UNITEDHEALTHCARE – LACTATION SERVICES

Condry, et al. v. UnitedHealth Group Inc., et al., Case No. 3:17-cv-00183-VC (N.D. Cal.)

On January 13, 2017, Chimicles Schwartz Kriner & Donaldson-Smith LLP (“CSK&D”) filed a class action lawsuit in the Northern District of California against UnitedHealth Group Inc.; UnitedHealthcare, Inc.; UnitedHealthcare Insurance Company; and, United Healthcare Services, Inc. (collectively referred to as “UnitedHealth” or “Defendants”) for failing to provide, cover, and administer Comprehensive Lactation Benefits to all eligible plan participants and beneficiaries as a no-cost preventive service in accordance with the Affordable Care Act (“ACA”).

On August 15, 2017, United States District Judge Vince Chhabria denied, in substantial part, UnitedHealth’s motion to dismiss. UnitedHealth argued that it covers Comprehensive Lactation Benefits as required by the ACA, even if the availability of these services are not communicated to plan participants, and irrespective of plan participants’ ability to identify, reach or receive services from any purported in-network providers. See Order at pg. 3. Judge Chhabria called these arguments “absurd,” saying that these services must be available “in a meaningful way” for the plan to comply with the ACA.

On June 27, 2018, Judge Chhabria denied, in substantial part, UnitedHealth’s motion for summary judgment, finding that the ACA requires that health insurers provide meaningful access to comprehensive lactation support and counseling and “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.” See Order at pg. 2. Judge Chhabria further rejected UnitedHealth’s “parsing of the statute” with regard to preventive versus diagnostic services, finding that the ACA “requires coverage of lactation support regardless of whether a woman is receiving it in response to symptoms.” See Order at pg. 3.

Plaintiffs moved to certify a nationwide class of similarly situated women on February 20, 2019. On May 23, 2019, Judge Chhabria issued his ruling denying the motion, but gave Plaintiffs the opportunity to refile a class certification motion. In denying Plaintiffs’ motion, the Judge commented on the extent of UnitedHealth’s deficient compliance with the ACA by stating: “It seems clear that UnitedHealth’s compliance with the Affordable Care Act’s mandate to provide lactation services has been spotty at best. In fact, it almost seems as if the instances of compliance were accidental,” (order at pg. 6); and “UnitedHealth’s approach to compliance with the Affordable Care Act’s lactation coverage mandate was disinterested and haphazard…” (Order at pg. 4).

On September 9, 2019, Plaintiffs moved to certify two classes of persons who did not receive the ACA-mandated preventive care coverage for breastfeeding support and counseling services (the “Claims Reprocessing Class”), and, an additional class comprised of persons to whom UnitedHealth provided an incomprehensible reason for the denial of their claims (the “Remark Codes Class”). Plaintiffs sought both injunctive and declaratory relief, including requiring UnitedHealth to adopt and utilize proper claims procedures and standards for out-of-network lactation services claims, and to evaluate and process Plaintiffs’ and class members’ claims for out-of-network lactation services received from August 1, 2012 to present under the revised procedures. In seeking injunctive relief, Plaintiffs sought to redress the Court’s prior class certification order by concurrently filing a motion to intervene on behalf of a current UnitedHealth plan beneficiary for the purpose of adding a plaintiff who had standing to
seek prospective relief.

On December 19, 2019, Judge Chhabria denied Plaintiffs’ motion for intervention on the grounds that it would unfairly prejudicial to UnitedHealth and that there were no allegations about the likelihood that the proposed intervenor would need lactation services in the future. Then on December 23, 2019 the court entered an order granting in part, denying in part Plaintiffs’ class certification motion. The Judge granted certification as to the Remark Codes Class and denied certification as to the Claims Reprocessing Class. In granting the Remark Codes Class, the Judge directed the parties to draft a joint letter that will be sent to all class members who received one of the four remark codes in their lactation claim Explanation of Benefits. The letter will provide a clear explanation as to the basis for the denial and afford class members the opportunity to have their claim reprocessed. As for the Claims Reprocessing Class, the Judge held that a sufficiently uniform policy and practice did not exist because 12% of out-of-network lactation claims were covered, despite acknowledging that 88% of all such claims for out-of-network services were routinely denied.

Since neither party was granted summary judgment with respect to two Plaintiffs’ lactation claims, a bench trial is scheduled to commence for October 5 – October 7, 2020.

If you believe that you have been wrongfully denied breastfeeding support and counseling coverage by UnitedHealth please complete the form below.

(*) Indicates required field: When communicating with us through this site or otherwise in connection with a matter for which we do not already represent you, your communication may not be treated as privileged or confidential, and does not create an attorney-client relationship between you and our Firm.

Attorneys for this case:

Nicholas E. Chimicles
Kimberly Donaldson-Smith
Stephanie E. Saunders