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What the Affordable Care Act Says about Fertility and Pregnancy

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March 5, 2013

The Patient Protection and Affordable Care Act, better known as the Affordable Care Act (ACA) was first passed into law on March 23, 2010 but was upheld by the Supreme Court in June 2012 as the legislation’s constitutionality came into question.

A review published March 1, 2013 in the journal of the American Society for Reproductive Medicine, Fertility and Sterility by Kenan Omurtag, M.D. and G. David Adamson, M.D., examines what the proposed guidelines mean to the fertility patient and the types of changes to be expected in the standard of maternity and infertility care.

Maternity and Infertility Services under the Affordable Care Act

Perhaps the most noteworthy section of the law guarantees women the right to maternity care and gynecologic services without fear of being denied coverage based on pre-existing conditions like pregnancy, prior caesarian section, and perhaps infertility.

The Department of Health and Human Services and Institute of Medicine (IOM) were charged with defining a list of Essential Health Benefits (EHBs) that each state-run health plan will be required to include in their benefits package. Among those (most relevant to fertility, pregnancy, and childbirth), include:

  • Ambulatory patient services
  • Hospitalization
  • Maternity and newborn care
  • Prescription drugs
  • Laboratory services
  • Preventive and wellness services and chronic disease management
  • Pediatric services, including oral and vision care

Infertility care, considered a specific medical treatment, was not included in this list. However, the ACA does include some guidelines that may change the way fertility patients are able to afford fertility treatment through savings and tax deductions. Currently, the Internal Revenue Service tax code considers “fertility enhancements”, in vitro fertilization (IVF), storage of eggs and sperm, fallopian tube or vasectomy repair surgeries to be non-reimburseable medical expenses. The tax code only allows deductions for fertility treatments more than 7.5% of a patient’s adjusted gross income. That percentage will be raised to 10% of a patient’s adjusted gross income in 2013, reducing the deduction a couple can claim on their taxes for treatment like IVF which averages $12,400. Patients using Flexible Spending Accounts (FSA) will be allowed to set aside pre-taxed dollars toward fertility treatment with a formal cap of $2,500 starting in 2013.

Third Party Reproduction under the Affordable Care Act

The adoption tax credit, first approved in 1997, will become a refundable tax credit as per the ACA rather than a per-child credit of $13,360. This credit was previously rolled over into the next tax year to offset any taxes owed by the couple. The extension of this credit is to be voted upon under separate legislation.

Traditionally, couples using a gestational carrier to carry and birth their biological child were expected to cover any associated medical costs, medications, and the in vitro fertilization (IVF) cycle with which the carrier became pregnant with the couples’ egg and sperm. The ACA will likely alleviate some of the financial burden on couples using a gestational carrier given that maternity services will be covered.

State Mandates for Infertility Insurance Coverage

The ACA does not change the current coverage provided by state mandates for infertility insurance coverage. However, in 2014, if a state chooses to mandate coverage for services not included in the EHBs, the state will be responsible for the difference in cost. Being that federal laws can override state laws, there is a loophole for employers to reduce the amount of infertility coverage they provide. There are still a lot of unknowns around the future of state mandates for infertility insurance coverage.

While some of the tax credits proposed in the ACA may inhibit couples from pursuing fertility treatment or adoption, the increased benefits for maternity care and elimination of pre-existing conditions prove beneficial for those trying to build their families.

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