By Jeffrey H. Brochin, J.D.
Patients who did not have access to lactation counseling services by way of their health insurer’s in-network services and who were charged cost sharing fees for using out-of-network providers asserted a plausible violation of the Patient Protection and Affordable Care Act (ACA) (P. L. 111-148), a federal district court in Illinois has ruled. Allegations that the insurer made it nearly impossible for members to find in-network providers for lactation consultation services, and then imposed cost-sharing on members who used out-of-network providers, indicated that the insurer failed to comply with the ACA’s mandate that they fully cover lactation consultation services either in-network or cost free (Briscoe v. Health Care Service Corporation, December 4, 2017, Blakey, J.).
Background. Three patients who gave birth while insured by Blue Cross and Blue Shield of Illinois (BCBSIL), and who sought lactation counseling services through Health Care Service Corporation (HCSC), an independent licensee of the Blue Cross and Blue Shield Association, were allegedly told that BCBSIL had no network of providers for lactation services or were referred to an online Provider Finder, which did not list such services. The three patients used out-of-network lactation counselors and when they submitted their claims, they were charged cost sharing amounts. They filed a putative class action lawsuit alleging violations of the ACA, and BCBSIL moved to dismiss the claims. For the reasons stated below the court partially granted and partially denied the motions.
The ACA’s requirements. The ACA requires health plans to cover certain preventive services without imposing cost sharing such as copayments, coinsurance, and deductibles. For women, health plans must fully cover preventive care and screenings that the Health Resources and Services Administration (HRSA) identifies in its guidelines. The guidelines require coverage during and after pregnancy for lactation support and counseling.
The ACA on the other hand, does not require health plans to maintain a network of lactation counselors, but plans lacking in-network providers must cover lactation counseling performed by out-of-network providers without imposing cost sharing. Plans that offer networks of providers must give participants some information about their providers: namely, an internet address (or similar contact information) for obtaining a list of network providers.
Nature of the alleged ACA violations. The patients alleged that BCBSIL violated the ACA in two main ways: (1) by improperly imposing cost sharing for lactation services; and (2) by creating administrative barriers that block access to lactation services. BCBSIL argued that they did nothing wrong and that the ACA allowed them to impose cost sharing for out-of-network services because their network in fact has lactation counseling providers. However, the court found that limiting its consideration to the allegations in the complaint, the claims that BCBSIL representatives’ denied that such providers existed in the network were to be taken as true, and ruled that a plausible claim of an ACA violation had been stated by the patients.
Conditional web content. BCBSIL offered a screenshot of information about breastfeeding counseling that HCSC allegedly posted on its website in early April 2016, and asserted that the posting advised expectant and new mothers that they may be able to receive breastfeeding support at no cost ifthey go to a trained, in-network provider. The posting further informed the insureds to ask their doctors to identify local providers who offer those services. The court found that the conditional references in the web posting failed to prove that BCBSIL actually had in-network lactation counseling providers unless several inferences were drawn in BCBSIL’s favor, which the court noted it could not do in a motion to dismiss proceeding.
Administrative barriers. The court then examined the second main claim: administrative barriers prevented or deterred women from obtaining lactation services. BCBSIL contended that the ACA says nothing about "administrative barriers" and that the patients were effectively seeking to rewrite the ACA by adding new requirements. However, the court found that such barriers rendered the putative coverage as "illusory coverage," noting that a plan is not deemed to offer coverage under the ACA if the patient cannot find the service.
Although the court granted parts of BCBSIL’s motions to dismiss as they related to claims based on ERISA’s fiduciary responsibility provisions, it denied the motions as per the above reasoning.
The case is No. 1:16-cv-10294.
Attorneys: Kimberly M. Donaldson Smith (Chimicles & Tikellis LLP) for Laura Briscoe. Martin J. Bishop (Reed Smith LLP) for Health Care Services Corp. and Blue Cross and Blue Shield of Illinois.
Companies: Health Care Services Corp.; Blue Cross and Blue Shield of Illinois
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