Dispute Over Breastfeeding Services May Lead to Trial

SAN FRANCISCO (CN) – A federal judge said Thursday he may hold a bench trial to resolve a proposed class action accusing UnitedHealth Group of violating the Affordable Care Act by failing to cover breastfeeding services for new mothers.

U.S. District Judge Vince Chhabria said in a San Francisco hearing that the record was too sparse to rule for either side as to most of the six named plaintiffs, necessitating a trial to determine whether the plaintiffs had access to lactation specialists covered by UnitedHealth.

“If we don’t understand what the state of the evidence is with respect to the individual plaintiffs, how can I adjudicate these summary judgment motions?” Chhabria said.

Lead plaintiff Rachel Condry accused UnitedHealth in January 2017 of failing to establish networks of trained lactation consultants, forcing new mothers to pay for out-of-network specialists and discouraging those who couldn’t afford the higher rates from getting care.

Condry, who sought lactation services after her newborn daughter began losing weight due to difficulties breastfeeding, claims UnitedHealth refused to reimburse her for a $225 lactation consultation by an out-of-network provider after being unable to find one in-network. She says she chose not to submit claims for two additional consultations that cost $181 and $150 after UnitedHealth denied the first claim.

Since filing suit, five other plaintiffs have joined the case, alleging UnitedHealth also denied or only partially reimbursed their claims for coverage by out-of-network lactation specialists after they couldn’t find ones in-network.

The Affordable Care Act requires coverage of women’s preventive services, including “comprehensive” breastfeeding support and counseling. The requirement is in line with a quarter-century of federal policy to encourage breastfeeding. A string of surgeons general have recommended breastfeeding for improving public health, and the Centers for Disease Control and Prevention touts it as one of the most effective ways mothers can safeguard their children’s health.

UnitedHealth contends the plaintiffs received diagnostic breastfeeding services – not preventive ones – and so isn’t required to cover them. It reasons that the ACA and guidelines released by the U.S. Department of Health and Human Services distinguish between preventive and diagnostic lactation services.

Preventive services include lactation support, supplies and counseling, UnitedHealth’s lawyer Rebecca Hanson with Reed Smith in Chicago told Chhabria; diagnostic services encompass conditions developed while breastfeeding. One plaintiff, for example, had stopped lactating and went to a specialist for help restarting, she said.

“When a patient has gone from asymptomatic to symptomatic,” the ACA doesn’t require coverage, she said, adding, “There is no language in the guidance about problems.”

Chhabria countered that the ACA does in fact classify lactation services as preventive care. “You are wrong to split up lactation services into preventive and diagnostic services,” he said.

“You’re trying to draw the line between certain types of lactation services, but when women and their babies need it the most – the babies we’re trying to protect and make healthy – I would think there would be more explicit language [in the Health and Human Services guidelines ] to support this position.”

The bulk of the four-hour hearing, however, focused on fleshing out the details of each plaintiff’s experience trying to find in-network lactation specialists. UnitedHealth reimburses members for out-of-network breastfeeding services if there is no in-network provider located within thirty miles of a member’s home, and it argues that the plaintiffs had at least one lactation specialist and “hundreds” or “thousands” of pediatricians and obstetrician-gynecologists trained in lactation counseling in their area.

Kimberly Donaldson Smith, the plaintiffs’ lawyer with Chimicles & Tikellis in Haverford, Pennsylvania, disputed UnitedHealth’s contention, arguing that not all of the insurer’s pediatricians and obstetrician-gynecologists are trained to provide lactation counseling. An expert opinion by lactation researcher Dr. Ellen Chetwynd cited in the plaintiffs’ court brief says lactation counseling requires a level of specialization beyond what physicians are taught in medical school.

According to Smith, at least one plaintiff was referred to a lactation specialist by her in-network pediatrician because the pediatrician’s facility didn’t have a specialist on staff.

“Everything has been tainted by the failure to have the correct policy and any process in place,” Smith said.

But both sides took numerous long pauses to pull up scanty evidence. By the end of the hearing, Chhabria said there were only two plaintiffs for whom he may have enough evidence to rule. He said he may grant one plaintiff summary judgment and deny summary judgment to both sides as to another plaintiff.

He did, however, indicate he will grant summary judgment to at least three plaintiffs on their Employee Retirement Income Security Act claim. The law requires that claim-denial letters explain the reason for the denial in plain language, something Chhabria said UnitedHealth had failed to do.

In 2011, the U.S. Department of Health and Human Services estimated that breastfeeding can save $1,200 to $1,500 on infant formula in the first year of a baby’s life. It estimated that if 90 percent of American mothers breastfeed exclusively for six months, the country would save $13 billion annually in reduced medical costs and costs associated with premature death.

The American Academy of Pediatrics advises new mothers to breastfed exclusively for the first six months of a child’s life, with continued breastfeeding interspersed with solid foods for at least the first year, according to reports cited in the complaint.




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