California SB 729 was signed into law by Governor Newsom on September 29, 2024. The law mandates large group health insurance plans to cover fertility treatments.
Coverage Mandate Summary
Large Group Policies: The bill mandates that large group insurance policies (covering 100+ employees) provide coverage for the diagnosis and treatment of infertility and fertility services, including in vitro fertilization (IVF).
Small Group Policies: The bill does not mandate small group policies to provide infertility coverage. However, the bill does require small group contracts to offer infertility coverage. This means that carriers must offer the coverage as an option on small group health insurance policies. Employers must be able to elect coverage for infertility services but are not required to provide it under their policies.
Self-Insured Employers: This bill does not apply. As with all self-funded plans, ERISA preempts state laws that relate to employee benefit plans.
Religious Employers: The bill exempts religious employers from these requirements.
What fertility services are mandated?
Required fertility coverage includes a maximum of three completed oocyte retrievals with unlimited embryo transfers in accordance with the guidelines of the American Society for Reproductive Medicine (ASRM), using single embryo transfer when recommended and medically appropriate.
Impetus of the Law
The law aims to make IVF more accessible, particularly for those who face financial barriers or belong to the LGBTQ+ community. One significant provision removes the requirement that patients must attempt natural conception for 12 months prior to becoming eligible for fertility treatments, benefiting same-sex couples and others who face unique challenges in family-building.
Discrimination Prohibited
The law is very clear that discrimination of any sort is prohibited. Specifically, coverage for the treatment of infertility and fertility services must be provided without discrimination based on:
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Age
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Ancestry
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Color
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Disability
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Domestic partner status
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Gender
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Gender expression
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Gender identity
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Genetic information
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Marital status
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National origin
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Race
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Religion
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Sex
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Sexual orientation
Effective Date
Contracts issued, amended, or renewed on or after July 1, 2025, must comply with the new mandate. For employers with calendar year renewal cycles, that means January 1, 2026.
What the Future Holds
Large employers subject to this law should expect standardized infertility coverage to be included in fully insured plans. A premium increase can be expected. However, at this early stage, it is premature to project what the premium impact might be.
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Coverage Details (For Those Who Want the Nitty-Gritty)
Definition of Infertility
The law defines infertility as a condition or status characterized by any of the following:
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A licensed physician’s findings, based on a patient’s medical, sexual, and reproductive history, age, physical findings, diagnostic testing, or any combination of those factors. This definition shall not prevent testing and diagnosis of infertility before the 12-month or 6-month period to establish infertility in paragraph (3).
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A person’s inability to reproduce either as an individual or with their partner without medical intervention.
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The failure to establish a pregnancy or to carry a pregnancy to live birth after regular, unprotected sexual intercourse. For purposes of this section, “regular, unprotected sexual intercourse” means no more than 12 months of unprotected sexual intercourse for a person under 35 years of age or no more than 6 months of unprotected sexual intercourse for a person 35 years of age or older. Pregnancy resulting in miscarriage does not restart the 12-month or 6-month period to qualify as having infertility.
Prohibitions in the Law
The law also outlines specific exclusions that are prohibited under the law. The headings below are intended to quickly capture the high level intent of each paragraph. The wording that follows is the actual text of the law for reference.
The policy may not include any of the following:
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Exclusions for Fertility Rx: Any exclusion, limitation, or other restriction on coverage of fertility medications that are different from those imposed on other prescription medications.
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Exclusions for Third-Party Involvement: Any exclusion or denial of coverage of any fertility services based on a covered individual’s participation in fertility services provided by or to a third party. For purposes of this section, “third party” includes an oocyte, sperm, or embryo donor, gestational carrier, or surrogate that enables an intended recipient to become a parent.
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Different Cost Sharing for Fertility: Any deductible, copayment, coinsurance, benefit maximum, waiting period, or any other limitation on coverage for the diagnosis and treatment of infertility, except as provided in subdivision (a) that are different from those imposed upon benefits for services not related to infertility.
