5. a. No certificate of authority to establish and operate a health maintenance organization in this State shall be issued or continued on or after the effective date of this act unless the health maintenance organization provides health care services, to groups of more than 50 enrollees, for medically necessary expenses incurred in the diagnosis and treatment of infertility as provided pursuant to this section. A health maintenance organization shall provide enrollee coverage which includes, but is not limited to, the following services related to infertility: diagnosis and diagnostic tests; medications; surgery; in vitro fertilization; embryo transfer; artificial insemination; gamete intra fallopian transfer; zygote intra fallopian transfer; intracytoplasmic sperm injection; and four completed egg retrievals per lifetime of the enrollee. The health maintenance organization may provide that health care services for in vitro fertilization, gamete intra fallopian transfer and zygote intra fallopian transfer shall be limited to a covered person who: a. has used all reasonable, less expensive and medically appropriate treatments and is still unable to become pregnant or carry a pregnancy; b. has not reached the limit of four completed egg retrievals; and c. is 45 years of age or younger.

For purposes of this section, “infertility” means a disease or condition that results in the abnormal function of the reproductive system, as determined pursuant to American Society for Reproductive Medicine practice guidelines by a physician who is Board Certified or Board Eligible in Reproductive Endocrinology and Infertility or in Obstetrics and Gynecology or that the patient has met one of the following conditions:

(1) A male is unable to impregnate a female;

(2) A female with a male partner and under 35 years of age is unable to conceive after 12 months of unprotected sexual intercourse;

(3) A female with a male partner and 35 years of age and over is unable to conceive after six months of unprotected sexual intercourse;

(4) A female without a male partner and under 35 years of age who is unable to conceive after 12 failed attempts of intrauterine insemination under medical supervision;

(5) A female without a male partner and over 35 years of age who is unable to conceive after six failed attempts of intrauterine insemination under medical supervision;

(6) Partners are unable to conceive as a result of involuntary medical sterility;

(7) A person is unable to carry a pregnancy to live birth; or

(8) A previous determination of infertility pursuant to this section.

The health care services shall be provided to the same extent as for other pregnancy-related procedures under the contract, except that the services provided for in this section shall be performed at facilities that conform to standards established by the American Society for Reproductive Medicine or the American College of Obstetricians and Gynecologists. The same copayments, deductibles and benefit limits shall apply to the diagnosis and treatment of infertility pursuant to this section as those applied to other medical or surgical health care services under the contract. Infertility resulting from voluntary sterilization procedures shall be excluded under the contract for the coverage required by this section.

b. A religious employer may request, and a health maintenance organization shall grant, an exclusion under the contract for the health care services required by this section for in vitro fertilization, embryo transfer, artificial insemination, zygote intra fallopian transfer and intracytoplasmic sperm injection, if the required health care services are contrary to the religious employer’s bona fide religious tenets. The health maintenance organization that issues a contract containing such an exclusion shall provide written notice thereof to each prospective enrollee or enrollee, which shall appear in not less than ten point type, in the contract, application and sales brochure. For the purposes of this subsection, “religious employer” means an employer that is a church, convention or association of churches or any group or entity that is operated, supervised or controlled by or in connection with a church or a convention or association of churches as defined in 26 U.S.C. § 3121(w)(3)(A), and that qualifies as a tax-exempt organization under 26 U.S.C. § 501(c)(3).

c. The provisions of this section shall apply to those contracts for health care services by health maintenance organizations under which the right to change the schedule of charges for enrollee coverage is reserved.

d. The provisions of this section shall not apply to a contract for health care services by a health maintenance organization which, pursuant to a contract between the health maintenance organization and the Department of Human Services, provides benefits to persons who are eligible for medical assistance under P.L.1968, c.413 (C. 30:4D-1 et seq.), the NJ FamilyCare Program established pursuant to P.L.2005, c.156 (C. 30:4J-8 et al.), or any other program administered by the Division of Medical Assistance and Health Services in the Department of Human Services.

L.2001, c.236, s.5; amended 2017, c.48, s.5.