Viewpoints from Adam Okun

Each decade there seems to be another benefit provision that goes through a major overhaul. Timothy’s Law, in New York State, and the federal Mental Health Parity and Addiction Equity Act (MHPAEA) ushered in dramatic changes to out-of-network mental health coverage in the 2000s. Preventive care and no-cost contraception coverage was a defining feature of the Affordable Care Act (ACA). And soon thereafter arrived a variety of state mandates around autism and transgender benefits. One provision that is now seemingly going through its coming of age is infertility.

It’s been several years since a variety of states introduced mandatory infertility coverage.

But that coverage had very specific definitions as to who is deemed “infertile” and what measures were required to be covered by medical programs. The language typically stipulated that infertility coverage was specifically relevant for heterosexual couples who failed to conceive through the act of normal cohabitation. And in many states, it did not require the plan to provide benefits beyond artificial insemination and prescription drug protection for ovulation-stimulating medications such as Clomid. Of course, for many people – those in single, non-heterosexual, or heterosexual lifestyles requiring more invasive infertility procedures such as in-vitro fertilization (IVF) – the laws had not gone far enough. Additionally, absent was much language around egg and sperm freezing.

Sure enough, New York State expanded its infertility mandate last year to include three cycles of IVF and egg and sperm freezing for medically necessary purposes. Additionally, Governor Cuomo recently instructed the Department of Financial Services (DFS) to expand infertility coverage protections to people regardless of their sexual orientation or gender identity. Likely, this will soon be a mandated feature in New York State benefit plans. Though state mandates do not require self-funded employers to mirror these coverage levels, they typically do raise the bar amongst all employers operating in the state.

Many clients are already getting ahead of these actions;

seeking ways to offer egg and sperm cryopreservation, adoption services, surrogacy benefits, expanded advanced reproductive technology benefits (IVF, zygote intrafallopian transfer [ZIFT], gamete intrafallopian transfer [GIFT]) and preimplantation genetic diagnosis coverage for same- and opposite-sex couples. In the process, one of the hurdles employers are confronting is the legality of offering non-medically necessary benefits through a tax-exempt Employee Retirement Income Security Act (ERISA) plan; forcing some of these benefits to be offered outside the plan on a taxable basis.

Regardless, these are some of the most frequent questions we have been fielding as of late – particularly for employers with very generous benefits programs in the legal, finance and technology industries.

We expect to see many employers broadly enhancing coverage for these benefits heading into 2022.


EPIC offers these opinions for general information only. EPIC does not intend this material to be, nor may any person receiving this information construe or rely on this material as, tax or legal advice. The matters addressed in this article and any related discussions or correspondence should be reviewed and discussed with legal counsel prior to acting or relying on these materials.


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Adam Okun

Northeast Region Employee Benefits Practice Leader – New York, NY