins. Law § 3221 (McKinney Supp. 2005) contain a permissible exclusion for artificial insemination?

Conclusion:

No. N.Y. Ins. Law §3221 (McKinney Supp. 2005) does not contain a permissible exclusion for artificial insemination.

Facts:

The Consumer Services Bureau of the Department received a complaint from an insured of ABC Life Insurance Company stating that the Company violated Section 3221(k) of the Insurance Law by denying claims related to the treatment of infertility. The Consumer Services Bureau takes the position that Section 3221(k), as amended by the legislature in 2002, mandates coverage for artificial insemination. ABC Life Insurance Company of America disagrees and states that the insurance policy at issue contains an exclusion for treatment related to the promotion of conception that was filed with and approved by the Department. The inquirer requested the Office of General Counsel's interpretation of the statute.

Analysis:

Chapter 897 of the Laws of 1990 amended several provisions of the Insurance Law, including Section 3221, to add a new provision that prohibits insurers from denying coverage for the diagnosis and treatment of correctable medical conditions otherwise covered by the policy solely because the medical condition happened to cause infertility.

The Legislature amended Section 3221 to clarify that such coverage was mandated because some insurers were denying coverage for the diagnosis and treatment of correctable medical conditions (e.g. endometriosis), otherwise covered by the policy, if the disease was not causing any symptoms other than causing infertility. The basis for these denials was that the diagnosis and treatment of the disease was not medically necessary. Although the statute made clear that coverage for the diagnosis and treatment of correctable medical conditions otherwise covered by the policy was mandatory, the statute did not mandate coverage for infertility treatments.

In an Opinion letter dated October 7, 1991, the Department stated that "it is clear from both the Assembly and Senate's memoranda that the bill is not intended to address such matters as reversal of voluntary sterilization, any procedure considered or recognized by medical authorities as experimental or any procedure intended solely to induce pregnancy."

However, in 2002 the Legislature again amended Section 3221(k) to provide mandatory coverage for certain infertility treatments. Specifically, N.Y. Ins. Law § 3221(k) (as amended by Chapter 82 of the Laws of 2002) provides, in relevant part, as follows:

(k) (6) (A) Every group policy issued or delivered in this state which provides coverage for hospital care shall not exclude coverage for hospital care for diagnosis and treatment of correctable medical conditions otherwise covered by the policy solely because the medical condition results in infertility; provided, however that:

(i) subject to the provisions of subparagraph (C) of this paragraph, in no case shall such coverage exclude surgical or medical procedures provided as part of such hospital care which would correct malformation, disease or dysfunction resulting in infertility; and

(ii) provided, further however, that subject to the provisions of subparagraph (C) of this paragraph, in no case shall such coverage exclude diagnostic tests and procedures provided as part of such hospital care that are necessary to determine infertility or that are necessary in connection with any surgical or medical treatments or prescription drug coverage provided pursuant to this paragraph, including such diagnostic tests and procedures as hysterosalpingogram, hysteroscopy, endometrial biopsy, laparoscopy, sono-hysterogram, post coital tests, testis biopsy, semen analysis, blood tests and ultrasound; and

(iii) provided, further however, every such policy which provides coverage for prescription drugs shall include, within such coverage, coverage for prescription drugs approved by the federal Food and Drug Administration for use in the diagnosis and treatment of infertility in accordance with subparagraph (C) of this paragraph.

(B) Every group policy issued or delivered in this state which provides coverage for surgical and medical care shall not exclude coverage for surgical and medical care for diagnosis and treatment of correctable medical conditions otherwise covered by the policy solely because the medical condition results in infertility; provided, however that:

(i) subject to the provisions of subparagraph (C) of this paragraph, in no case shall such coverage exclude surgical or medical procedures which would correct malformation, disease or dysfunction resulting in infertility; and

(ii) provided, further however, that subject to the provisions of subparagraph (C) of this paragraph, in no case shall such coverage exclude diagnostic tests and procedures that are necessary to determine infertility or that are necessary in connection with any surgical or medical treatments or prescription drug coverage provided pursuant to this paragraph, including such diagnostic tests and procedures as hysterosalpingogram, hysteroscopy, endometrial biopsy, laparoscopy, sono-hysterogram, post coital tests, testis biopsy, semen analysis, blood tests and ultrasound; and

(iii) provided, further however, every such policy which provides coverage for prescription drugs shall include, within such coverage, coverage for prescription drugs approved by the federal Food and Drug Administration for use in the diagnosis and treatment of infertility in accordance with subparagraph (C) of this paragraph.

(C) Coverage of diagnostic and treatment procedures, including prescription drugs, used in the diagnosis and treatment of infertility as required by subparagraphs (A) and (B) of this paragraph shall be provided in accordance with the provisions of this subparagraph.

(i) Coverage shall be provided for persons whose ages range from twenty-one through forty-four years, provided that nothing herein shall preclude the provision of coverage to persons whose age is below or above such range.

(ii) Diagnosis and treatment of infertility shall be prescribed as part of a physician's overall plan of care and consistent with the guidelines for coverage as referenced in this subparagraph.

(iii) Coverage may be subject to co-payments, coinsurance and deductibles as may be deemed appropriate by the superintendent and as are consistent with those established for other benefits within a given policy.

(iv) Coverage shall be limited to those individuals who have been previously covered under the policy for a period of not less than twelve months, provided that for the purposes of this subparagraph "period of not less than twelve months" shall be determined by calculating such time from either the date the insured was first covered under the existing policy or from the date the insured was first covered by a previously in-force converted policy, whichever is earlier.

(v) Coverage shall not be required to include the diagnosis and treatment of infertility in connection with: (I) in vitro fertilization, gamete intrafallopian tube transfers or zygote intrafallopian tube transfers; (II) the reversal of elective sterilizations; (III) sex change procedures; (IV) cloning; or (V) medical or surgical services or procedures that are deemed to be experimental in accordance with clinical guidelines referenced in clause (vi) of this subparagraph. . . (emphasis supplied).

Thus, in addition to providing coverage for hospital and surgical and medical care for the diagnosis and treatment of correctable medical conditions otherwise covered under the policy that result in infertility, certain policies must also provide coverage for the diagnosis and treatment of infertility, subject to the permissible exclusions and/or limitations contained in Section 3221(k)(6)(C). That section provides, among other things, that there is no requirement that insurers provide coverage for in vitro fertilization, gamete intrafallopian tube transfers or zygote intrafallopian tube transfers; the reversal of elective sterilizations; sex change procedures; cloning; or medical or surgical services or procedures that are deemed to be experimental. Please note that Section 3221(k)(6)(C)(v) does not preclude an insurer from voluntarily providing coverage for the infertility procedures specifically enumerated therein. Some insurers currently choose to provide coverage for such procedures, while others choose to exclude coverage.

It is the Department's view that Section 3221(k)(6)(C) contains the only permissible exclusions and/or limitations. If the Legislature had intended to make artificial insemination a permissible exclusion, it would have specifically enumerated it as one of the procedures for which coverage was not required, as it did for other similar procedures. Accordingly, since Section 3221(k)(6)(C) does not contain a permissible exclusion for artificial insemination, coverage is mandatory.

Lastly, the inquirer stated that the insurance policy at issue contains an exclusion for treatment related to the promotion of conception that was filed with and approved by the Department. Since these policy forms were approved on December 28, 2000, which predates the 2002 amendments to Section 3221 and the policy forms are not guaranteed renewable, their renewals are no longer consistent with the law and must be revised and resubmitted to the Department.

Please note that N.Y. Ins. Law § 3103 (McKinney 2000) provides, in relevant part, as follows:

(a) Except as otherwise specifically provided in this chapter, any policy of insurance or contract of annuity delivered or issued for delivery in this state in violation of any of the provisions of this chapter shall be valid and binding upon the insurer issuing the same, but in all respects in which its provisions are in violation of the requirements or prohibitions of this chapter it shall be enforceable as if it conformed with such requirements or prohibitions. (emphasis supplied).

Pursuant to this section, any insurance policy or annuity contract issued in violation of the New York Insurance Law is valid and binding on the insurer and will be enforceable as if it were in conformance with New York Insurance Law. Accordingly, notwithstanding the fact that the policy forms are contrary to Section 3221, they shall be enforceable as if they conformed to Section 3221.

For further information you may contact Associate Attorney Pascale Jean-Baptiste at the New York City Office.