CALL TO ACTION! Support Pending Fertility Preservation Legislation in New York

by Joyce Reinecke, JD,Executive Director, Alliance for Fertility Preservation 

The primary barrier for cancer patients seeking to preserve their fertility is cost.

Sperm banking, embryo freezing and egg freezing cost thousands of dollars. Because

New York State Capitol Building, Albany

New York State Capitol Building, Albany

these services are rarely covered by insurance, patients are typically left paying out of pocket in order to access these services. For many, especially while in the midst of a life-threatening health emergency, these costs are prohibitive, and future fertility is left to chance.

Legislation, however, is currently being considered in New York State that could change this situation. SB7219, authored by State Senator Diane Savino, would alter the current infertility mandate in New York to include coverage for standard fertility preservation services needed by those facing possible iatrogenic (medically-induced) infertility due to treatments such as chemotherapy, radiation and surgery.

The Alliance for Fertility Preservation applauds RESOLVE for its leadership on this legislation. Along with RESOLVE, we have joined forces with a coalition of groups to support this legislation.

We are asking that if you are a resident of New York, please contact your state representative to let them know how important this is for you! By bringing together voices of patients, professionals and families we can help make this change.

How You Can Get Involved:

If you are a cancer patient, survivor or family member who has been touched by this issue, please submit your email here:

Coalition to Help Families Struggling with Infertility – Link for Individuals

If you are a healthcare provider serving patients in New York who would be positively impacted by this coverage, please submit your email here:

Coalition to Help Families Struggling with Infertility – Link for Family Building Professionals

If your institution or nonprofit organization is interested in joining the Coalition to Help Families Struggling with Infertility, email advocacy@helpfamilieswithinfertility.net.

Time is of the essence! All communications should be submitted by June 2nd if possible; the last day of the NY legislative session is June 16th.

References:

  1. To read the entire Bill: http://legislation.nysenate.gov/pdf/bills/2015/S7219
  2. To learn more about the Bill or the Coalition: Coalition to Help Families Struggling with Infertility Website

This blog was originally published on May 18, 2016, on The Alliance Blog

Cancer Survivor Prevails in Disputed Embryos Case

Recently, the Supreme Court of the United States refused to take up a widely-publicized Triage Cancer Blog Supreme Courtcase, Szafranski v. Dunston, involving disputed embryos.

Karla Dunston, a doctor, was diagnosed with non-Hodgkin’s lymphoma in 2009. Because her treatment presented the risk of infertility, Ms. Dunston took steps to preserve her fertility. She asked her boyfriend, Jacob Szafranski, to help her by allowing her to use his sperm to create embryos before she had to start her cancer treatment. He agreed, and they went to a fertility clinic where she underwent a cycle of IVF and successfully froze three embryos.

Ms. Dunston completed her cancer treatment and went into remission. However, she was left infertile, and the embryos that were frozen are now her only option for having biological children. Unfortunately, in 2010, the couple broke up, and in 2011, Mr. Szafranski sued to prevent Ms. Dunston from using the embryos to have a child.

This case presented complicated issues about embryo disposition that state of Illinois had not addressed before, and it highlights subjects that cancer patients need to think through when considering fertility preservation. It isn’t clear how courts will decide if one person can use their embryos to become a biological parent if the other person involved objects. Should the embryos be destroyed? Kept frozen until agreement is reached? Given to whomever the court believes has more at stake?

Before Szafranski, cases in other states had been decided in different ways, but no clear approach had been established. Some states looked at whether there had been a contract formed about the disposition of the embryos when they were created, and strictly upheld any such agreement between the parties, even if circumstances and wishes had changed. Some applied a “balancing” test where the court weighed the interests of each person to decide the best outcome, even if there had been a contract. One court created a standard called “contemporaneous mutual consent,” which basically said that even if the couple agreed when they created the embryos, they had to also be in agreement at the time that the embryos were to be used or destroyed. This approach essentially allows either party to change their mind and have “veto” power over the other.

This case worked its way through the Illinois courts, and ultimately, the Illinois Court of Appeals adopted a hybrid approach. It said that if the facts showed that a contract – oral or written – existed, this should be controlling. But absent a valid contract, a trial court could consider the individual facts of the case and apply the balancing test. The trial court had found that when Ms. Dunston asked, and Mr. Szafranski agreed to create the embryos, a valid oral contract had been formed. That discussion included an understanding that Ms. Dunston would be able to use the embryos after cancer treatment in order to try to get pregnant, since that was the entire purpose. The court rejected Mr. Szafranski’s argument that an informed consent document from the fertility clinic (which stated that the embryos could not be used or disposed of unless both parties were in agreement) changed their verbal agreement.

The Supreme Court’s unwillingness to review this case means Mr. Szafranski cannot block Ms. Dunston from using the embryos to try to become pregnant. But it also leaves the law around disputed embryos unsettled, creating uncertainty about what types of agreements either between couples or between couples and their fertility providers will be recognized as binding, or whether compelling interests of one party will tip a court’s ruling in their favor.

Interestingly, this case is only the second of twelve disputed embryo cases in which the person seeking to have a biological child prevailed over the person seeking to avoid parenthood. In both cases, for the infertile female cancer survivors who won, the disputed embryos represented their only possible chance at biological motherhood. In the words of the Illinois Court of Appeals, “Karla’s interest in using the pre-embryos is paramount given her inability to have a biological child by any other means.

 

Joyce Reinecke, JD, is the Executive Director of the Alliance for Fertility Preservation, a 501c3 charitable organization whose exclusive focus is fertility preservation for cancer patients. Joyce is also a cancer survivor who became a parent after undergoing fertility preservation. A version of this blog originally appeared here.

Calling All Advocates: Insurance for Fertility Preservation

By Alice Crisi

For years, California advocates have struggled to secure fertility preservation insurance coverage for cancer patients. A 2013 bill even made its way to the Governor’s desk only to be vetoed because of the one penny per member per month it would cost to implement this important insurance reform.

California only requires insurers OFFER infertility coverage as a potential benefit, but it does not include In Vitro Fertilization (IVF), nor does this mandate require employers provide infertility coverage to their employees. If you read the aforementioned sentence and thought “That sounds pointless,” then you would have the same thought as most fertility advocates.

The mandate itself set up a loophole in the system for insurers to tell enrollees diagnosed with cancer, “Infertility services are not a covered benefit and fertility preservation is an infertility service.” The bottom line is fertility preservation historically was lumped in with traditional infertility services rather than being considered a part of cancer care.

And the story is still shared over and over and over again. “I checked on your insurance and infertility/fertility preservation isn’t a covered benefit.” Some physicians preemptively tell their patients, “Insurance doesn’t cover it,” further perpetuating the idea of lack of coverage.

But that isn’t 100% true.

We now know some companies cover fertility preservation for all their employees in California. We also know from informal surveys and patient feedback that some insurers cover fertility preservation as part of the standard of care for cancer.

But, due to mistaken beliefs about coverage, many patients were not asking their Triage Cancer Blog - Independent Medical Review Fertilityphysicians for help with submission of prior-authorizations for coverage of fertility preservation treatment, or not appealing when the prior-authorization is denied. Records show only one patient has ever utilized California’s Independent Medical Review (IMR) process for fertility preservation. That patient, asked the California Department of Managed HealthCare (DMHC), the agency that oversees 25 million plans in California, to overturn a decision to deny her embryo freezing procedure before breast cancer treatment.

And she won.

She won.

You got that, right?

She Won.

The DMHC agreed with her, her physicians, the American Society of Reproductive Medicine, the American Medical Association, and the American Society of Clinical Society, whom all state fertility preservation is standard treatment when diagnosed with cancer during reproductive years. She, as a newly diagnosed cancer patient, was granted the right to have her insurance cover her embryo freezing procedure prior to cancer treatment.

This is a clear path forward, underutilized by patients, advocates and physician offices. Armed with this information, patients can move forward and challenge the old notions.

In fact, 60% of individuals who use the IMR process have their insurance company’s denial overturned. Once a pattern ensues, the DMHC will regulate a formal change.

Our joint goal is to work with the DMHC to write a letter informing insurance companies they need to cover fertility preservation for patients diagnosed with cancer. But, we need more complaints filed in the system before that happens. We need every patient to ask their insurer for coverage and then file a request for an IMR, if their insurance company denies the treatment.

Here’s how it works:

  1. Your reproductive specialist’s billing manager will request a prior-authorization from your insurance company to cover your fertility preservation procedure. (Your insurance company may say yes!)
  2. If your insurance company denies the prior-authorization, you then file an expedited appeal through your insurance carrier (usually an online form through your own insurance company). Request an expedited review on account of your cancer diagnosis.
  3. If your insurance company upholds their original denial, you may then request an expedited IMR online through the DMHC (even if your plan advises you there are multiple levels of appeals). http://www.dmhc.ca.gov/FileaComplaint/IndependentMedicalReviewComplaintForm.aspx#.VspUlfkrKc0
  4. DMHC is required by federal law to address your request for fertility preservation insurance coverage within 30 days, but with expedited cases to be addressed within one week.

To better be able to help patients, oncologists and reproductive professionals (along with their billing personnel) may request an educational webinar via email acrisci@cryobank.com.

A great website to help you navigate the system is http://mypatientrights.org.

Check with www.OncofertilityUniversity.org for more information.

As the de-identified IMR cases will be publicly available on the DMHC website, eventually we will be able to see the cases and assess the outcome. But, if you’re comfortable, we would really benefit from you contacting us at info@fertileaction.org to let us know how the process worked for you. It would be helpful to know if you were able to get coverage right away, through the insurer’s appeals process or the IMR process. The more people use the system, the clearer it will be to regulators there is an issue they can and should address.

We’re so close to permanently changing this story in California, let’s solve this problem this year!

Family Planning After Cancer: Surrogacy

Cancer treatment can affect people in many different ways, but one we often don’t think about is the impact on an individual’s ability to have children.

People who have received cancer treatment and still want to have a family, but did not have the ability to preserve their fertility before treatment, may be unsure about their options.

One option for building a family is surrogacy.

Surrogacy is when a woman (called a surrogate mother) becomes pregnant and gives birth to a baby in order to give that baby to someone who cannot have their own children.

Triage Cancer recently talked with Baby Bump Journeys, about the valuable role that Triage Cancer Baby Bump Journeyssurrogacy services can play in helping people achieve their dreams of building a family, even in the wake of a cancer diagnosis.

In 2012, The Huffington Post, wrote about the increased use of surrogacy services and explained the step-by-step process in this article.

The process of finding the right person to carry your child can seem like an insurmountable challenge, but surrogacy services can help you not only find a surrogate, but navigate the detailed process of ensuring you have the right legal protections in place.

It is important to understand that your surrogacy options may vary based on the laws in your state. Click here for information about gestational surrogacy laws across the United States.

Surrogacy services can not only connect you with a surrogate, but also with doctors and lawyers who can take care of your family’s needs during the surrogacy process.

For more information about this and other options for family planning after cancer, join Triage Cancer for our FREE webinar:

From Cancer Survivorship to Diaper Changes: Creating a Family After Cancer
May 18, 2016
12pm Pacific/3pm Eastern
Register here