Metropolitan News-Enterprise


Friday, July 17, 2009


Page 1


C.A.: Insurer Need Not Provide Infertility Coverage


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal has thrown out an appeal by a woman struggling to conceive a child challenging the limited insurance coverage for infertility treatment offered by the group health plan provided to her employer.

Div. Eight held that Blue Cross of California had satisfied its statutory obligations under Health and Safety Code Sec. 1374.55 by offering to provide group coverage for infertility treatments to Deborah Yeager’s employer, which the employer declined, and in a decision Wednesday, the panel affirmed Los Angeles Superior Court Judge Victoria G. Chaney’s grant of summary judgment and dismissal of Yeager’s complaint.

Yeager was employed by Westmont College, an interdenominational Christian liberal arts college in Santa Barbara, and was a member of her employer’s group health plan with Blue Cross. When Yeager failed to conceive without medical assistance, she sought infertility treatments which ultimately proved ineffective.

Blue Cross offered the college a health care coverage renewal package containing, among other things, a checklist of legally mandated health insurance benefits that the plan must make available. The plan provided up to $2,000 per member annually for infertility treatments, but the college declined this coverage, claiming that it was too expensive.

Yeager sued Blue Cross in 2006, alleging causes of action for unfair competition and false advertising based on a violation of Sec. 1374.55, which obligates an insurer to offer infertility treatment coverage.

Yeager asserted her claims on behalf of herself and similarly situated individuals, seeking recovery of her out-of-pocket expenses for the infertility treatment she received above Blue Cross’s $2,000 annual limit and for her pain and suffering from being deprived of the chance to bear a child.

Blue Cross moved for summary judgment maintaining that Sec. 1374.55 did not obligate it to provide full coverage for infertility treatments.

Chaney and the Court of Appeal both agreed.

Sec. 1374.55 provides that “every health care service plan contract…shall offer coverage for the treatment of infertility…under those terms and conditions as may be agreed upon between the group subscriber and the plan…”

Yeager claimed that $2,000 in annual benefits did not constitute “coverage for the treatment of infertility” within the meaning of the statute because that amount would be “insufficient to diagnose, let alone provide all established medical treatment procedures…for, infertility used by licensed physicians and surgeons.”

She asserted that only about 15 percent of couples suffering from infertility can be successfully treated for less than $4,000—the plan’s $2,000 annual cap on benefits plus 50 percent co-payments by the patient of $2,000. Some infertility therapies cost nearly $20,000 to succeed, she said.

Writing for the appellate court, Acting Presiding Justice Laurence D. Rubin said Yeager’s argument was based on the erroneous premise that Blue Cross was required to offer and provide full coverage for infertility treatments, noting that “nowhere does section 1374.55 state the coverage that the parties negotiate must be full.”

“To support her demand for greater coverage, appellant ignores statutory language that says Blue Cross need only offer coverage under terms and conditions to which Westmont College and Blue Cross agree,” Rubin added, explaining that an insurer’s only duty is to make the offer of coverage and the scope and expense of that coverage is left to the mutual agreement of the parties.

Rubin contrasted the language of Sec. 1374.55 with Sec. 1374.72, which states that every health care service plan “shall provide coverage” for the diagnosis and treatment of mental illness and then sets forth the terms and conditions of coverage, to emphasize that the Legislature “knows how to limit or end the parties’ prerogative to define by mutual agreement the scope and expense of coverage under their health plan.”

As Yeager’s pleadings framed the issue of liability as being based on Blue Cross’ failure to provide full coverage, Rubin, joined by Justices Madeline Flier and Patricia A. Bigelow, said they “leave for another day the question of how generous a benefit must be to satisfy section 1374.55’s mandate to offer coverage.” 

Yeager was represented by Mark F. Didak, Neil H. Selman and Craig R. Breitman of Selman Breitman. Margaret M. Grignon, Kurt C. Peterson, Kenneth N. Smersfelt, Zareh Jaltorossian and Eric C. Schaffer of Reed Smith represented Blue Cross.

The case is Yeager v. Blue Cross of California, 09 S.O.S. 4336.


Copyright 2009, Metropolitan News Company