Right to IVF Act
This bill provides a statutory right to access fertility treatments (e.g., in vitro fertilization).
Specifically, under the bill, individuals have the right to access fertility treatments and to make decisions about the use of their reproductive genetic material (e.g., embryos) without limitation or interference. Health care providers and insurers have the right to provide and cover these services, respectively. Manufacturers of applicable drugs or devices also have the right to provide these drugs or devices.
The bill supersedes state laws that limit or otherwise interfere with the provision of fertility treatments as set out under this bill, including laws that require medically unnecessary procedures or services in conjunction with fertility treatments or that restrict the ability of individuals to receive fertility treatments based on marital status or sex (including sexual orientation or gender identity). The bill does not affect state health and safety regulations for medical facilities or health care providers that are in accordance with widely accepted and evidence-based medical standards and for which the purpose cannot be achieved in another, nonrestrictive manner.
The Department of Justice may bring civil actions against states, individuals, or entities that implement or enforce limitations or requirements that violate this bill. Individuals and health care providers may also bring civil actions.
In addition, the bill provides for coverage of fertility treatments under Medicare and Medicaid and for members of the uniformed services and veterans. It also requires private insurers that cover obstetrical services to also cover fertility treatments.
[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4445 Placed on Calendar Senate (PCS)]
<DOC>
Calendar No. 413
118th CONGRESS
2d Session
S. 4445
To protect and expand nationwide access to fertility treatment,
including in vitro fertilization.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 3, 2024
Ms. Duckworth (for herself, Mrs. Murray, Mr. Booker, Mr. Schumer, Ms.
Baldwin, Mr. Bennet, Mr. Blumenthal, Ms. Butler, Mr. Carper, Mr. Casey,
Mr. Coons, Mr. Durbin, Mr. Fetterman, Mrs. Gillibrand, Ms. Hassan, Mr.
Heinrich, Mr. Hickenlooper, Ms. Hirono, Mr. Kaine, Mr. King, Ms.
Klobuchar, Mr. Lujan, Mr. Markey, Mr. Merkley, Mr. Murphy, Mr. Padilla,
Mr. Reed, Ms. Rosen, Mr. Sanders, Mr. Schatz, Ms. Smith, Ms. Stabenow,
Ms. Warren, Mr. Welch, Mr. Whitehouse, Mr. Wyden, Mr. Warner, and Mr.
Brown) introduced the following bill; which was read the first time
June 4, 2024
Read the second time and placed on the calendar
_______________________________________________________________________
A BILL
To protect and expand nationwide access to fertility treatment,
including in vitro fertilization.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Right to IVF
Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Severability.
TITLE I--ACCESS TO FAMILY BUILDING
Sec. 101. Short title.
Sec. 102. Purposes.
Sec. 103. Definitions.
Sec. 104. Fertility treatment rights.
Sec. 105. Applicability and preemption.
TITLE II--VETERAN FAMILIES HEALTH SERVICES
Sec. 200. Short title.
Subtitle A--Reproductive and Fertility Preservation Assistance for
Members of the Uniformed Services
Sec. 201. Definitions.
Sec. 202. Provision of fertility treatment and counseling to certain
members of the uniformed services and
spouses, partners, and gestational
surrogates of such members.
Sec. 203. Establishment of fertility preservation procedures after an
injury or illness.
Sec. 204. Cryopreservation and storage of reproductive genetic material
of members of the uniformed services on
active duty.
Sec. 205. Assistance with and continuity of care regarding reproductive
and fertility preservation services.
Sec. 206. Coordination between Department of Defense and Department of
Veterans Affairs on furnishing of fertility
treatment and counseling.
Sec. 207. Regulations.
Subtitle B--Reproductive Assistance for Veterans
Sec. 211. Inclusion of fertility treatment and counseling under the
definition of medical services in title 38.
Sec. 212. Fertility treatment and counseling for certain veterans and
spouses, partners, and gestational
surrogates of such veterans.
Sec. 213. Assistance with and continuity of care regarding reproductive
and fertility preservation services.
Sec. 214. Coordination of reproduction and fertility research for
veterans.
TITLE III--ACCESS TO FERTILITY TREATMENT AND CARE
Sec. 301. Short title.
Sec. 302. Standards relating to benefits for fertility treatment.
Sec. 303. Requirement for State Medicaid plans to provide medical
assistance for fertility treatment.
Sec. 304. Medicare coverage of fertility treatment.
TITLE IV--FAMILY BUILDING FEHB FAIRNESS
Sec. 401. Short title.
Sec. 402. Fertility treatment benefits.
SEC. 2. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person, entity, government, or circumstance is held to be
unconstitutional, the remainder of this Act, or the application of such
provision to all other persons, entities, governments, or circumstances
shall not be affected thereby.
TITLE I--ACCESS TO FAMILY BUILDING
SEC. 101. SHORT TITLE.
This title may be cited as the ``Access to Family Building Act''.
SEC. 102. PURPOSES.
The purposes of this title are as follows:
(1) To permit patients to seek and receive fertility
treatment, including assisted reproductive technology services,
and to permit health care providers that choose to provide
fertility treatment, to provide such services without States
enacting harmful or unwarranted limitations or requirements
that single out the provision of assisted reproductive services
for restrictions that are not consistent with widely accepted
and evidence-based medical standards of care, and which do not
significantly advance reproductive health or the efficacy and
safety of fertility treatment, or make fertility treatment more
difficult to access.
(2) To promote the right and ability of a patient residing
in any State to choose to receive fertility treatment provided
in accordance with widely accepted and evidence-based medical
standards of care by a health care provider who chooses to
provide such services.
(3) To protect an individual's right to make decisions, in
consultation with the individual's health care provider, about
the most appropriate medical care to maximize the chance of
becoming pregnant and giving birth to a healthy, living, human
child with the help of fertility treatment.
SEC. 103. DEFINITIONS.
In this title:
(1) Fertility treatment.--The term ``fertility treatment''
includes the following:
(A) Preservation of human oocytes, sperm, or
embryos for later reproductive use.
(B) Artificial insemination, including intravaginal
insemination, intracervical insemination, and
intrauterine insemination.
(C) Assisted reproductive technology, including in
vitro fertilization and other treatments or procedures
in which reproductive genetic material, such as
oocytes, sperm, fertilized eggs, and embryos, are
handled, when clinically appropriate.
(D) Genetic testing of embryos.
(E) Medications prescribed or obtained over-the-
counter, as indicated for fertility.
(F) Gamete donation.
(G) Such other information, referrals, treatments,
procedures, medications, laboratory testing,
technologies, and services relating to fertility as the
Secretary of Health and Human Services determines
appropriate.
(2) Health care provider.--The term ``health care
provider'' means any entity or individual (including any
physician, nurse practitioner, physician assistant, pharmacist,
health care support personnel, clinical staff, and any other
individual, as determined by the Secretary of Health and Human
Services) that--
(A) is engaged or seeks to engage in the delivery
of fertility treatment, including through the provision
of evidence-based information, counseling, referrals,
or items and services that relate to, aid in, or
provide fertility treatment; and
(B) if required by State law to be licensed,
certified, or otherwise authorized to engage in the
delivery of such services--
(i) is so licensed, certified, or otherwise
authorized; or
(ii) would be so licensed, certified, or
otherwise authorized but for the fact that the
individual or entity has provided, is
providing, or plans to provide fertility
treatment in accordance with section 104.
(3) Health insurance issuer.--The term ``health insurance
issuer'' has the meaning given such term in section 2791(b) of
the Public Health Service Act (42 U.S.C. 300gg-91(b)).
(4) Manufacturer.--The term ``manufacturer'' means the
manufacturer of a drug or device approved, cleared, authorized,
or licensed under section 505, 510(k), 513(f)(2), or 515 of the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355, 360(k),
360c(f)(2), 360e) or section 351 of the Public Health Service
Act (42 U.S.C. 262) or otherwise legally marketed.
(5) State.--The term ``State'' includes each of the 50
States, the District of Columbia, Puerto Rico, each territory
and possession of the United States, and any political
subdivision thereof.
(6) Widely accepted and evidence-based medical standards of
care.--The term ``widely accepted and evidence-based medical
standards of care'' means any medical services, procedures, and
practices that are in accordance with the guidelines of the
American Society for Reproductive Medicine.
SEC. 104. FERTILITY TREATMENT RIGHTS.
(a) General Rule.--
(1) Individual rights.--An individual has a statutory right
under this title, without prohibition, limitation,
interference, or impediment, to the extent that such
prohibition, limitation, interference, or impediment in any way
or degree obstructs, delays, or affects commerce over which the
Federal Government has jurisdiction, to--
(A) receive fertility treatment from a health care
provider, in accordance with widely accepted and
evidence-based medical standards of care;
(B) continue or complete an ongoing fertility
treatment previously initiated by a health care
provider, in accordance with widely accepted and
evidence-based medical standards of care;
(C) make decisions and arrangements regarding the
donation, testing, use, storage, or disposition of
reproductive genetic material, such as oocytes, sperm,
fertilized eggs, and embryos; and
(D) establish contractual agreements with a health
care provider relating to the health care provider's
services in handling, testing, storing, shipping, and
disposing of the individual's reproductive genetic
material in accordance with widely accepted and
evidence-based medical standards of care.
(2) Health care provider rights.--A health care provider
has a statutory right under this title, without prohibition,
limitation, interference, or impediment, to the extent that
such prohibition, limitation, interference, or impediment in
any way or degree obstructs, delays, or affects commerce over
which the Federal Government has jurisdiction, to--
(A) provide, or assist with the provision of,
fertility treatment provided in accordance with widely
accepted and evidence-based medical standards of care;
(B) continue or complete the provision of, or
assistance with, fertility treatment that was lawful
when commenced and is provided in accordance with
widely accepted and evidence-based medical standards of
care;
(C) provide for, or assist with, the testing, use,
storage, or disposition of reproductive genetic
material, such as oocytes, sperm, fertilized eggs, and
embryos, in accordance with widely accepted and
evidence-based medical standards of care; and
(D) establish contractual agreements with
individuals or manufacturers relating to the health
care provider's services in handling, testing, storing,
shipping, and disposing of the individual's
reproductive genetic material.
(3) Health insurance issuer rights.--A health insurance
issuer has a statutory right under this title, without
prohibition, limitation, interference, or impediment, to the
extent that such prohibition, limitation, interference, or
impediment in any way or degree obstructs, delays, or affects
commerce over which the Federal Government has jurisdiction, to
cover the provision of fertility treatment provided in
accordance with widely accepted and evidence-based medical
standards of care.
(4) Manufacturer rights.--A manufacturer of a drug or
device that is approved, cleared, authorized, or licensed under
section 505, 510(k), 513(f)(2), or 515 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 355; 360(k); 360c(f)(2);
360e) or section 351 of the Public Health Service Act (42
U.S.C. 262) or otherwise legally marketed and intended for use
in the provision of fertility treatment, including the storage
or transport of oocytes, gametes, fertilized eggs, and embryos,
has a statutory right under this title, without prohibition,
limitation, interference, or impediment, to the extent that
such prohibition, limitation, interference, or impediment in
any way or degree obstructs, delays, or affects commerce over
which the Federal Government has jurisdiction, to manufacture,
import, market, sell, and distribute such drug or device.
(b) State Regulation of Medicine.--The enforcement of State health
and safety law regarding medical facilities or health care providers
does not constitute a violation of subsection (a) if--
(1) such regulations are in accordance with widely accepted
and evidence-based medical standards of care for providing
fertility treatment; and
(2) the safety or health objective cannot be advanced by a
different means that does not prohibit, limit, interfere with,
or impede the rights described in subsection (a).
(c) Enforcement.--
(1) The attorney general.--
(A) In general.--The Attorney General may commence
a civil action on behalf of the United States against
any State; an individual, employee, official, agency
head, contractor, organization, or instrumentality
acting for, or on behalf of, such a State; or any
individual acting under the color of, or pursuant to,
State law, that implements, enforces, or threatens to
enforce a limitation or requirement that prohibits,
limits, interferes with, or impedes the statutory
rights of an individual, a health care provider, a
health insurance issuer, or a manufacturer under
subsection (a).
(B) Effect of violations.--The court shall hold
unlawful and set aside a limitation or requirement
described in subparagraph (A) if it is in violation of
subsection (a).
(2) Private right of action.--
(A) In general.--Any individual or entity adversely
affected by an alleged violation of subsection (a) may
commence a civil action against an individual,
employee, official, agency head, contractor,
organization, or instrumentality acting for, or on
behalf of, such a State that enacts, implements, or
enforces a limitation or requirement that prohibits,
limits, interferes with, or impedes the statutory
rights of an individual, a health care provider, a
health insurance issuer, or a manufacturer under
subsection (a).
(B) Effect of violations.--The court shall hold
unlawful and enjoin a limitation or requirement
described in subparagraph (A) if it is in violation of
subsection (a).
(3) Health care provider.--
(A) In general.--A health care provider may
commence a civil action for relief on such provider's
own behalf, on behalf of the provider's staff, or on
behalf of the provider's patients who are or may be
adversely affected by an alleged violation of
subsection (a).
(B) Effect of violations.--The court shall hold
unlawful and enjoin a limitation or requirement
described in subparagraph (A) if it is in violation of
subsection (a).
(4) Equitable relief.--In any action under this section,
the court may award appropriate equitable relief, including
temporary, preliminary, or permanent injunctive relief.
(5) Costs.--
(A) In general.--In any action under this section,
the court shall award costs of litigation, as well as
reasonable attorney's fees, to any prevailing
plaintiff.
(B) Liability of plaintiffs.--A plaintiff shall not
be liable to a defendant for costs or attorney's fees
in any non-frivolous action under this section unless
such costs or attorney's fees are imposed by the court
as part of sanctions for violations committed during
the discovery process.
(6) Jurisdiction.--The district courts of the United States
shall have jurisdiction over proceedings under this section and
shall exercise the same without regard to whether the party
aggrieved shall have exhausted any administrative or other
remedies that may be provided for by law.
(7) Right to remove.--
(A) In general.--Any party shall have a right to
remove an action brought under this subsection to the
district court of the United States for the district
and division embracing the place where such action is
pending.
(B) Review.--An order remanding the case to the
State court from which it was removed under this
paragraph is immediately reviewable by appeal or
otherwise.
(d) Regulations.--Not later than 180 days after the date of
enactment of this Act, the Secretary of Health and Human Services shall
promulgate regulations to carry out this section.
(e) Rules of Construction.--
(1) In general.--For purposes of this title, a State law,
or the administration, implementation, or enforcement of a
State law, constitutes a prohibition, limitation, interference,
or impediment on a health care provider providing, an
individual receiving, a health insurance issuer covering, or a
manufacturer marketing drugs or devices for fertility
treatment, provided in accordance with widely accepted and
evidence-based medical standards of care, as described in
subsection 104, if the administration, implementation,
interpretation, or enforcement of such law has an effect that--
(A) imposes requirements or limitations that are
inconsistent with providing, receiving, providing
health insurance coverage for, or providing drugs or
devices for fertility treatment in accordance with
widely accepted and evidence-based medical standards of
care or that otherwise violate the purpose and
requirements of this Act, which may include--
(i) requiring that a health care provider
provide, and patients undertake, medically
unnecessary procedures and services, including
tests and procedures, providing medically
inaccurate information regarding fertility
treatment, or requiring additional unnecessary
in-person visits to a health care provider,
that are inconsistent with widely accepted and
evidence-based medical standards of care;
(ii) imposing limitations or requirements
concerning physical offices, clinics,
facilities, equipment, staffing, or hospital
transfer arrangements of facilities where
fertility treatment is provided, or the
credentials or hospital privileges or status of
personnel at such facilities, that are not
consistent with widely accepted and evidence-
based medical standards of care; or
(iii) limiting a health care provider's
right or ability to provide, or a patient's
right to receive, or imposing limitations that
reduce the efficacy of, fertility treatment in
accordance with widely accepted and evidence-
based medical standards of care, including
retrieval of multiple eggs during oocyte
retrieval; performance of insemination
procedures, including intrauterine
insemination; intracytoplasmic sperm injections
to fertilize multiple human eggs; and
cryopreservation of one or more eggs or embryos
for fertility preservation and subsequent
transfer, if determined appropriate by the
health care provider and patient;
(B) infringes, limits, or restricts the ability of
a health care provider, patient, health insurance
issuer, or manufacturer, to exercise or enforce their
statutory rights under this title on the basis of
marital status, sex (including sexual orientation and
gender identity) or any other protected class that is
covered by Federal law;
(C) limits a health care provider's or patient's
right or ability to determine the most appropriate
disposition of fertilized eggs or embryos, including by
defining a gamete or embryo in such a way as to prevent
the disposition of gametes and embryos;
(D) limits a health care provider's ability to
provide, or a patient's ability to receive, fertility
treatment via telemedicine, in accordance with widely
accepted and evidence-based medical standards of care;
(E) limits or prohibits a health care provider's
ability to provide, or a patient's ability to receive,
fertility counseling or fertility treatment based on
the residency of the patient, or prohibits or limits
the ability of any individual to assist or support a
patient seeking fertility treatment;
(F) imposes requirements or limitations that compel
health care providers to provide, or patients to
receive, medically unnecessary care, or withhold
medically necessary care, in a manner that is not
consistent with widely accepted and evidence-based
medical standards of care for fertility treatment,
including mandating the transfer of embryos that a
health care provider would not reasonably expect, based
on widely accepted and evidence-based medical standards
of care, to lead to a healthy pregnancy or a live
birth;
(G) limits a health care provider's right or
ability to prescribe or dispense, or a patient's right
or ability to receive or use, medications for fertility
treatment in accordance with widely accepted and
evidence-based medical standards of care, unless such a
limitation is generally applicable to the prescription,
dispensing, or distribution of medications; or
(H) limits a health care provider's right or
ability to perform a human sperm retrieval procedure in
accordance with widely accepted and evidence-based
medical standards of care.
(2) Clarification.--The descriptions of specific State laws
that would violate the statutory rights and protections
described in paragraph (1) shall not be construed to limit
potential violations of the statutory rights and protections
under this title to only the restrictions and limitations
listed in paragraph (1), and potential violations of this title
may result from novel State restrictions and limitations that
are not listed under paragraph (1).
(3) Exclusion.--It shall not constitute a prohibition,
limitation, interference, or impediment to a health care
provider providing, an individual receiving, a health insurance
issuer covering, or a manufacturer marketing a drug or device
for purposes of, fertility treatment under this title for an
entity to act in compliance with the Food and Drug
Administration's regulation of drugs, devices, biological
products, human cells, tissues, or cellular or tissue-based
products used in fertility treatment, consistent with widely
accepted and evidence-based medical standards of care for
fertility treatment.
SEC. 105. APPLICABILITY AND PREEMPTION.
(a) In General.--
(1) General application.--
(A) Effect on state law.--This title supersedes any
State law that is inconsistent with the statutory
rights established under this title and precludes the
implementation of such a law, whether statutory, common
law, or otherwise, and whether adopted before or after
the date of enactment of this Act.
(B) Prohibition.--No State shall administer,
implement, or enforce any law, rule, regulation,
standard, or other provision having the force and
effect of law that conflicts with any provision of this
title, notwithstanding any other provision of Federal
law.
(2) Exclusion.--Preemption of State law under paragraph (1)
does not apply to--
(A) State law regarding the resolution of disputes
between 2 individuals with rights described in section
104(a)(1) with respect to the same reproductive genetic
material, such as oocytes, sperm, fertilized eggs, and
embryos; or
(B) any other State law, to the extent that such
law does not conflict with this title and protects an
individual's right and ability to receive fertility
treatment in accordance with widely accepted and
evidence-based medical standards of care, including any
such law that holds a health care provider accountable
for not providing fertility treatment in accordance
with widely accepted and evidence-based medical
standards of care.
(3) Preservation of federal public health authorities.--
Nothing in this title shall have the effect of superseding,
negating, or limiting provisions of Federal law, including the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) or
the Public Health Service Act (42 U.S.C. 201 et seq.), and
regulations promulgated under such statutes, with respect to
the regulation of drugs, devices, biological products, human
cells, tissues, or cellular or tissue-based products used in
fertility treatment.
(4) Preservation of hipaa rules.--Nothing in this title
shall have the effect of superseding, negating, or limiting the
provisions of the privacy, security, and breach notification
regulations in parts 160 and 164 of title 45, Code of Federal
Regulations (or successor regulations).
(5) Subsequently enacted federal legislation.--Federal
statutory law adopted after the date of the enactment of this
Act is subject to this title unless such law explicitly
excludes such application by reference to this title.
(b) Defense.--In any cause of action against an individual or
entity who is subject to a limitation or requirement that violates this
title, in addition to the remedies specified in section 104(b), this
title shall also apply to, and may be raised as a defense by, such an
individual or entity.
TITLE II--VETERAN FAMILIES HEALTH SERVICES
SEC. 200. SHORT TITLE.
This title may be cited as the ``Veteran Families Health Services
Act''.
Subtitle A--Reproductive and Fertility Preservation Assistance for
Members of the Uniformed Services
SEC. 201. DEFINITIONS.
In this subtitle:
(1) Active duty.--The term ``active duty'' has the meaning
given that term in section 101(18) of title 37, United States
Code.
(2) Uniformed services.--The term ``uniformed services''
has the meaning given that term in section 101(a)(5) of title
10, United States Code.
SEC. 202. PROVISION OF FERTILITY TREATMENT AND COUNSELING TO CERTAIN
MEMBERS OF THE UNIFORMED SERVICES AND SPOUSES, PARTNERS,
AND GESTATIONAL SURROGATES OF SUCH MEMBERS.
(a) Fertility Treatment and Counseling.--
(1) In general.--The Secretary of Defense shall make
available fertility treatment and counseling to a member of the
uniformed services or a spouse, partner, or gestational
surrogate of such a member.
(2) Eligibility for treatment and counseling.--Fertility
treatment and counseling shall be furnished under paragraph (1)
without regard to the sex, sex characteristics, gender
identity, sexual orientation, infertility diagnosis, or marital
status of the member of the uniformed services or their
partner.
(3) In vitro fertilization.--In the case of in vitro
fertilization treatment furnished under paragraph (1), the
Secretary may furnish to an individual under such paragraph--
(A) not more than three completed oocyte
retrievals; and
(B) unlimited embryo transfers.
(b) Procurement of Reproductive Genetic Material.--If a member of
the uniformed services is unable to provide their reproductive genetic
material, such as oocytes, sperm, fertilized eggs, and embryos, for
purposes of fertility treatment under subsection (a), the Secretary
shall, at the election of such member, allow such member to receive
such treatment with donated reproductive genetic material and pay or
reimburse such member the reasonable costs of procuring such material
from a donor.
(c) Rules of Construction.--
(1) Impact on existing authority.--Nothing in this section
shall be construed to rescind the authority of the Secretary to
provide in vitro fertilization benefits pursuant to section
1074(c)(4) of title 10, United States Code.
(2) Sourcing of gestational surrogate or reproductive
genetic material.--Nothing in this section shall be construed
to require the Secretary--
(A) to find or certify a gestational surrogate for
a member of the uniformed services or to connect a
gestational surrogate with such a member; or
(B) to find or certify reproductive genetic
material, such as oocytes, sperm, fertilized eggs, and
embryos, from a donor for a member of the uniformed
services or to connect such a member with reproductive
genetic material from a donor.
(d) Definitions.--In this section:
(1) Fertility treatment.--The term ``fertility treatment''
includes the following:
(A) Preservation of human oocytes, sperm, or
embryos for later reproductive use.
(B) Artificial insemination, including intravaginal
insemination, intracervical insemination, and
intrauterine insemination.
(C) Assisted reproductive technology, including in
vitro fertilization and other treatments or procedures
in which reproductive genetic material, such as
oocytes, sperm, fertilized eggs, and embryos, are
handled, when clinically appropriate.
(D) Genetic testing of embryos.
(E) Medications prescribed or obtained over-the-
counter, as indicated for fertility.
(F) Gamete donation.
(G) Such other information, referrals, treatments,
procedures, medications, laboratory testing,
technologies, and services relating to fertility as the
Secretary of Defense determines appropriate.
(2) Gestational surrogate.--The term ``gestational
surrogate'' means an individual who agrees to become pregnant
through in vitro fertilization under a gestational surrogacy
agreement using gametes that are not the gametes of that
individual.
(3) Partner.--The term ``partner'', with respect to a
member of the uniformed services, means an individual selected
by the member who agrees to be a parent, with the member, of a
child born as a result of the use of any fertility treatment
under this section.
SEC. 203. ESTABLISHMENT OF FERTILITY PRESERVATION PROCEDURES AFTER AN
INJURY OR ILLNESS.
(a) In General.--The Secretary of Defense, acting through the
Assistant Secretary of Defense for Health Affairs, shall establish
procedures for the retrieval of reproductive genetic material, such as
oocytes, sperm, fertilized eggs, and embryos, as soon as medically
appropriate, from a member of the uniformed services in cases in which
the fertility of such member is potentially jeopardized as a result of
an injury or illness incurred or aggravated while serving on active
duty in the uniformed services in order to preserve the medical options
of such member.
(b) Inclusion of Information in Advanced Directives and Military
Testamentary Instruments.--The Secretary of Defense shall ensure that
any advance medical directive, as defined in section 1044c(b) of title
10, United States Code, or military testamentary instrument, as defined
in section 1044d(b) of such title, completed by a member of the
uniformed services includes questions about the consent of the member
to fertility preservation procedures under subsection (a).
(c) Disposal of Reproductive Genetic Material.--Subject to section
204, in accordance with regulations prescribed by the Secretary for
purpose of this subsection, the Secretary shall dispose of reproductive
genetic material retrieved from a member of the uniformed services
under subsection (a)--
(1) with the specific consent of the member; or
(2) if the member--
(A) has lost the ability to consent permanently, as
determined by a medical professional, or has died; and
(B) has not specified the use of their reproductive
genetic material in an advance directive or
testamentary instrument executed by the member.
SEC. 204. CRYOPRESERVATION AND STORAGE OF REPRODUCTIVE GENETIC MATERIAL
OF MEMBERS OF THE UNIFORMED SERVICES ON ACTIVE DUTY.
(a) In General.--The Secretary of Defense shall provide members of
the uniformed services on active duty in the uniformed services with
the opportunity to cryopreserve and store their reproductive genetic
material, such as oocytes, sperm, fertilized eggs, and embryos, prior
to--
(1) deployment to a combat zone; or
(2) a duty assignment that includes a hazardous assignment,
including--
(A) assignments resulting in exposure to
perfluoroalkyl or polyfluoroalkyl substances; and
(B) such other assignments as determined by the
Secretary.
(b) Period of Time.--
(1) In general.--The Secretary shall provide for the
cryopreservation and storage of reproductive genetic material
of any member of the uniformed services under subsection (a) in
a facility of the Department of Defense or of a private entity
and the transportation of such material, at no cost to the
member, until the date that is one year after the retirement,
separation, or release of the member from the uniformed
services.
(2) Continued cryopreservation and storage.--At the end of
the one-year period specified in paragraph (1), the Secretary
shall permit an individual whose reproductive genetic material
was cryopreserved and stored as described in that paragraph to
select, including pursuant to an advance medical directive or
military testamentary instrument completed under subsection
(c), one of the following options:
(A) To continue such cryopreservation and storage
in such facility with the cost of such cryopreservation
and storage borne by the individual.
(B) To transfer the material to a private
cryopreservation and storage facility selected by the
individual.
(C) To transfer the material to a facility of the
Department of Veterans Affairs if cryopreservation and
storage is available to the individual at such facility
and the individual is eligible for such services.
(3) Disposal of reproductive genetic material.--
(A) No selection.--If an individual described in
paragraph (2) does not make a selection under
subparagraph (A), (B), or (C) of such paragraph, the
Secretary may dispose of the reproductive genetic
material of the individual not earlier than the date
that is 90 days after the end of the one-year period
specified in paragraph (1) with respect to the
individual.
(B) Election by individual.--At the election of an
individual described in paragraph (2), the Secretary
may dispose of the reproductive genetic material of the
individual.
(c) Advance Medical Directive and Military Testamentary
Instrument.--A member of the uniformed services who elects to
cryopreserve and store their reproductive genetic material under this
section must complete an advance medical directive, as defined in
section 1044c(b) of title 10, United States Code, and a military
testamentary instrument, as defined in section 1044d(b) of such title,
that explicitly specifies the use of their cryopreserved and stored
reproductive genetic material if such member dies or otherwise loses
the capacity to consent to the use of their cryopreserved and stored
reproductive genetic material.
(d) Agreements.--To carry out this section, the Secretary may enter
into agreements with private entities that provide cryopreservation,
transportation, and storage services for reproductive genetic material.
SEC. 205. ASSISTANCE WITH AND CONTINUITY OF CARE REGARDING REPRODUCTIVE
AND FERTILITY PRESERVATION SERVICES.
The Secretary of Defense shall ensure that employees of the
Department of Defense assist members of the uniformed services--
(1) in navigating the services provided under this
subtitle;
(2) in finding a provider that meets the needs of such
members with respect to such services; and
(3) in continuing the receipt of such services without
interruption during a permanent change of station for such
members.
SEC. 206. COORDINATION BETWEEN DEPARTMENT OF DEFENSE AND DEPARTMENT OF
VETERANS AFFAIRS ON FURNISHING OF FERTILITY TREATMENT AND
COUNSELING.
(a) In General.--The Secretary of Defense and the Secretary of
Veterans Affairs shall share best practices and facilitate referrals,
as they consider appropriate, on the furnishing of fertility treatment
and counseling to individuals eligible for the receipt of such
counseling and treatment from the Secretaries.
(b) Memorandum of Understanding.--The Secretary of Defense and the
Secretary of Veterans Affairs shall enter into a memorandum of
understanding--
(1) providing that the Secretary of Defense will ensure
access by the Secretary of Veterans Affairs to reproductive
genetic material, such as oocytes, sperm, fertilized eggs, and
embryos, of veterans stored by the Department of Defense for
purposes of furnishing fertility treatment under section 1720K
of title 38, United States Code, as added by section 212(a);
and
(2) authorizing the Department of Veterans Affairs to
compensate the Department of Defense for the cryopreservation,
transportation, and storage of reproductive genetic material of
veterans under section 204(b)(2)(A).
SEC. 207. REGULATIONS.
Not later than two years after the date of the enactment of this
Act, the Secretary of Defense shall prescribe regulations to carry out
this subtitle.
Subtitle B--Reproductive Assistance for Veterans
SEC. 211. INCLUSION OF FERTILITY TREATMENT AND COUNSELING UNDER THE
DEFINITION OF MEDICAL SERVICES IN TITLE 38.
Section 1701(6) of title 38, United States Code, is amended by
adding at the end the following new subparagraph:
``(J) Fertility treatment and counseling under
section 1720K of this title.''.
SEC. 212. FERTILITY TREATMENT AND COUNSELING FOR CERTAIN VETERANS AND
SPOUSES, PARTNERS, AND GESTATIONAL SURROGATES OF SUCH
VETERANS.
(a) In General.--Subchapter II of chapter 17 of title 38, United
States Code, is amended by adding at the end the following new section:
``Sec. 1720K. Fertility treatment and counseling for certain veterans
and spouses, partners, and gestational surrogates of such
veterans
``(a) Requirement.--
``(1) In general.--Notwithstanding any other provision of
law, including the surrogacy laws of any State, the Secretary
shall furnish fertility treatment and counseling for the
benefit of a covered veteran to the veteran and the spouse,
partner, gamete donor, or gestational surrogate of the veteran
if the veteran, and the spouse, partner, gamete donor, or
gestational surrogate of the veteran, as applicable, each
provide informed consent for such treatment and counseling,
including for each cycle of treatment authorized under this
section, through a process prescribed by the Secretary.
``(2) Provision of treatment and counseling.--Fertility
treatment and counseling shall be furnished under paragraph (1)
without regard to the sex, sexual characteristics, gender
identity, sexual orientation, infertility diagnosis, or marital
status of the covered veteran or their partner.
``(3) In vitro fertilization.--In the case of in vitro
fertilization treatment furnished under paragraph (1), the
Secretary may furnish to an individual under such paragraph--
``(A) not more than three completed oocyte
retrievals; and
``(B) unlimited embryo transfers.
``(4) Copayment.--The Secretary shall only furnish
fertility treatment and counseling under paragraph (1) to a
covered veteran who is required to pay to the United States a
copayment amount as a condition for the receipt of hospital
care, medical services, or medications under this chapter if
the covered veteran agrees to pay such applicable copayment
amount to the United States for such treatment and counseling.
``(b) Procurement of Reproductive Genetic Material.--
``(1) In general.--If a covered veteran is unable to
provide their reproductive genetic material for purposes of
fertility treatment under subsection (a), the Secretary shall,
at the election of such veteran--
``(A) allow such veteran to receive such treatment
with donated reproductive genetic material, if the
donor provides informed consent for use of such
material; and
``(B) pay or reimburse the veteran, donor, or a
party acting on behalf of the donor the reasonable
costs of procuring such material from the donor.
``(2) Other expenses.--The Secretary may pay or reimburse a
covered veteran a reasonable amount for personal travel and
incidental expenses associated with procuring material from a
donor under paragraph (1).
``(c) Outreach and Training.--The Secretary shall carry out an
outreach and training program to ensure veterans and health care
providers of the Department are aware of--
``(1) the availability of and eligibility requirements for
fertility treatment and counseling under this section; and
``(2) any changes to fertility treatment and counseling
covered under this section.
``(d) Ownership, Use, or Disposition of Reproductive Genetic
Material.--
``(1) In general.--Issues or disputes regarding ownership
of reproductive genetic material or future use or disposition
of such material shall be the sole responsibility of the
covered veteran, the spouse, partner, or gestational surrogate
of the veteran, as applicable, and the private facility storing
such material.
``(2) Agreement regarding donated reproductive genetic
material.--As a condition of the use of donated gametes or
embryos under this section, the third-party donor and a
provider of fertility treatment that has entered into a
contract or agreement with the Secretary to provide such
treatment under this section are required to enter into an
arrangement or agreement governing the terms of the donation,
to include ultimate disposition of any remaining gametes or
embryos once a covered veteran has exhausted the fertility
treatment available under this section, unless the veteran or
the spouse or partner of the veteran has agreed to assume
liability for the continued preservation of any remaining
gametes or embryos and the Department is not party to the
arrangement or agreement for such continued preservation.
``(3) Role of department.--The role of the Secretary under
this section is limited to furnishing the treatment and
counseling required under this section when requested by a
covered veteran and determined necessary by the Secretary.
``(4) Ownership and custody of reproductive genetic
material.--The Secretary will not have ownership or custody of
any reproductive genetic material obtained pursuant to
treatment under this section and will not be involved in the
ultimate disposition of such material or disputes between or
among any parties with respect to such material.
``(e) Rule of Construction.--Nothing in this section shall be
construed to require the Secretary--
``(1) to find or certify a gestational surrogate for a
covered veteran or to connect a gestational surrogate with a
covered veteran; or
``(2) to furnish maternity care to a covered veteran or
spouse, partner, or gestational surrogate of a covered veteran
beyond what is otherwise required or authorized by law.
``(f) Definitions.--In this section:
``(1) The term `covered veteran' means a veteran who is
enrolled in the system of annual patient enrollment established
under section 1705(a) of this title.
``(2) The term `fertility treatment' includes the
following:
``(A) Preservation of human oocytes, sperm, or
embryos for later reproductive use.
``(B) Artificial insemination, including
intravaginal insemination, intracervical insemination,
and intrauterine insemination.
``(C) Assisted reproductive technology, including
in vitro fertilization and other treatments or
procedures in which reproductive genetic material, such
as oocytes, sperm, fertilized eggs, and embryos, are
handled, when clinically appropriate.
``(D) Genetic testing of embryos.
``(E) Medications prescribed or obtained over-the-
counter, as indicated for fertility.
``(F) Gamete donation.
``(G) Such other information, referrals,
treatments, procedures, medications, laboratory
testing, technologies, and services relating to
fertility as the Secretary determines appropriate.
``(3) The term `gestational surrogate' means an individual
who agrees to become pregnant through in vitro fertilization
under a gestational surrogacy agreement using gametes that are
not the gametes of that individual.
``(4) The term `partner', with respect to a covered
veteran, means an individual selected by the veteran who agrees
to be a parent, with the veteran, of a child born as a result
of the use of any fertility treatment under this section.''.
(b) Clerical Amendment.--The table of sections at the beginning of
subchapter II of chapter 17 of such title is amended by inserting after
the item relating to section 1720J the following new item:
``1720K. Fertility treatment and counseling for certain veterans and
spouses, partners, and gestational
surrogates of such veterans.''.
(c) Sunset of Existing Authority.--The authority under section 234
of the Military Construction, Veterans Affairs, and Related Agencies
Appropriations Act, 2024 (division A of Public Law 118-42), or any
similar authority subsequently enacted by law, shall cease on the
effective date of regulations prescribed to carry out section 1720K of
title 38, United States Code, as added by subsection (a).
SEC. 213. ASSISTANCE WITH AND CONTINUITY OF CARE REGARDING REPRODUCTIVE
AND FERTILITY PRESERVATION SERVICES.
The Secretary of Veterans Affairs shall ensure that employees of
the Department of Veterans Affairs assist veterans--
(1) in navigating the services provided under this subtitle
and the amendments made by this subtitle;
(2) in finding a provider that meets the needs of such
veterans with respect to such services; and
(3) in continuing the receipt of such services without
interruption if such veterans move to a different geographic
location.
SEC. 214. COORDINATION OF REPRODUCTION AND FERTILITY RESEARCH FOR
VETERANS.
(a) In General.--Subchapter II of chapter 73 of title 38, United
States Code, is amended by adding at the end the following new section:
``Sec. 7330E. Coordination of reproduction and fertility research for
veterans
``(a) Coordination of Research Required.--The Secretary shall
coordinate with the Secretary of Defense and the Secretary of Health
and Human Services to conduct research to improve the ability of the
Department of Veterans Affairs to meet the long-term reproductive
health care needs of veterans who have a condition that affects the
ability of the individual to reproduce.
``(b) Dissemination of Information.--The Secretary shall ensure
that information produced by the research under this section that may
be useful for other activities of the Department is disseminated
throughout the Department.''.
(b) Clerical Amendment.--The table of sections at the beginning of
subchapter II of chapter 73 of such title is amended by inserting after
the item relating to section 7330D the following new item:
``7330E. Coordination of reproduction and fertility research for
veterans.''.
TITLE III--ACCESS TO FERTILITY TREATMENT AND CARE
SEC. 301. SHORT TITLE.
This title may be cited as the ``Access to Fertility Treatment and
Care Act''.
SEC. 302. STANDARDS RELATING TO BENEFITS FOR FERTILITY TREATMENT.
(a) In General.--
(1) PHSA.--Part D of title XXVII of the Public Health
Service Act (42 U.S.C. 300gg-111 et seq.) is amended by adding
at the end the following:
``SEC. 2799A-11. STANDARDS RELATING TO BENEFITS FOR FERTILITY
TREATMENT.
``(a) In General.--A group health plan or a health insurance issuer
offering group or individual health insurance coverage shall provide
coverage for fertility treatment, if such plan or coverage provides
coverage for obstetrical services.
``(b) Definition.--In this section, the term `fertility treatment'
includes the following:
``(1) Preservation of human oocytes, sperm, or embryos for
later reproductive use.
``(2) Artificial insemination, including intravaginal
insemination, intracervical insemination, and intrauterine
insemination.
``(3) Assisted reproductive technology, including in vitro
fertilization and other treatments or procedures in which
reproductive genetic material, such as oocytes, sperm,
fertilized eggs, and embryos, are handled, when clinically
appropriate.
``(4) Genetic testing of embryos.
``(5) Medications prescribed or obtained over-the-counter,
as indicated for fertility.
``(6) Gamete donation.
``(7) Such other information, referrals, treatments,
procedures, medications, laboratory testing, technologies, and
services relating to fertility as the Secretary determines
appropriate.
``(c) Required Coverage.--A group health plan and a health
insurance issuer offering group or individual health insurance coverage
that includes coverage for obstetrical services shall provide coverage
for fertility treatment determined appropriate by the health care
provider, regardless of whether the participant, beneficiary, or
enrollee receiving such treatment has been diagnosed with infertility
as defined by the American Society for Reproductive Medicine, if the
treatment is performed at, or prescribed by, a medical facility that is
in compliance with relevant standards set by an appropriate Federal
agency.
``(d) Limitation.--Cost-sharing, including deductibles and
coinsurance, or other limitations for fertility treatment may not be
imposed with respect to the services required to be covered under
subsection (c) to the extent that such cost-sharing exceeds the cost-
sharing applied to other medical services under the group health plan
or health insurance coverage or such other limitations are different
from limitations imposed with respect to such medical services, except
where such limitation is more favorable with respect to fertility
treatment. The Secretary shall promulgate interim final regulations to
carry out this subsection, notwithstanding the notice and comment
requirements of section 553 of title 5, United States Code.
``(e) Prohibitions.--A group health plan and a health insurance
issuer offering group or individual health insurance coverage may not--
``(1) provide incentives (monetary or otherwise) to a
participant, beneficiary, or enrollee to encourage such
participant, beneficiary, or enrollee not to seek or obtain
fertility treatment to which such participant, beneficiary, or
enrollee is entitled under this section or to providers to
induce such providers not to provide medically appropriate
fertility treatments to participants, beneficiaries, or
enrollees;
``(2) prohibit a provider from discussing with a
participant, beneficiary, or enrollee fertility treatment
relating to this section;
``(3) penalize or otherwise reduce or limit the
reimbursement of a provider because such provider provided
fertility treatment to a qualified participant, beneficiary, or
enrollee in accordance with this section; or
``(4) on the ground prohibited under title VI of the Civil
Rights Act of 1964, title IX of the Education Amendments of
1972, the Age Discrimination Act of 1975, section 504 of the
Rehabilitation Act of 1973, or section 1557 of the Patient
Protection and Affordable Care Act, exclude any individual from
coverage in accordance with this section, or discriminate
against any individual with respect to such coverage.
``(f) Rule of Construction.--Nothing in this section shall be
construed to require a participant, beneficiary, or enrollee to undergo
fertility treatment.
``(g) Notice.--A group health plan and a health insurance issuer
offering group or individual health insurance coverage shall provide
notice to each participant, beneficiary, and enrollee under such plan
or coverage regarding the coverage required by this section in
accordance with regulations promulgated by the Secretary. Such notice
shall be in writing and prominently positioned in any literature or
correspondence made available or distributed by the plan or issuer and
shall be transmitted--
``(1) not later than the earlier of--
``(A) in the first standard mailing made by the
plan or issuer to the participant, beneficiary, or
enrollee following the effective date of such
regulations;
``(B) as part of any yearly informational packet
sent to the participant, beneficiary, or enrollee; or
``(C) January 1, 2026;
``(2) in the case of a participant, beneficiary, or
enrollee not enrolled in the plan or coverage on the date of
transmission under paragraph (1), upon initial enrollment of
such participant, beneficiary, or enrollee; and
``(3) on an annual basis after the transmission under
paragraph (1) or (2).
``(h) Level and Type of Reimbursements.--Nothing in this section
shall be construed to prevent a group health plan or a health insurance
issuer offering group or individual health insurance coverage from
negotiating the level and type of reimbursement with a provider for
care provided in accordance with this section.''.
(2) ERISA.--
(A) In general.--Subpart B of part 7 of subtitle B
of title I of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1185 et seq.) is amended by
adding at the end the following:
``SEC. 726. STANDARDS RELATING TO BENEFITS FOR FERTILITY TREATMENT.
``(a) In General.--A group health plan or a health insurance issuer
offering group health insurance coverage shall provide coverage for
fertility treatment, if such plan or coverage provides coverage for
obstetrical services.
``(b) Definition.--In this section, the term `fertility treatment'
includes the following:
``(1) Preservation of human oocytes, sperm, or embryos for
later reproductive use.
``(2) Artificial insemination, including intravaginal
insemination, intracervical insemination, and intrauterine
insemination.
``(3) Assisted reproductive technology, including in vitro
fertilization and other treatments or procedures in which
reproductive genetic material, such as oocytes, sperm,
fertilized eggs, and embryos, are handled, when clinically
appropriate.
``(4) Genetic testing of embryos.
``(5) Medications prescribed or obtained over-the-counter,
as indicated for fertility.
``(6) Gamete donation.
``(7) Such other information, referrals, treatments,
procedures, medications, laboratory testing, technologies, and
services relating to fertility as the Secretary of Health and
Human Services determines appropriate.
``(c) Required Coverage.--A group health plan and a health
insurance issuer offering group health insurance coverage that includes
coverage for obstetrical services shall provide coverage for fertility
treatment determined appropriate by the health care provider,
regardless of whether the participant or beneficiary receiving such
treatment has been diagnosed with infertility as defined by the
American Society for Reproductive Medicine, if the treatment is
performed at, or prescribed by, a medical facility that is in
compliance with relevant standards set by an appropriate Federal
agency.
``(d) Limitation.--Cost-sharing, including deductibles and
coinsurance, or other limitations for fertility treatment may not be
imposed with respect to the services required to be covered under
subsection (c) to the extent that such cost-sharing exceeds the cost-
sharing applied to other medical services under the group health plan
or health insurance coverage or such other limitations are different
from limitations imposed with respect to such medical services, except
where such limitation is more favorable with respect to fertility
treatment. The Secretary shall promulgate interim final regulations to
carry out this subsection, notwithstanding the notice and comment
requirements of section 553 of title 5, United States Code.
``(e) Prohibitions.--A group health plan and a health insurance
issuer offering group health insurance coverage may not--
``(1) provide incentives (monetary or otherwise) to a
participant or beneficiary to encourage such participant or
beneficiary not to seek or obtain fertility treatment to which
such participant or beneficiary is entitled under this section
or to providers to induce such providers not to provide
medically appropriate fertility treatments to participants or
beneficiaries;
``(2) prohibit a provider from discussing with a
participant or beneficiary fertility treatment relating to this
section;
``(3) penalize or otherwise reduce or limit the
reimbursement of a provider because such provider provided
fertility treatment to a qualified participant or beneficiary
in accordance with this section; or
``(4) on the ground prohibited under title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the
Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or
section 1557 of the Patient Protection and Affordable Care Act
(42 U.S.C. 18116), exclude any individual from coverage in
accordance with this section, or discriminate against any
individual with respect to such coverage.
``(f) Rule of Construction.--Nothing in this section shall be
construed to require a participant or beneficiary to undergo fertility
treatment.
``(g) Notice.--A group health plan and a health insurance issuer
offering group health insurance coverage shall provide notice to each
participant and beneficiary under such plan or coverage regarding the
coverage required by this section in accordance with regulations
promulgated by the Secretary. Such notice shall be in writing and
prominently positioned in any literature or correspondence made
available or distributed by the plan or issuer and shall be
transmitted--
``(1) not later than the earlier of--
``(A) in the first standard mailing made by the
plan or issuer to the participant or beneficiary
following the effective date of such regulations;
``(B) as part of any yearly informational packet
sent to the participant or beneficiary; or
``(C) January 1, 2026;
``(2) in the case of a participant or beneficiary not
enrolled in the plan or coverage on the date of transmission
under paragraph (1), upon initial enrollment of such
participant or beneficiary; and
``(3) on an annual basis after the transmission under
paragraph (1) or (2).
``(h) Level and Type of Reimbursements.--Nothing in this section
shall be construed to prevent a group health plan or a health insurance
issuer offering group health insurance coverage from negotiating the
level and type of reimbursement with a provider for care provided in
accordance with this section.''.
(B) Clerical amendment.--The table of contents in
section 1 of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1001 et seq.) is amended by
inserting after the item relating to section 725 the
following new item:
``Sec. 726. Standards relating to benefits for fertility treatment.''.
(3) IRC.--
(A) In general.--Subchapter B of chapter 100 of the
Internal Revenue Code of 1986 is amended by adding at
the end the following:
``SEC. 9826. STANDARDS RELATING TO BENEFITS FOR FERTILITY TREATMENT.
``(a) In General.--A group health plan shall provide coverage for
fertility treatment, if such plan provides coverage for obstetrical
services.
``(b) Definition.--In this section, the term `fertility treatment'
includes the following:
``(1) Preservation of human oocytes, sperm, or embryos for
later reproductive use.
``(2) Artificial insemination, including intravaginal
insemination, intracervical insemination, and intrauterine
insemination.
``(3) Assisted reproductive technology, including in vitro
fertilization and other treatments or procedures in which
reproductive genetic material, such as oocytes, sperm,
fertilized eggs, and embryos, are handled, when clinically
appropriate.
``(4) Genetic testing of embryos.
``(5) Medications prescribed or obtained over-the-counter,
as indicated for fertility.
``(6) Gamete donation.
``(7) Such other information, referrals, treatments,
procedures, medications, laboratory testing, technologies, and
services relating to fertility as the Secretary of Health and
Human Services determines appropriate.
``(c) Required Coverage.--A group health plan that includes
coverage for obstetrical services shall provide coverage for fertility
treatment determined appropriate by the health care provider,
regardless of whether the participant or beneficiary receiving such
treatment has been diagnosed with infertility as defined by the
American Society for Reproductive Medicine, if the treatment is
performed at, or prescribed by, a medical facility that is in
compliance with relevant standards set by an appropriate Federal
agency.
``(d) Limitation.--Cost-sharing, including deductibles and
coinsurance, or other limitations for fertility treatment may not be
imposed with respect to the services required to be covered under
subsection (c) to the extent that such cost-sharing exceeds the cost-
sharing applied to other medical services under the group health plan
or health insurance coverage or such other limitations are different
from limitations imposed with respect to such medical services, except
where such limitation is more favorable with respect to fertility
treatment. The Secretary shall promulgate interim final regulations to
carry out this subsection, notwithstanding the notice and comment
requirements of section 553 of title 5, United States Code.
``(e) Prohibitions.--A group health plan may not--
``(1) provide incentives (monetary or otherwise) to a
participant or beneficiary to encourage such participant or
beneficiary not to seek or obtain fertility treatment to which
such participant or beneficiary is entitled under this section
or to providers to induce such providers not to provide
medically appropriate fertility treatments to participants or
beneficiaries;
``(2) prohibit a provider from discussing with a
participant or beneficiary fertility treatment relating to this
section;
``(3) penalize or otherwise reduce or limit the
reimbursement of a provider because such provider provided
fertility treatment to a qualified participant or beneficiary
in accordance with this section; or
``(4) on the ground prohibited under title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the
Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or
section 1557 of the Patient Protection and Affordable Care Act
(42 U.S.C. 18116), exclude any individual from coverage in
accordance with this section, or discriminate against any
individual with respect to such coverage.
``(f) Rule of Construction.--Nothing in this section shall be
construed to require a participant or beneficiary to undergo fertility
treatment.
``(g) Notice.--A group health plan shall provide notice to each
participant and beneficiary under such plan regarding the coverage
required by this section in accordance with regulations promulgated by
the Secretary. Such notice shall be in writing and prominently
positioned in any literature or correspondence made available or
distributed by the plan and shall be transmitted--
``(1) not later than the earlier of--
``(A) in the first standard mailing made by the
plan to the participant or beneficiary following the
effective date of such regulations;
``(B) as part of any yearly informational packet
sent to the participant or beneficiary; or
``(C) January 1, 2026;
``(2) in the case of a participant or beneficiary not
enrolled in the plan on the date of transmission under
paragraph (1), upon initial enrollment of such participant or
beneficiary; and
``(3) on an annual basis after the transmission under
paragraph (1) or (2).
``(h) Level and Type of Reimbursements.--Nothing in this section
shall be construed to prevent a group health plan from negotiating the
level and type of reimbursement with a provider for care provided in
accordance with this section.''.
(B) Clerical amendment.--The table of sections for
subchapter B of chapter 100 of the Internal Revenue
Code of 1986 is amended by adding at the end the
following new item:
``Sec. 9826. Standards relating to benefits for fertility treatment.''.
(b) Conforming Amendments.--
(1) PHSA.--Section 2724(c) of the Public Health Service Act
(42 U.S.C. 300gg-23(c)) is amended by striking ``section 2704''
and inserting ``sections 2704 and 2799A-11''.
(2) ERISA.--Section 731(c) of the Employee Retirement
Income Security Act of 1974 (29 U.S.C. 1191(c)) is amended by
striking ``section 711'' and inserting ``sections 711 and
726''.
(c) Effective Dates.--
(1) In general.--The amendments made by subsections (a) and
(b) shall apply for plan years beginning on or after the date
that is 6 months after the date of enactment of this Act.
(2) Collective bargaining exception.--
(A) In general.--In the case of a group health plan
maintained pursuant to one or more collective
bargaining agreements between employee representatives
and one or more employers ratified before the date of
enactment of this Act, the amendments made by
subsection (a) shall not apply to plan years beginning
before the later of--
(i) the date on which the last collective
bargaining agreements relating to the plan
terminates (determined without regard to any
extension thereof agreed to after the date of
enactment of this Act), or
(ii) the date occurring 6 months after the
date of the enactment of this Act.
(B) Clarification.--For purposes of subparagraph
(A), any plan amendment made pursuant to a collective
bargaining agreement relating to the plan which amends
the plan solely to conform to any requirement added by
subsection (a) shall not be treated as a termination of
such collective bargaining agreement.
SEC. 303. REQUIREMENT FOR STATE MEDICAID PLANS TO PROVIDE MEDICAL
ASSISTANCE FOR FERTILITY TREATMENT.
(a) In General.--Section 1905 of the Social Security Act (42 U.S.C.
1396d) is amended--
(1) in subsection (a)(4)(C), by inserting ``(which shall
include fertility treatment provided in accordance with
subsection (kk))'' after ``family planning services and
supplies''; and
(2) by adding at the end the following new subsection:
``(kk) Requirements for Coverage of Fertility Treatment.--For
purposes of subsection (a)(4)(C), a State shall ensure that the medical
assistance provided under the State plan (or waiver of such plan) for
fertility treatment complies with the requirements of section 2799A-
11(b) of the Public Health Service Act in the same manner as such
requirements and limitations apply to health insurance coverage offered
by a group health plan or health insurance issuer.''.
(b) Technical Amendment.--Section 1903(a)(5) of the Social Security
Act (42 U.S.C. 1396b(a)(5)) is amended by inserting ``described in
section 1905(a)(4)(C)'' after ``family planning services and
supplies''.
(c) Effective Date.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by this section shall take effect on October 1,
2025.
(2) Delay permitted if state legislation required.--In the
case of a State plan approved under title XIX of the Social
Security Act which the Secretary of Health and Human Services
determines requires State legislation (other than legislation
appropriating funds) in order for the plan to meet the
additional requirement imposed by this section, the State plan
shall not be regarded as failing to comply with the
requirements of such title solely on the basis of the failure
of the plan to meet such additional requirement before the
first day of the first calendar quarter beginning after the
close of the first regular session of the State legislature
that ends after the 1-year period beginning with the date of
the enactment of this section. For purposes of the preceding
sentence, in the case of a State that has a 2-year legislative
session, each year of the session is deemed to be a separate
regular session of the State legislature.
SEC. 304. MEDICARE COVERAGE OF FERTILITY TREATMENT.
(a) Coverage.--Section 1861(s)(2) of the Social Security Act (42
U.S.C. 1395x(s)(2)) is amended--
(1) in subparagraph (JJ), by inserting ``and'' after the
semicolon at the end; and
(2) by adding at the end the following new subparagraph:
``(KK) fertility treatment (as defined in section 2799A-
11(b) of the Public Health Service Act);''.
(b) Payment and Waiver of Coinsurance.--Section 1833(a)(1) of the
Social Security Act (42 U.S.C. 1395l(a)(1)) is amended--
(1) by striking ``and'' before ``(HH)''; and
(2) by inserting before the semicolon at the end the
following: ``, and (II) with respect to fertility treatment (as
described in section 1861(s)(2)(KK)), the amount paid shall be
equal to 100 percent of the lesser of the actual charge for the
treatment or the amount determined under the payment basis
determined under section 1848''.
(c) Waiver of Application of Deductible.--The first sentence of
section 1833(b) of the Social Security Act (42 U.S.C. 1395l(b)) is
amended--
(1) by striking ``, and (13)'' and inserting ``(13)''; and
(2) by striking ``1861(n)..'' and inserting ``1861(n), and
(14) such deductible shall not apply with respect to fertility
treatment (as described in section 1861(s)(2)(KK)).''.
(d) Payment Under Physician Fee Schedule.--Section 1848(j)(3) of
the Social Security Act (42 U.S.C. 1395w-4(j)(3)) is amended by
inserting ``(2)(KK),'' after ``risk assessment),''.
(e) Conforming Amendment Regarding Coverage.--Section 1862(a)(1)(A)
of the Social Security Act (42 U.S.C. 1395y(a)(1)(A)) is amended--
(1) by striking ``or additional'' and inserting ``,
additional''; and
(2) by inserting ``, or fertility treatment (as described
in section 1861(s)(2)(KK))'' after ``1861(ddd)(1))''.
(f) Effective Date.--The amendments made by this section shall
apply to services furnished on or after January 1, 2025.
TITLE IV--FAMILY BUILDING FEHB FAIRNESS
SEC. 401. SHORT TITLE.
This title may be cited as the ``Family Building FEHB Fairness
Act''.
SEC. 402. FERTILITY TREATMENT BENEFITS.
(a) In General.--Section 8904 of title 5, United States Code, is
amended--
(1) in subsection (a)--
(A) in paragraph (1), by adding at the end the
following:
``(G) Fertility treatment benefits.''; and
(B) in paragraph (2)--
(i) by redesignating subparagraph (F) as
subparagraph (G); and
(ii) by inserting after subparagraph (E)
the following:
``(F) Fertility treatment benefits.''; and
(2) by adding at the end the following:
``(c) In this section, the term `fertility treatment' includes the
following:
``(1) Preservation of human oocytes, sperm, or embryos for
later reproductive use.
``(2) Artificial insemination, including intravaginal
insemination, intracervical insemination, and intrauterine
insemination.
``(3) Assisted reproductive technology, including in vitro
fertilization and other treatments or procedures in which
reproductive genetic material, such as oocytes, sperm,
fertilized eggs, and embryos, are handled, when clinically
appropriate.
``(4) Genetic testing of embryos.
``(5) Medications prescribed or obtained over-the-counter,
as indicated for fertility.
``(6) Gamete donation.
``(7) Such other information, referrals, treatments,
procedures, medications, laboratory services, technologies, and
services relating to fertility as the Director of the Office of
Personnel Management, in coordination with the Secretary of
Health and Human Services, determines appropriate.''.
(b) Effective Date.--The amendments made by this section shall take
effect on the date that is 1 year after the date of enactment of this
Act.
Calendar No. 413
118th CONGRESS
2d Session
S. 4445
_______________________________________________________________________
A BILL
To protect and expand nationwide access to fertility treatment,
including in vitro fertilization.
_______________________________________________________________________
June 4, 2024
Read the second time and placed on the calendar
Introduced in Senate
Introduced in the Senate. Read the first time. Placed on Senate Legislative Calendar under Read the First Time.
Read the second time. Placed on Senate Legislative Calendar under General Orders. Calendar No. 413.
Motion to proceed to consideration of measure made in Senate. (CR S3983)
Cloture motion on the motion to proceed to the measure presented in Senate. (CR S3983)
Motion to proceed to consideration of measure made in Senate. (consideration: CR S4067-4075)
Cloture on the motion to proceed to the measure not invoked in Senate by Yea-Nay Vote. 48 - 47. Record Vote Number: 197. (CR S4075)
Roll Call #197 (Senate)Motion by Senator Schumer to reconsider the vote by which cloture on the motion to proceed to the measure was not invoked (Record Vote No. 197) made in Senate.
Motion to proceed to measure considered in Senate. (CR S6075)
Motion to proceed to consideration of the motion to reconsider the vote by which cloture on the motion to proceed to S. 4445 was not invoked (Record Vote No. 197) agreed to in Senate by Voice Vote. (CR S6078)
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Motion by Senator Schumer to reconsider the vote by which cloture on the motion to proceed to S. 4445 was not invoked (Record Vote No. 197) agreed to in Senate by Voice Vote. (CR S6078)
Upon reconsideration, cloture on the motion to proceed to the measure not invoked in Senate by Yea-Nay Vote. 51 - 44. Record Vote Number: 242. (CR S6078)
Roll Call #242 (Senate)