Infertility and the ADA: health insurance coverage for infertility treatment.

• Author: Gilbert, Bonny
• Position: Americans with Disabilities Act

A FOUR-YEAR-OLD boy tells his mother what he is going to do when he is a daddy. A three-year-old girl is upset because she can't find the bottle to feed her "baby" doll.

The idea of parenthood and family is ingrained and taken for granted in our society. But those who are physically unable to conceive, impregnate or carry a pregnancy frequently find their circumstances trivialized and ignored. As medical research advances, myths about infertility have retreated, but it is still treated with suspicion.

Infertility is now recognized as a disease, yet its treatment still is not provided full insurance coverage. With the advent of the Americans with Disabilities Act, 42 U.S.C. [subsections] 12101-12213, it is time that infertility be recognized as a disability and be covered by employer-contracted health insurance.

INFERTILITY

Infertility is defined as the condition of a presumably healthy individual who is unable to conceive or produce conception during a period of one year.(1) In contrast, a fertile couple in their 20s has an approximate 20 percent chance of achieving pregnancy in any given month, with a cumulative success rate of 93 percent over a period of one year. That rate drops for a couple in their 30s to 10 percent in a given month, with a cumulative rate of 72 percent over one year.(2) Inferetility is a medical condition that impacts the lives of more than for millions couples in North America today.(3) Although stereotypically thought of as a female problem, infertility affects men and women in equal numbers, with 20 percent of the cases attributed to a combination of male/female factors or as undiagnosable.(4)

1. Treatment

   The causes of infertility generally fall into two very broad categories: (1) hormonal imbalances and (2) physical abnormalities of the reproductive organs. For both men and women, treatment falls into four categories.

   1. Drug Therapy

      Hormone therapy is used primarily to return hormones to normal levels. Common drugs given to women are (1) clomiphene, a low-level hormone drug used to normalize a menstrual cycle but not recommended for use longer than six months, and (2) gonadtropins, which are hormones used to increase the stimulation of the ovaries. Although these are the most common drugs used, virtually any female hormone not being produced at normal levels may be supplemented. Some of these same drugs, such as clomiphene, as well as male hormones, are used in treating male infertility. Antibiotics also might be used to treat either sex.(5)

   2. Surgery

      Surgery is used to repair damaged organs. Common procedures for females include laparoscopy and laparotomy. Laparotomy is frequently required for tubal surgery, a procedure that attempts to repair or clear blocked fallopian tubes. A laparoscopy is commonly used to remove either endometriosis or fibroid tumors. Either type may be used for any of these or other diagnoses, however, depending on the individual case. The most common surgery for males is varicocele surgery, which is used to reduce excessive blood flow to the testicles. Surgery for men is also used to correct blockages or other physical abnormalities.(6)

   3. Intrauterine Insemination

      IUI is used to address male infertility or bypass cervical problems. It is a procedure to bring sperm and egg closer together artificially by medically injecting sperm high into the uterus. There are many variations of this procedure, including the use of a variety of fertility drugs along with the IUI.(7)

   4. Assisted Reproductive Technologies

      ARTs are used to bypass physical problems. They are variations on the technique of removing eggs from the ovaries, joining them with sperm outside of the female body and returning either the mixture to the fallopian tubes or fertilized eggs to the uterus. In vitro fertilization (IVF), the oldest and most widely known ART, consists of joining egg and sperm in a petri dish and then returning fertilized eggs directly to the uterus. The most common purpose of IVF is used to bypass-damaged fallopian tubes. However, IVF and the other ARTS are used to treat other causes of both female add male infertility. Variations of ARTS include, among others, gamete in vitro. fertilization transfer (GIFT) and zygote in vitro fertilization transfer (ZIFT).(8)

2. Cost

   A typical IVF cycle costs, on average, $7,861. The latest success rate put forth by the Society of Assisted Reproductive Technologies states an over-all average of 15 percent per IVF cycle. Studies have shown a cumulative success rate of at least 45 percent after five cycles.(9)

   Approximately 1.9 percent of those receiving medical advice or treatment for infertility are treated with an ART. Studies have demonstrated that ARTS are more cost-effective methods of treatment than tubal surgery by laparotomy. One ART cycle costs approximately $7,861, compared to approximately $16,500 for tubal surgery. Surgery must be done in a hospital, with a typical stay of three to five days. ARTs are performed on an outpatient basis. Surgery requires weeks of recovery, which means lost wages and other expenses, while ARTs typically require one or two days of recovery. Surgery can require one to two years of attempts at conception before a determination of success can be made, while the success of an ART implantation can be known in two weeks.(10)

   This is significant for two reasons. First, age is a critical factor in success rates. A patient undergoing IVF at the age of 34 or 35 has a cumulative chance of success after five cycles of 45 percent, while a patient at the age of 36 or 37 has a cumulative chance of success of 28.9 percent after five cycles. Second, an insurance company has a stake in providing the most cost-effective methods of treatment. If an insurer has contracted to cover infertility treatment without any caps, then it is to its benefit that the patient achieve success as quickly as possible.

   For example, a 34-year-old woman wit blocked tubes is first treated with surgery which has been demonstrated to be 1.6 time more costly then IVF. She then waits two years to determine that the surgery was unsuccessful. She now incurs the costs of IVF at 36, and he chance of success has dropped significantly. The end result is that the insurance company has paid for both surgery and IVF with a greater likelihood of a negative outcome, rather than starting with IVF and obtaining a lower over-all cost with a greater chance of success. This is especially significant if a patient is going to continue treatment until she either has success or no longer has any chance of success.(11)

   Studies show that tubal surgeries drop by 50 percent when ARTS are covered by insurance."

   PRESENT INSURANCE COVERAGE

   Under the McCarran-Ferguson Act, most insurance issues are state rather than federal. An exception is the Pregnancy Discrimination Act of 1978, 42 U.S.C. [sections] 2000e(k), which requires coverage for all pregnancy-related medical expenses. Most insurance coverage is not mandated, however, and that which is happens on the state level.

   Coverage of infertility treatment in the United States is inconsistent because most states do not mandate it. Massachusetts, Rhode Island and Illinois, have enacted mandates requiring insurance coverage of infertility as an entity and all treatments prescribed as long as they are not experimental. Seven other states have mandates requiring infertility coverage and IVF coverage in a more limited manner. These are Arkansas, Maryland, Hawaii, New York, Delaware, Ohio and West Virginia.(13)

   In states without mandates, employer insurance plans provide inconsistent coverage. Most cover all tests to diagnose infertility along with some infertility treatments, although virtually never ARTs. Some plans will not cover treatment for a diagnosis of infertility but will cover treatment for the underlying cause, such as anovulation or endometriosis. This is true even though the treatment is frequently the same for either diagnosis and the reason for seeking treatment is usually to conceive.(14)

   RATIONALES FOR NO COVERAGE

   Both federal and state courts have held that health insurers are not required to cover any treatment not mandated by law and that exclusions are required to be clear, explicit and unambiguously spelled out in the policy. Insurers have put forth three primary arguments to justify the lack of coverage--(1) infertility is not an illness; (2) ART treatment is not medically necessary; and (3) ARTs are experimental. None of these arguments has been upheld by the courts.(15)

   It is still important, however, to review the reasonableness of the arguments. First, if it is found that infertility is a disability and that health insurance provisions fall under the aegis of the Americans with Disabilities Act, then even an explicit exclusion may no longer be sufficient to exclude coverage. Second, there are jurisdictions that have not addressed this issue, so the no-coverage arguments may be presented again.

1. Infertility Not an Illness

   The most common contention is that infertility is not an illness, but simply the result of an illness. In Marsh v. Reserve Life Insurance Co.(16) the plaintiff failed to recover costs from her health insurance provider for the expenses of an elective surgery to reverse a tubal ligation. While the Louisiana Court of Appeals did not find that voluntary sterilization was an illness, it clearly distinguished between voluntary sterilization and other physical causes for the inability to have children.

   The medical diagnosis of infertility was addressed headon in Witcraft v. Sundstrand Health and Disability Group Benefit Plan(17) by the Iowa Supreme Court, where a plaintiff s right to recover expenses from his health insurance company for sperm treatment and artificial insemination was in dispute. The plan argued that the condition of non-pregnancy was not an illness and that therefore artificial insemination to change that condition was not treatment of an "illness." The court...