EBIA Weekly Newsletter

Court Rules on Coverage of Lactation Services

   July 12, 2018

Condry v. UnitedHealth Group, Inc., 2018 WL 3203046 (N.D. Cal. 2018)

A federal court has ruled in favor of health plan participants who sued their insurer and claims administrator for coverage of lactation support and counseling services. As background, insurers and non-grandfathered group health plans must provide coverage without cost-sharing for certain preventive services (including lactation support, counseling, and equipment rental) delivered by in-network providers. The participants argued that because the insurer/claims administrator lacked adequate in-network providers of lactation support and counseling, it was required to reimburse out-of-network costs.

The court held that the insurer/claims administrator was required to reimburse participants for out-of-network costs when adequate in-network providers of lactation support and counseling were not available. The court explained that the requirement that a plan or insurer provide comprehensive lactation support and counseling means that women must have meaningful access to those services and that “illusory or de minimis access is not sufficient.” (This is consistent with agency guidance requiring that a plan or insurer must cover out-of-network lactation counseling if the plan or insurer does not have a provider in its network—see our Checkpoint article.) The court was not persuaded by the insurer/claims administrator’s attempt to draw a distinction between “preventative” lactation services and “diagnostic” lactation services, and the argument that the latter need not be covered. According to the court, the applicable guidelines issued by HHS’s Health Resources and Service Administration (HRSA) do not carve out diagnostic services from the coverage of lactation support required. (HRSA is charged with developing comprehensive guidelines on preventive care and screenings for women—see our Checkpoint article.) In addition, the court ruled that the insurer/claims administrator breached its duty under ERISA by providing inadequate claims denial notices to the participants.

EBIA Comment: Plans and insurers should keep in mind that coverage of comprehensive lactation support and equipment rentals extends for the duration of breastfeeding. In addition, coverage for lactation-counseling services is required to be covered (without cost-sharing) from providers acting within the scope of their state licenses or certifications (e.g., registered nurses). Although there are no specific disclosure requirements under the preventive services mandate, other applicable laws require disclosure of in-network lactation-counseling providers available to participants under the plan. This includes the summary of benefits and coverage (SBC) and, for plans subject to ERISA, the summary plan description (SPD). For more information, see EBIA’s Health Care Reform manual at Section XII.C (“Coverage of Preventive Health Services”). See also EBIA’s Group Health Plans Mandates manual at Section XIV.C (“Required Preventive Health Services Coverage”) and EBIA’s Self-Insured Health Plans manual at Section XIII.C.1 (“Federally Mandated Benefits: Preventive Health Services”).

Contributing Editors: EBIA Staff.