On February 11, 2021, New York Governor Andrew Cuomo directed the Department of Financial Services (Department) to ensure that insurers cover fertility services immediately for same sex couples. On February 23, 2021, the Department released an Insurance Circular Letter, directing insurers to provide such coverage.
Though current New York Insurance Law requires insurers to cover infertility services, same sex couples must sometimes pay 6 or 12 months of out-of-pocket expenses for fertility treatments (such as testing and therapeutic donor insemination procedures) before qualifying for such coverage. This is because some carriers deny coverage to same sex couples based on the definition of “infertility” under the law.
Current insurance law defines “infertility” as “a disease or condition characterized by the incapacity to impregnate another person or conceive, defined by the failure to establish a clinical pregnancy after twelve months of regular, unprotected sexual intercourse or therapeutic donor insemination for a female thirty-five years or older. Earlier evaluation and treatment may be warranted based on an individual’s medical history or physical findings.”
Based off this definition, the Department recognizes that insurers have denied coverage for infertility treatments, such intrauterine insemination procedures, for some individuals who are unable to conceive without such treatment due to their sexual orientation or gender identity. As such, these individuals may be forced to incur high costs of basic fertility treatments for up to 12 months to demonstrate infertility and qualify for insurance coverage. This results in some individuals being forced to incur costs, due to their sexual orientation or gender identity, that heterosexual individuals do not need to incur.
As such, New York insurers must now provide immediate coverage for basic infertility treatments that are provided to individuals covered under an insurance policy who are unable to conceive due to their sexual orientation or gender identity in accordance with New York Insurance Law.