Will the Affordable Care Act make infertility care affordable?

March 6, 2013Carole No Comments »

The Affordable Care Act, also called “Obamacare” became the law of the land on March 23, 2010 and was upheld by a Supreme Court decision in June 2012. What impact, if any, will it have on the ability of infertility patients to pay for infertility treatments? It’s impact is not clear because it will affect not only whether benefits are directly covered but also impacts tax credits and health savings plans which could also impact infertility care’s affordability.

The big changes that are positive for women who want to be pregnant (and most everyone) is that:

  • Direct access to maternity and gynecological care is guaranteed.
  • Medical care can not be denied to women based on pre-existing conditions. Pre-existing conditions have included pregnancy, prior C-section and infertility, depending on the specific plan. These pre-exisiting medical conditions can no longer be used to deny coverage.

Okay, that’s great but is infertility care an essential health benefit? The most straightforward piece of the Affordable Care Act (ACA) requires that “essential health benefits” be defined, and once defined must be included in every state-run health care exchange. The Department of Health and Human Services tasked the Institute of Medicine with defining this list of essential health benefits. They were also advised not to provide a list of specific medical treatments but instead list categories, leaving room for interpretation.

The Institute of Medicine recommended that these 10 health benefits be included in every state’s list of essential benefits:

  • Ambulatory patient services
  • Emergency Services
  • Hospitalization
  • Maternity and Newborn care
  • Mental health and substance abuse disorder services,  including behavioral health treatments
  • Prescription drugs
  • Rehabilitation and habilitative services and devices
  • Laboratory services
  • Preventive and wellness services and chronic disease management
  • Pediatric services, including oral and vision care

Ambulatory patient services and Maternity and Newborn care might include infertility care as part of these broad categories but every state may have to hash that out in their own exchanges. At this point, it is not clear whether infertility care will be considered an essential health benefit for every citizen.

The ACA will impact tax credits and health savings accounts which are another way in which patients pay for infertility treatments. Currently, the IRS tax code considers “infertility enhancements” such as IVF, cryostorage of sperm and eggs, tubal surgery and vasectomy as non-reimbursable medical expenses. It is not clear if embryo storage also counts. Because they are considered non-reimbursable, you can include these expenses as you total up your medical expenses for the year. For the 2012 tax year, any non-reimbursable medical expenses that you incurred that exceeded 7.5% of your adjusted gross income could be deducted. So if you adjusted gross income was $100,000 per year, you needed more than $7,500 in medical expenses to quality for a deduction. The amount of your deduction was only the amount of expenses that exceed the initial $7500, so if you had $8000 in expense, $500 were deductible. The ACA actually will increase the 2013 threshold for qualifying for deductions to 10% of your adjusted gross income, meaning you need to have more expenses to qualify for a tax deduction.

Flexible health spending accounts are another strategy US families use to pay for medical expenses that aren’t covered. You can have money deducted from your paycheck,  before taxes are applied, reducing the amount of your taxes and letting you save these pre-tax dollars for medical expenses. Previously, the IRS has not limited the amount that can be saved in these plans but employers did. In 2013, under the ACA, there will be a limit on the amount that you can contribute to your FSA, namely $2500.  In some cases, this may be less than the employer allowed previously. Top-income earners are not eligible for these deductions. So at least in terms of tax credits and flexible savings plans, these money-saving strategies may become more anemic under the ACA.  This wouldn’t be a big deal if infertility were explicitly named as an essential health benefit, since insurance would cover it, but that is not clear at this point.

On a positive note, the adoption tax credit continues under the ACA and becomes refundable. Previously, the tax credit was used to off-set taxes due and then carried over toward the next year’s taxes, not refunded. The kicker is that congress may decide not to extend the adoption tax credit beyond 2013.

Patients using gestational carriers may benefit from the ACA, because the obstetrical expenses of gestational carriers would be covered. This assumes that there is no loophole that would specifically exclude gestational carriers from ACA protections for pregnant women- namely that pregnant women can not be denied coverage based on defining pregnancy as a pre-existing condition and that maternity services are explicitly defined as an essential health benefit.

Currently, 15 states have mandates that insurance companies must cover infertility expenses. Former NY Representative , Anthony Weiner, introduced a bill twice (2007 and 2009) to make infertility coverage a nation-widel benefit. Twice the bill died in committee. The Family Act of 2011 which specifically called for a FEDERAL tax credit for infertility treatments was also referred to committee which I think is synonymous with death by committee.  This brings home again how anemic the political activisim for infertility coverage is, but the results, or lack thereof,  speak for themselves.

The ACA does not directly advise states about how to handle their mandates, but if services outside of the ones considered “essential health benefits” are included at the state level, the state must pay for these services themselves. This drives home again, the power of including infertility care specifically as an essential health benefit. At some point, each state will have to grapple with the details of what exactly is covered–here is where every infertility patient has a stake in talking to their elected representatives and making their priorities known.

Even in states where infertility coverage is mandated, that does not insure that every employer is required to include it because federal law can exempt employers from obeying certain laws based on their size (eg. number of employees). For instance, the American Disability Act doesn’t apply to companies with fewer than 15 employees. Other laws have higher thresholds for applicability (eg. 50 or more employees). Federal law exempts companies with fewer than 50 employees from obeying state mandates on insurance, so your employer-specific coverage may still be less generous than another employer’s coverage, even in a mandated state.

The ACA in 2016 may also allow patients to buy insurance not only from their state exchanges but also in “compacts” their state set up with other states, allowing then to reach outside their state for insurance plans. Theoretically, patients in non-mandated states could buy coverage in mandated states, thus benefiting from infertility coverage inclusion in those states. Of course, the devil is in the details and due to the delay introduced by the Supreme Court challenge, we are still waiting to see how the details shake out.

I think the take-home message is that the Affordable Care Act is still a plan in progress and there is time to impact how it affects infertility care in your state. The infertility support group Resolve has a page devoted to the Affordable Care Act here. If you do want to work to influence your legislators, Resolve has some suggestions here for how you can volunteer and make a difference in your state. They are starting Project Protect to:

  • “Generate action from your elected officials by making calls and writing letters.
  • Monitor legislative issues in your state.
  • Be the voice of the over 7.3 million Americans diagnosed with infertility.”

Fertility Within Reach is another great source for tips on how you can communicate effectively with your legislator to make it clear to your elected representatives what your priorities are. Even in times of fiscal crisis, legislators fund their priorities. As citizens, it is our job to make sure that legislators understand our needs and make funding those needs their priority.

This post is a summary of an article published in the March 2013 issue of Fertility and Sterility, The Affordable Care Act’s impact on fertility care., written by Kenan Omurtag, M.D., and G. David Adamson, M.D. Fertility and Sterility Volume 99, Issue 3 , Pages 652-655, 1 March 2013



© 2013, Carole. All rights reserved.

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