UnitedHealth Seeks OK to Appeal Breast-Feeding Support Ruling

Employee Benefits News examines legal developments that impact the employee benefits and executive compensation employers provide, including federal and state legislation, rules from federal...

By Carmen Castro-Pagan

UnitedHealth Group Inc. wants a federal judge in California to allow it to immediately appeal an order declining to dismiss claims that the insurer didn’t sufficiently cover breast-feeding support services ( Condry v. UnitedHealth Grp. Inc. , N.D. Cal., No. 3:17-cv-00183, motion to certify order for immediate appeal 9/14/17 ).

UnitedHealth bases its request on the judge’s “novel interpretation” of the Affordable Care Act provision relating to coverage for certain women’s preventive services, including lactation support, supplies, and counseling, according to court documents filed Sept. 14 in the U.S. District Court for the Northern District of California. UnitedHealth argues that an immediate appeal would resolve whether the ACA should be interpreted broadly to require “meaningful access” to lactation counseling services or more narrowly to prohibit only financial barriers to such services as cost-sharing, including deductibles, coinsurance, and copayments.

UnitedHealth cites a recent decision involving Wellmark Inc.—another insurer facing similar allegations of failing to provide lactation support services—where a federal judge in Iowa narrowly interpreted the ACA to conclude that the law doesn’t require easy access to those benefits.

If the immediate appeal is granted, the move could be followed by other health insurers that are facing similar challenges, including Health Care Services Corp. and CareFirst Inc. These insurers have also been unable to win early dismissal of alleged violations of federal health and benefit laws by not covering breast-feeding support services.

In its request, UnitedHealth argues that the judge wrongly held that the ACA requires insurers to create a separate network of lactation counseling providers or to maintain a separate list of those providers. UnitedHealth argues that the U.S. Court of Appeals for the Ninth Circuit might “see things differently” and agree with the insurer that the ACA only prohibits cost-sharing if a plan doesn’t have network providers of lactation support counseling.

More than eight in 10 mothers in the U.S. begin breast-feeding their babies at birth, according to a 2016 report issued by the Centers for Disease Control and Prevention. Many mothers start breast-feeding “but need community support to help them overcome challenges they may face” in the hospital, at home, or after they return to work, the report said.

Tycko & Zavareei LLP, Chimicles & Tikellis LLP, Shepherd Finkelman Miller & Shah LLP, and Axler Goldich LLC represent the proposed class. Reed Smith LLP represents UnitedHealth.

To contact the reporter on this story: Carmen Castro-Pagan in Washington at ccastro-pagan@bna.com

To contact the editor responsible for this story: Jo-el J. Meyer at jmeyer@bna.com

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