A recently filed lawsuit shows how New York has become a major battlefield in the emotional debate over whether health insurers should cover infertility treatments.

New Yorker Cheryl Macro filed the lawsuit in the state's Supreme Court on June 25, 2001, against Independent Health for its decision to halt payment for its members' infertility treatments. Macro launched the action when she discovered the Buffalo-based health insurer will end her and 1,200 other plan members' infertility coverage beginning this month, as employer groups come up for renewal of their health insurance policies. The lawsuit, which seeks class action status, charges that Independent Health's decision violates New York health insurance law.

According to Independent Health, the New York Department of Insurance (DOI) "approved" the HMO's change in infertility coverage. The DOI says it did indeed OK the new policy form that Independent Health will issue to its members. That form does not provide coverage for treatment of infertility.

Meanwhile, however, New Yorkers are struggling to make sense out of the state's health insurance mandates as they apply to infertility coverage.

Misunderstood mandate

The confusion begins with a New York state health insurance mandate that dictates "insurers shall not exclude coverage" for treatment of "correctable medical conditions." Macro and her supporters say "correctable medical conditions" include infertility.

Insurers, however, charge that infertility is often not a "correctable" condition and that the success rate is low compared with other medical treatments. Thus, they say they do not have to cover it.

According to Kate Doyle, a spokesperson for Resolve, The National Infertility Association, "infertility is a medical condition affecting both men and women, with proven and effective treatment options now available." Resolve recommends that insurers and employers develop insurance coverage of treatment plans that include diagnosis as well as a wide range of available drug therapies and medical procedures, such as in vitro fertilization.

According to Tom Zyra, the New York DOI's co-chief of the health bureau, the mandate has been an unintentional "source of confusion." Zyra says the law was worded to include coverage of surgery that corrects infertility, but was never meant to be construed as a mandate that insurers cover "assisted reproductive technology," such as artificial insemination, drug therapy, or in vitro fertilization. "Surgery is already a covered benefit in most plans, therefore we didn't want insurers to exclude surgery that would correct infertility."

Stuck in committee

Adding to the confusion is the turmoil surrounding recent state legislation that would officially and clearly mandate coverage for infertility treatment. The New York State Senate passed such a bill (S 1265) on Jan. 23, 2001. However, the bill is now stuck in the State Assembly's insurance committee, where similar legislation has died a slow death for the past two years. Supporters of the bill are hoping the third time will be the charm for both houses of the State Legislature to reach an agreement on the terms of the bill, but it's unclear whether they will be able to reach a compromise before the legislative sessions end.

Reaching a consensus has been particularly difficult when both supporters and critics of the bill present conflicting statistics. Independent Health says it spent more than $6 million in 2000 on infertility treatments for 1,200 of its 400,000 members. The HMO claims that costly treatments for a small percentage of its members unfairly increases premiums for the entire membership.

On the other hand, Doyle says in many states that currently offer infertility coverage, the costs of providing coverage have actually been low. "In Massachusetts, the cost of coverage totals only $3 per member per month," says Doyle. "That mandate has been successfully in place since 1990."