The American health care system has long been broken, a sentiment I was reminded of when a dear friend shared her struggles securing health insurance coverage for in vitro fertilization in Colorado.
In vitro fertilization is a laboratory technique that combines a female’s eggs and a male’s sperm to create embryos. These embryos can later be transferred into the body in hopes of achieving a viable pregnancy. This process is the last resort for couples to overcome infertility or to pursue parenthood on one’s own.
Those who rely on IVF face a challenging path to childbearing. The process includes long periods of waiting, invasive procedures and heavy financial burdens. On average, one cycle of IVF can cost $15,000 to $20,000 with no guarantee of pregnancy. Additional costs can quickly accumulate, and most patients go through two or three rounds of IVF before success. The exorbitant expenses have led some to buy or sell fertility drugs on the illegal black market.
State Rep. Kerry Tipper understood the difficulty of the IVF process firsthand, having gone through the experience with her first child. The experience contributed to her passion for spearheading legislation of health care coverage for IVF via the Colorado Building Families Act in 2020.
The act would have mandated insurance to cover three rounds of IVF for all state-regulated insurance plans, amounting to roughly one-third of insurance holders. Tipper would later refer to the legislation as “one of the most important bills that I’ve run.”
And it was, until the Trump administration interfered.
Despite Tipper’s best efforts and the bill passing with bipartisan support, a subsequent ruling by the Trump administration’s Department of Human Health and Services deemed that the law could not be implemented in 2022 as planned. Effectively, Trump’s DHHS overruled a determination by Colorado’s Division of Insurance.
According to Vincent Plymell, the Colorado insurance division’s assistant commissioner, the division had determined the bill did not create a new insurance mandate. Instead, they found it offered an update to existing maternity coverage benefits set forth under Colorado law. The division’s determination was then submitted to DHHS as required, maintaining that Tipper’s bill did not constitute a new state mandate and was therefore not subject to state defrayal.
However, Trump’s DHHS disagreed with Colorado’s Division of Insurance, instead determining the bill did constitute a new mandate, particularly for individual and small group health coverage plans. This dispute paused the law and prompted Tipper to run a so-called “fix-it” bill in 2022.
The 2022 bill requiring IVF coverage also passed and will take effect in January 2023; however, it now only applies to state-regulated, large group health plans.
This is where things get more complicated.
Colorado is one of only a handful of states that defines large group health plans as 100 employees or more. This definition was last determined by Colorado’s DOI “back around 2014 or 2015,” according to Plymell. Most states define large group plans as larger than 50 employees. This means the 2022 “fix-it” bill, while the best option at the time, still only applies to a smaller number of people in Colorado than it would in most other states.
Additionally, many companies that otherwise fall into the large group plans are trending toward self-funded health care models. This removes them from the mandated pool to cover IVF, leaving even fewer policyholders to qualify — unless DHHS reverses its decision.
There is reason to believe a DHHS decision reversal is possible.
Michael Conway, Colorado’s DOI Commissioner, openly discussed in 2021 that he hoped President Joe Biden’s DHHS would reverse the decision. That has not happened yet, and the division was unable to offer a timeline of if or when it might. Plywell was clear, however, that “the division plans to continue talking to HHS about its determination.”
For now, this leaves Coloradans seeking IVF in mixed categories of coverage depending on their health insurance plan — and it’s not always easy to determine if one’s plan qualifies.
First, policyholders can look for “CO-DOI” on their insurance cards. This tells you if your plan is state-regulated. The new law will not apply to you if it does not appear on your card.
Next, policyholders must determine if their plan is designated as a large group plan. This is determined by contacting your employer’s human resource department or the insurance company directly. This law will not apply if your policy is not a large group plan based in Colorado.
This brings me back to my friend in Colorado.
One day, I know she will be an amazing mom. How do I know this? Because she, like others in her position, have the strength and fortitude to not only figure out how all of this absurdly complicated health care coverage works, but she is determined to find a way to make it possible despite learning she doesn’t qualify for full IVF coverage on either of her two insurance plans.
Not qualifying for full IVF coverage is forcing many tough decisions: Does she leave her current job to find a new one with a large group plan? How does she determine if a new company covers IVF without asking? If she can’t find coverage, how do she and her husband take on the hefty medical bills not covered by insurance?
My friend is not alone. These are decisions facing many Coloradans since there are no current federal protections for IVF coverage, and Biden’s DHHS hasn’t yet issued a reversal.
There are many takeaways:
First, large Colorado employers offering self-funded health coverage should opt to fully cover IVF as advised under the CBFA passed by the state legislature. Not only is this the right thing to do, but it is likely to be required at some point. This allows companies to demonstrate early their commitment to Colorado families.
Second, employees of large companies with self-funded health plans should lobby their employers to include full coverage of IVF, whether or not they need IVF. This reduces the burden for their colleagues who need IVF.
Third, federally elected Colorado officials — particularly U.S. Sens. Michael Bennet and John Hickenlooper — should pressure Biden’s DHHS to address the issues holding up the reversal. This would allow the mandate to take effect for all Coloradans. Federal officials should also seek to secure coverage for IVF in national policy.
Fourth, Colorado should expand large group coverage by dropping the current definition of 100 employees to 50. This would align with most other states and would immediately increase the number of Coloradans with mandated access to IVF by their insurers.
Fifth, state policymakers should consider if there is a way to permit Coloradans who were denied coverage for IVF after the CBFA was intended to take effect to seek reimbursement for incurred costs by their insurance plan, should a reversal of the Trump HHS decision be granted.
Sixth, state officials must work to ensure that anyone interacting with the public regarding IVF laws is aware of the status of the CBFA.
Starting a family is one of the most important and intimate decisions we can ever make. Not covering IVF in full further perpetuates systemic issues, leaving only those who can afford to cover tens of thousands of dollars able to have children. Colorado has already set in motion support for full IVF coverage. Now it’s time to secure it.
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