Trial Awaits Insurers Accused of Denying Breastfeeding Support

SAN FRANCISCO (CN) – UnitedHealth Group will go to trial over class action claims that it violated the Affordable Care Act by refusing to cover breastfeeding services for new mothers, a federal judge ruled Wednesday.

In a written decision, U.S. District Judge Vince Chhabria in San Francisco found too little evidence to rule for two of the six named plaintiffs, clearing the way for a bench trial on their claims that UnitedHealth failed to reimburse their out-of-network costs for lactation services as required under the Obama-era health law.

“Comprehensive lactation support and counseling was included [in the Affordable Care Act] as a form of preventative care based on the view that breastfeeding reduces the prevalence of a number of diseases in both children who breastfeed and mothers who breastfeed,” Chhabria wrote in a 9-page order. “It was further based on the view that mothers often stop breastfeeding when they experience difficulties.”

Lead plaintiff Rachel Condry sued UnitedHealth in January 2017 for 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, claimed UnitedHealth refused to reimburse her for a $225 lactation consultation by an out-of-network provider after she couldn’t find one in-network. She said she chose not to submit claims for two additional consultations after UnitedHealth denied the first claim.

Since Condry filed suit, five other plaintiffs joined the case, claiming UnitedHealth also denied or only partially reimbursed their claims for coverage by out-of-network lactation specialists after they couldn’t find any 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 encouraging breastfeeding.

A string of surgeons general have recommended breastfeeding to improve public health, and the Centers for Disease Control and Prevention touts it as one of the most effective ways new mothers can safeguard their children’s health.

Chhabria focused the bulk of his Wednesday ruling on each plaintiff’s experience trying to find in-network lactation specialists. UnitedHealth reimburses members for out-of-network breastfeeding services if no in-network provider is available 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.

But Chhabria found conflicting evidence about whether plaintiffs Laura Bishop and Jance Hoy could access in-network providers. Both may have had a lactation specialist located in their area, he said, but both also faced barriers to receiving care. Those claims will go to trial.

“The Affordable Care Act’s requirement that health insurers provide coverage for comprehensive lactation support and counseling is a requirement that women have meaningful access to those services,” Chabbria wrote. “Illusory or de minimis access is not sufficient, and a woman does not have access to lactation support if she cannot practically find those services.”

He also slammed UnitedHealth’s position that it is only required to cover “preventive” lactation services under the Affordable Care Act but not “diagnostic” ones related to symptoms that develop during breastfeeding, an interpretation he said runs roughshod over its legal obligation to provide preventive care.

“[T]he statute requires coverage of lactation support regardless of whether a woman is receiving it in response to symptoms,” Chhabria wrote.

“UnitedHealthcare’s limited view of the statute’s coverage provisions would mean that mothers would stop receiving free lactation support and counseling exactly at the moment that they started experiencing the kinds of difficulties that lead mothers to stop breastfeeding,” he added.

Also Wednesday, Chabbria ruled in favor of five of the plaintiffs on their Employee Retirement Income Security Act (ERISA) claim. The law requires that claim-denial letters explain the reason for denial in easy-to-understand language, something he said UnitedHealth failed to do.

But he found in favor of UnitedHealth on the plaintiffs’ sex discrimination claim, concluding that nothing suggested the insurer had intended to discriminate on the basis of sex.

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 breastfed 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 breastfeed 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.

A UnitedHealth spokeswoman said the company is reviewing the ruling but otherwise declined to comment.

Kimberly Donaldson Smith with Chimicles & Tikellis in Haverford, Pennsylvania represents the plaintiffs, and Rebecca Hanson with Reed Smith in Chicago represents UnitedHealth. Neither could immediately be reached for comment.

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