Metropolitan News-Enterprise


Thursday, September 24, 2009


Page 4


High Court Will Not Require Insurer to Provide Infertility Coverage


By a MetNews Staff Writer


The California Supreme Court yesterday declined to revive a challenge to the limited insurance coverage for infertility treatment offered by an employer-provided group health plan.

The justices, at their weekly conference in San Francisco, unanimously denied review of the July 15 ruling by Div. Eight of this district’s Court of Appeal in Yeager v. Blue Cross of California (2009) 175 Cal.App.4th 109. 

That panel threw out an appeal by a woman struggling to conceive a child, who contended that Blue Cross of California had engaged in false advertising and unfair business practices.

The Court of Appeal said Blue Cross 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.  The court upheld Los Angeles Superior Court Judge Victoria G. Chaney’s grant of summary judgment to Blue Cross, and the Supreme Court denied the plaintiff’s requests for review and depublication.

Yeager was employed by Westmont College, an interdenominational Christian liberal arts college located 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 company offered up to $2,000 per member annually for infertility treatments, with a 50 percent copayment, 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 the copayment. 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.” 


Copyright 2009, Metropolitan News Company