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Insurer’s Denial of Out-of-Network Lactation Support Claims Affirmed by Eighth Circuit



York v. Wellmark, Inc, 2020 WL 3955697 (8th Cir. 2020)

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An insurer’s failure to maintain and disclose a network of lactation support providers did not violate the Affordable Care Act (ACA) preventive health services mandate or ERISA’s fiduciary duty requirements, the Eighth Circuit has ruled. The ACA mandates that group health plans and insurers provide coverage without cost-sharing for certain types of in-network preventive health services, including comprehensive lactation support services (see our Checkpoint article). The group health plan participants in this case brought a putative class action lawsuit against their insurer after it covered their claims for in-network lactation support services but denied claims for services they received from out-of-network providers. The participants described scheduling and availability issues with in-network providers and difficulties identifying alternate in-network lactation consultants via the insurer’s online provider list (which they said did not use lactation or similar terms) or customer service representatives (who they claimed provided inconsistent and inaccurate guidance). They argued that, by erecting these administrative barriers to information and failing to establish a “network of providers” or maintain a separate list of lactation support providers, the insurer violated the ACA and ERISA. The trial court summarily ruled in favor of the insurer. The participants appealed.

Explaining that ACA regulations provide that group health plan insurers may deny coverage or impose cost-sharing for preventive health services performed by an out-of-network provider if the insurer has “in its network a provider who can provide an item or service,” the Eighth Circuit rejected the participants’ contention that the insurer failed to provide coverage because it did not maintain a “network of lactation consultants.” The court pointed out that the insurer had provided the participants with qualified, available in-network lactation support providers, and agreed with the trial court that difficulty in scheduling an appointment with a provider does not establish an insurer’s noncompliance with the mandate. The Eighth Circuit also noted that, despite an agency FAQ seeming to require provision of a list of lactation consultants (see our Checkpoint article), the ACA and implementing regulations do not require any specific disclosures. And it affirmed that ERISA’s fiduciary disclosure obligations require the insurer only to provide a list of network providers and describe when out-of-network services are covered, not specify which providers offer certain services such as lactation counseling.

EBIA Comment: Plan sponsors should proceed with caution: ERISA’s SPD regulations expressly require that the SPD describe the extent to which preventive services are covered under the plan. And other courts have held that the ACA’s mandate to provide coverage for comprehensive lactation support requires that women have meaningful access to those services—illusory or de minimis access is not sufficient (see our Checkpoint article). For more information, see EBIA’s Health Care Reform manual at Section XII.C.5 (“HRSA Recommendations Regarding Women’s Wellness Services”), EBIA’s Group Health Plan Mandates manual at Section XIV.C.4 (“HRSA Recommendations Regarding Women’s Wellness Services”), and EBIA’s Self-Insured Health Plans manual at Section XIII.C.1 (“Preventive Health Services”). See also EBIA’s ERISA Compliance manual at Sections XXIV.K (“Additional SPD Content Requirements for Group Health Plans”) and XXVIII.C (“Fiduciary Responsibilities Imposed by ERISA”).

Contributing Editors: EBIA Staff.

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