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Pallone Calls on HHS to Review Discrimination against LBGT Americans seeking Fertility Treatments

October 24, 2016
Press Release

WASHINGTON, DC – Congressman Frank Pallone, Jr. (NJ-06) sent a letter to the U.S. Department of Health & Human Services Secretary Sylvia Burwell addressing discriminatory state policies against the Lesbian, Gay, Bisexual and Transgender (LGBT) community regarding fertility coverage. The letter focuses on Erin Krupa et al. v. Richard J Badolato, a case in which two same-sex couples filed suit against the New Jersey Insurance Commissioner, claiming that the New Jersey law mandating coverage for fertility treatments violates their civil rights.

“It is important to note that the insurer’s actions were in line with New Jersey law regarding coverage of fertility treatments,” wrote Pallone. “Current law requires insurers to cover such treatments; however a medical diagnosis of infertility alone is insufficient. Rather, the state also requires women to demonstrate their infertility through ‘two years of unprotected sex with a man.”

There are 15 states that mandate the coverage of fertility treatments and of these, 13 exhibit discrimination toward women in same-sex relationships. Pallone argues current New Jersey Law could be in conflict with the nondiscrimination provisions in the Affordable Care Act.

“Now that we recognize the right of all Americans to marry, it is a logical next step to recognize the right to start a family,” said Pallone. “Any state policy or insurance practice that fails to recognize these rights as universal fails to live up the principles articulated in the U.S. Constitution.”

Congressman Pallone has been a long-time ally and advocate for the LGBT community. In recent years, he has fought for an end to LGBT discrimination, including calling for an executive order from President Obama to end discrimination in the workplace and supporting legislation to expand the Civil Rights Act of 1964 to include prohibiting discrimination based on sexual orientation and gender identity.

 

The text of letter can be found here:

 

Sylvia Matthews Burwell

Secretary 

U.S. Department of Health & Human Services

200 Independence Avenue, S.W.

Washington, D.C. 20201

 

Dear Secretary Burwell:

I write to direct your attention to discrimination against the Lesbian, Gay, Bisexual and Transgender (LGBT) community in state policies regarding fertility coverage.

In Erin Krupa et al. v. Richard J. Badolato, two same-sex couples filed suit against the Commissioner of the New Jersey Department of Banking and Insurance, claiming the violation of their civil rights in their insurer’s denial of coverage for fertility treatments, and the state’s denial of equal protection under New Jersey law. The couples want to start biological families, but their insurer, Horizon Blue Cross Blue Shield of New Jersey, denied coverage for fertility treatments. Horizon denied this coverage even though the lead plaintiff suffered from Stage 3 endometriosis, which rendered her infertile.

It is important to note that the insurer’s actions were in line with New Jersey law regarding coverage of fertility treatments. Current law requires insurers to cover such treatments; however a medical diagnosis of infertility alone is insufficient. Rather, the state also requires women to demonstrate their infertility through “two years of unprotected sex with a man.”

These concerns are not unique to New Jersey. Currently, health plan policies in regard to the coverage of fertility treatments vary widely, with some covering multiple in vitro fertilization attempts while others fail to even cover the diagnosis of infertility. Policyholders of most plans must meet a set of criteria to be considered for coverage—some are required to be married, others are required to obtain a medical diagnosis of infertility, and others, more invasively, are required to demonstrate a documented history of heterosexual sexual contact.

Including New Jersey, a total of 15 states mandate the coverage of fertility treatments and of these, 13 are inherently discriminatory toward women in same-sex relationships. Furthermore, a majority of states have similarly-restrictive policies, denying women across the country the right to start a biological family—a right enjoyed by their peers in heterosexual partnerships.

I am proud that our nation has come a long way towards recognizing the rights of LGBT Americans in recent years. And though many guidelines regarding insurance coverage are within the purview of states, the Affordable Care Act (ACA) set certain federal standards intended to allow all Americans to access coverage. I am very concerned that this New Jersey law is in conflict with the spirit, if not the letter, of the nondiscrimination provisions in the ACA.  It was Congress’ intent in the ACA to eliminate barriers to coverage, and through Section 1557, the intent to extend this effort to discrimination should be clear.

In recent years, the Obama Administration has taken concrete steps to address discrimination against the LGBT community, including joint guidance issued by the Departments of Justice and Education on transgender rights and the Department of Health and Human Services’ (HHS) implementation of Section 1557 of the ACA.

However, these actions are largely a reflection of society’s changing attitudes toward the LGBT community. In some respects, decades of LGBT advocacy culminated last year in the Supreme Court’s decision in another case, Obergefell v. Hodges. In that case, the Court held that, despite states’ differing policies, all individuals, regardless of their sexual orientation, enjoy the fundamental right to marry, safeguarded by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Erin Krupa et al. v. Richard J. Badolato is simply an extension of the fight embodied in Obergefell. Now that we recognize the right of all Americans to marry, it is a logical next step to recognize the right to start a family. Any state policy or insurance practice that fails to recognize these rights as universal, fails to live up to the principles articulated in the Obergefell decision and the U.S. Constitution.

I believe that state policies in regard to insurance coverage should not discriminate in any way against any class of individual. The issues raised in Erin Krupa et al. v. Richard J. Badolato are matters of civil rights. There is no right as universal as the right to start a family, and that right cannot be impacted by what state you live in.

As the federal agency charged with overseeing health insurance and coverage standards, I believe your leadership on this issue could be helpful in eliminating the kind of ambiguity in state coverage standards that results in discrimination. I urge you to continue the Obama Administration’s strong record on civil rights and efforts to create a more inclusive health system.  

 

Sincerely,

 

FRANK PALLONE, JR.

Member of Congress



[1] https://www.ncsl.org/research/health/insurance-coverage-for-infertility-laws.aspx