Family Law, Health Care / Medicine

Lawyers: 1, Discriminating Insurance Company: 0

The fact that Aetna admitted that the costs were improperly denied and reversed course is huge.

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It’s traumatic enough for couples to suffer setback after setback with fertility treatments when they are trying to conceive. Then add in a little insurance discrimination, resulting in tens of thousands of dollars of out-of-pocket costs. It’s no surprise to see a lawsuit against the insurance company claiming emotional distress.

The Class Action

On September 13, Emma Goidel filed a class-action complaint against insurance giant Aetna. Goidel described the long road of fertility treatments she and her wife underwent in order to have children. According to the suit, Goidel’s wife is a student at Columbia University, and both were covered under an insurance policy with Aetna through the wife’s student status.

When Aetna denied coverage for the fertility clinic’s recommended treatment — intrauterine insemination (IUI) with donor sperm — the couple quickly learned the details of the company’s discriminatory policy. You see, Aetna’s policies stated that it did not provide coverage until the patient was able to show that they were unable to get pregnant “after egg and sperm contact by either: (1) frequent, unprotected sex or (2) donor insemination if there is no male partner for at least (a) one year at any age, or (b) six months if older than 35.” Basically, a same-sex couple would need to go through donor insemination once a month, for 12 months, before insurance coverage kicked in.

The complaint elaborated that Aetna’s policies require individuals who cannot conceive through intercourse due to their sexual orientation or gender identity to pay out of pocket for 12 cycles (!) of IUI before Aetna will provide them with coverage for medically recommended treatment. By contrast, a heterosexual couple would merely need to represent to the doctor that they had regular unprotected sex for the required six or 12 months (depending on age) and had failed to become pregnant. Then, they would qualify for coverage without spending anything out of pocket.

Twelve cycles is a lot! And those cycles are not cheap. Goidel describes how their expenses involving six IUI cycles and one IVF cycle totaled around $45,000 in out-of-pocket costs. And they were only about halfway to the 12 cycle requirement.

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In September 2020, Aetna denied coverage for Goidel. Goidel appealed in March 2021. The prior month, in February 2021, the New York Department of Financial Services had issued a statement explicitly stating that policies that required individuals to incur costs due to their sexual orientation or gender identity, which heterosexual individuals do not incur, constitutes discrimination. In other words, Aetna’s fertility coverage policy was now clearly spelled out as illegal under New York law. (Before it had only been illegal through reasonable inferences.) Despite Goidel’s appeal clearly pointing this out, the appeal was denied.

Aetna Reverses Course

Only a couple days after Goidel’s suit was filed last week, Aetna released a statement saying that “upon further review, certain costs were improperly denied after a change in New York State coverage requirements only weeks earlier.” So, Aetna gets credit for finally doing the right thing once they were literally sued in court, by reversing course and admitting fault. Partial credit actually. Because to claim that the “coverage requirements” changed “only weeks earlier” is a pretty weak excuse. First, the requirements hadn’t changed, only the fact that the New York Department of Financial Services had explicitly called out this type of discriminatory behavior by insurance companies. Further, the complaint describes how the policy also was in violation of federal law the whole time.

Ultimately, despite the weak excuses, the fact that Aetna admitted that the costs were improperly denied and reversed course, is huge. It’s unfortunate that it took the warriors from the legal profession to file a lawsuit to make it happen, but, at the same time, it’s nice to see lawyers having a positive effect on the world.

The Bigger Problem

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The battle is won, but the war is far from over. Fertility coverage remains hard to come by. Fewer than 20 states have fertility mandates requiring insurers to include fertility services like coverage for other medical conditions. And even those states with coverage requirements vary greatly in breadth and depth of coverage. For the vast majority of the country, those facing infertility treatment are still on their own, paying out of pocket.

As New York assisted reproductive technology attorney (and my law partner) Rachel Wexler, explained, “States are definitely moving in the right direction. But many people still do not have access to fertility coverage.” There is, unfortunately, a lot of room for disparate treatment of same-sex couples. Some state mandates provide an opt-out for religious employers, entirely exclude individuals who require donor gametes to have children, or still define infertility in heterosexual terms (trying to conceive through sexual intercourse for a year before coverage kicks in). Wexler describes how “even in my home state of New York, which has gone farther than many states in requiring immediate coverage for qualified same-sex couples, most residents remain without financial assistance because the New York mandate limits the number of covered cycles, imposes age restrictions, and applies only to employers of a certain size. In a state of more than 20 million, our fertility coverage mandate only covers about 2.4 million residents.”

State mandates and lawsuits are making progress, but there is still a lot of room for improvement.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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