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Briefing

SB 729 FAQs: Understanding California's Infertility Coverage Requirements

In January, we published the briefing, New Infertility Coverage Mandate for California Health Plans, that summarized SB 729 (Chapter 930, Statutes of 2024), which was signed into law by Governor Newsom in 2024. Since the publication of that briefing, we’ve received a number of questions regarding the new law. Answers to the most frequently asked questions are set forth below.

Q1: I read that the Governor delayed the effective date of the law to 2026. Is that true?

Answer: No. The Governor alone cannot change the effective date of a statute. The California legislature would have to pass legislation to change the effective date. Unless and until that happens, the bill’s July 1, 2025 effective date remains unchanged.

It is true that when Governor Newsom signed SB 729 into law last September, he issued a signing letter, which stated, in part,

There is a better way to strengthen IVF coverage across California's health care delivery system, and the state has already begun this work. In January of this year, we started the process of updating the state's "benchmark" plan, which will set a new standard for commercial insurance health coverage. The services under evaluation specifically include infertility treatment and IVF. The state's proposed benefit design will be released later this year and adopted by the Legislature by May 2025.

I expect that IVF coverage will be included in the benchmark plan proposal adopted next spring, but may differ from the one in this bill. As a part of that process, I request that the Legislature change the effective date of this measure from July 1, 2025 to January 1, 2026, upon their return in January to allow an evaluation of the costs and benefit design in this bill within that broader context. (Emphasis added.)

However, the legislature has not introduced legislation in line with the Governor’s request, and the February 21, 2025, deadline for introducing new legislation has passed. While it is possible that some other bill under consideration could be amended to include a delay, that bill would have to be amended, pass both houses of the legislature and get signed into law before July 1, 2025.

Q2: Does SB 729 require small group employers to cover any infertility diagnosis or treatment?

Answer: No. SB 729 does not require small group employers to cover any infertility diagnosis or treatment.

The source for this confusion lies in the somewhat confusing language of the statute. The law provides,

A small group health care service plan contract, except a specialized health care service plan contract, which is issued, amended, or renewed on or after July 1, 2025, shall offer coverage for the diagnosis and treatment of infertility and fertility services. This paragraph shall not be construed to require a small group health care service plan contract to provide coverage for infertility services.” (Emphasis added.)

The key words in the paragraph are “offer” and “provide coverage.” Those two terms have different meanings. Small group carriers have to offer to employers the option to cover infertility under this law. Small employers, however, don’t have to provide coverage for infertility services.

Q3: Does SB 729 require insurance carriers to cover fertility services for same-sex couples? What about for single persons?

Answer: Yes. The law’s definition of “infertility” is as follows: A condition or status characterized by any of the following:

• A licensed physician’s findings, based on a patient’s medical, sexual, and reproductive history, age, physical findings, diagnostic testing, or any combination of those factors. This definition shall not prevent testing and diagnosis of infertility before the 12-month or 6-month period to establish infertility in paragraph (3).
• A person’s inability to reproduce either as an individual or with their partner without medical intervention.
• The failure to establish a pregnancy or to carry a pregnancy to live birth after regular, unprotected sexual intercourse. For purposes of this section, “regular, unprotected sexual intercourse” means no more than 12 months of unprotected sexual intercourse for a person under 35 years of age or no more than 6 months of unprotected sexual intercourse for a person.

Section (2) above encompasses both single people of either gender as well as same-sex couples. Furthermore, the law prohibits a fully insured large group health plan from having “any exclusion, limitation, or other restriction on coverage of fertility medications that are different from those imposed on other prescription medications.” Finally, SB 729 provides that coverage for the treatment of infertility and fertility services must be provided without discrimination on the basis of age, ancestry, color, disability, domestic partner status, gender, gender expression, gender identity, genetic information, marital status, national origin, race, religion, sex, or sexual orientation.

Q4: Does SB 729 require my insurance carrier to cover the medical expenses of my gestational carrier, if I use one? What if I act as a gestational carrier or egg donor for someone else?

Answer: SB 729 prohibits “Any exclusion or denial of coverage of any fertility services based on a covered individual’s participation in fertility services provided by or to a third party” and defines “third party” to include “an oocyte, sperm, or embryo donor, gestational carrier, or surrogate that enables an intended recipient to become a parent.” What is unclear is what the statute requires an insurance company or managed care plan to cover under those arrangements. So far, health plan regulators (the California Department of Insurance (CDI) and the Department of Managed Health Care (DMHC)) have issued no clarification of the statute.

Keenan is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities, and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.