American Journal of Law & Medicine

Sex, lies, and health insurance: employer-provided health insurance coverage of abortion and infertility services and the ADA. (Americans with Disabilities Act of 1990)

I. INTRODUCTION

Employer-provided health insurance is the backbone of the American health care system. Approximately four of five workers in the United States rely on health insurance provided in the workplace.(1) Many commentators view access to health insurance as the doorway to the entire health care system.(2) Thus, the benefits covered in employer-provided health insurance plans significantly impact millions of Americans.

While private health insurance usually covers abortion, it traditionally has not covered infertility services.(3) Eventually, courts began interpreting insurance contracts to include infertility treatments,(4) leading insurers to specifically exclude infertility treatments from coverage.(5) In response, a few states have passed mandated benefit laws requiring coverage of some or all infertility services.(6) Nonetheless, current insurance coverage of infertility services is "erratic" at best.(7) These exclusions are significant because abortion and infertility services can be quite expensive(8) for the millions of infertile couples seeking some sort of infertility treatment(9) and the millions of women who have abortions each year.(10)

This Article addresses whether excluding coverage for infertility treatments and abortion from employer-provided health insurance violates the Americans with Disabilities Act (ADA).(11) The ADA, which prohibits employment discrimination against qualified individuals with disabilities,(12) generally prohibits disability-based distinctions in employer-provided health insurance.(13) Thus, if pregnancy and infertility are disabilities under the ADA, then the ADA may prohibit abortion or infertility treatment exclusions. The Equal Employment Opportunity Commission (EEOC) has issued Interim Guidance on disability-based distinctions in employer-provided health insurance indicating that the ADA generally prohibits disability-based distinctions. If excluding abortion or infertility services constitutes a disability-based distinction, then the ADA would provide a promising avenue for challenging the legality of these exclusions. However, it is uncertain whether courts will follow the EEOC's Interim Guidance.

Part II of this Article overviews the prevalence of abortion and infertility treatment, as well as details the history of insurance coverage of abortion and infertility treatments. Part III summarizes the ADA's substantive provisions and provides a brief overview of the EEOC's Interim Guidance. Part IV discusses the validity of the EEOC's Interim Guidance and concludes that the Guidance is valid and enforceable. Part V analyzes whether infertility or pregnancy are disabilities, and thus whether pregnancy or infertility-based distinctions in employer-provided health insurance constitute impermissible disability-based distinctions under the EEOC's Interim Guidance. Part V concludes that most courts will probably find infertility, but not pregnancy, to be a disability. Thus, it is argued in Part V that excluding infertility services likely constitutes a disability-based distinction whereas excluding abortion does not. This Article suggests that the ADA prohibits excluding infertility services, but not abortion.

II. OVERVIEW OF ABORTION AND INFERTILITY SERVICES AND

INSURANCE COVERAGE OF ABORTION AND INFERTILITY SERVICES

A. ABORTION

Each year, about 1.5 million women in the United States have abortions.(14) About forty to forty-six percent of women will have at least one abortion during their reproductive lifetimes.(15) Abortions range in price from about $75 to $1600, depending on the type of procedure and where it is performed.(16) The average cost for an outpatient abortion during the first trimester is $300, excluding out of pocket costs such as transportation and lost work time.(17)

While government funding of abortion for poor women has been extremely limited, coverage of abortion in private health insurance contracts surprisingly has not. Beginning in 1977, three years after the Supreme Court legalized abortion in Roe v. Wade,(18) and every year after, Congress has restricted federal funding of abortions in what is commonly known as the Hyde Amendment.(19) The Hyde Amendment's terms vary each year. In most years, it has prevented federal funding of abortion except where necessary to save the woman's life and sometimes has allowed funding in cases of rape and incest.(20) The Supreme Court has upheld the Hyde Amendment in the face of constitutional challenges.(21)

Despite this resistance to public funding, most private health insurance covers abortion services.(22) In 1994, the Alan Guttmacher Institute issued a report concluding that "[a]t least 86% of all types of typical plans routinely cover tubal ligation" and that "at least two-thirds cover abortion services when considered medically necessary or appropriate by the health care provider."(23) This high level of coverage is especially significant considering that the Pregnancy Discrimination Act (PDA) specifically states that it is not pregnancy discrimination for employers to exclude coverage of abortion in employer-provided health insurance.(24) Several states have passed statutes that severely restrict the type of coverage that private insurers can offer for abortion services,(25) but these laws may be preempted to some extent by federal law governing the provision of employee benefits.(26)

Studies have shown that the lack of insurance coverage of abortion does not actually prevent many women from having abortions.(27) Insurance restrictions have little or no impact on the number of women who have an abortion:

The decision to have an abortion is typically made for extremely compelling personal reasons. Women who have health insurance do not decide to have an abortion because their insurance will pay for it; nor do they decide against having an abortion because their insurance excludes coverage. Similarly, women who do not have insurance do not choose whether or not to have an abortion based on the availability of public funds.(28)

However, for the thousands of women who do not have access to health insurance covering abortion costs, the implications are severe. Poor women who need to have an abortion will find a way, but the struggle to find the money has two negative implications. First, women take the money from other sources, leading to financial hardships such as the "inability to pay their rent or utility bills, to buy food, or to cover their children's expenses."(29) Second, the time needed to gather the money causes delays in getting the abortion.(30) These delays can increase the risk of complications and even death. "With each week after eight weeks gestation, the risk of death increases by about 30%; the risk of serious complications increases by about 20%."(31) Furthermore, delays enhance moral considerations because "the moral issues surrounding abortion become increasingly acute as pregnancy advances. The balance of maternal and fetal rights shifts toward the fetus as viability approaches, making later abortions fraught with enhanced moral concerns for pro-choice as well as pro-life advocates."(32) Thus, even though coverage of abortion is unlikely to increase the number of abortions, the exclusion of abortion benefits can lead to significant social costs and health concerns.

B. INFERTILITY SERVICES

Millions of couples in the United States are infertile. The estimates vary from 5.3 million,(33) 2.4 million,(34) ten percent of the population,(35) to one out of six couples,(36) depending on methodology. While the number of infertile couples has stayed roughly the same over the past two decades, the number of couples seeking treatment for infertility is increasing.(37) The number of couples seeking treatment increased twenty-four percent between 1982 and 1988.(38) Estimates of the total number of couples seeking infertility treatment each year vary from two to three million.(39)

Treatments for infertility vary from counseling and home ovulation timing to simple artificial insemination to high-tech procedures such as in vitro fertilization (IVF).(40) The cost of diagnosing infertility varies from $500 to $2000.(41) Infertility treatments can range in cost from relatively inexpensive counseling to very expensive high-tech methods.(42) One source has estimated that diagnosis and treatment for couples using high-tech procedures can cost up to $100,000.(43) However, even though the use of high-tech, expensive procedures is increasing, most couples who seek help only require low-tech assistance.(45) Only about one percent use IVF or other more controversial, and expensive, measures.(46)

Private insurance coverage of infertility services currently is erratic at best.(47) Currently, about thirty percent of private insurance plans do not cover most infertility treatments and over eighty percent do not cover IVF.(47) Insurers historically have attempted to exclude coverage of infertility treatments on several grounds, each of which has now been rejected by courts and commentators.

First, insurers argued that infertility is not an illness. For example, in Witcraft v. Sunstrand Health and Disability Group Benefit Plan,(49) the insurer denied coverage for infertility treatments aimed at improving Mr. Witcraft's sperm motility on the basis that infertility is not an illness.(50) The court rejected this argument, holding that infertility is an illness because illness includes the improper functioning of bodily organs and infertility means that the reproductive organs cannot perform their natural function.(51) Several other courts have reached similar conclusions.(52) This result is consistent with decisions in other contexts. Courts have interpreted a wide range of other conditions as illnesses,(53) and the malfunction of the reproductive organs should not be treated any differently than the malfunction of any other organ.(54)

Second, insurers denied coverage on the ground that infertility treatments are not medically necessary because they do not cure the underlying medical problem. In Ralston v. Connecticut General Life Insurance Company,(55) the insurer refused to reimburse a couple for IVF on the grounds that IVF is not medically necessary for the treatment of an injury or illness.(56) The insurer argued that because IVF would not "cure Mrs. Ralston's infertility by enabling her to conceive through ordinary means," the procedure was not medically necessary.(57) The court rejected this argument for two reasons. First, such a narrow interpretation of treatment would "result in the denial of insurance coverage upon treatment of any disease which has no known "cure.'"(58) This interpretation "does not accord with reason, common sense, or the ordinary practice within the insurance industry."(59) Second, the court characterized IVF as a remedy for Mrs. Ralston's reproductive organ disorder.(60) Thus, even if the court required that medically necessary treatments cure the condition, successful IVF cures the sickness, which is the inability to reproduce.(61) Other courts have held that infertility treatments are medically necessary because they replace a lost body function.(62) Without this result, the insurers' argument would exclude coverage for any treatment of a terminal illness since it does not cure the disease. Furthermore, insurance commonly covers other conditions such as "[k]idney dialysis, coronary bypass surgery, heart pacemakers, corrective vision lenses, and artificial limbs . . . which do not do anything to cure or treat the underlying condition."(63) Consistency requires coverage of infertility treatments as well.

Third, insurers refused to cover some infertility treatments, such as IVF, on the ground that they are experimental and thus excluded under experimental treatment exclusion clauses. In Reilly v. Blue Cross and Blue Shield United,(64) the trial court granted summary judgment against the plaintiffs, who sued the plan administrator for denying their claim for reimbursement of IVF expenses.(65) The plaintiffs had previously been reimbursed for other infertility treatments, but they were denied reimbursement of IVF on the ground that it was experimental - its success rate was under fifty percent and thus excluded under the general provision excluding experimental procedures.(66)

The court's reasoning is persuasive. The Seventh Circuit concluded that the plaintiffs, evidence that IVF is now a medically accepted procedure was sufficient to raise a fact issue as to whether IVF is experimental, and thus the trial court erred in granting summary judgment.(67) Even though the success rate for IVF and other hightech procedures is about twenty-five percent,(68) the success rate alone cannot be determinative of whether something is experimental. This would mean that terminally ill patients could never be treated because the overall success rate is zero. In 1989, nearly 4300 babies were born as a result of high-tech reproductive methods.(69) "A total of nearly 4300 babies born in a single year is difficult to characterize as `experimental.'"(70)

As a result of these court decisions concluding that those insurance policies included coverage of infertility treatments, insurers began to include specific exclusionary clauses.(71) For example, in 1985, a class of plaintiffs sued Kaiser Foundation Health Plan for breach of contract when Kaiser refused to pay for IVF.(72) Kaiser settled and then reworded its policy to state that IVF is "not a customary procedure ' required to save a life or cure a disease."(73) As a result, the vast majority of private insurance policies do not cover IVF or many other types of infertility treatments.(74)

In response, a few states have passed statutes mandating that private health insurers either offer or provide coverage for many types of infertility treatments, including IVF,(75) although some of these laws may be preempted by federal law.(76) Despite the fact that most insurance policies exclude coverage of infertility treatments, the OTA estimated in 1989 that in reality, private insurance reimburses about seventy percent of infertility treatment expenses:(77)

Some individual procedures are covered, particularly if they are not identified as part of an overall treatment for infertility. In other instances, some physicians find disingenuous ways to invoice for fertility services, so as to obtain reimbursement from insurers for their patients. Treatment related to IVF is specifically excluded from coverage by the majority of health plans, but substantial reimbursement occurs for the various components of IVF treatment ... Subterfuge by some physicians in order to obtain reimbursement for their patients from insurers is reported to include invoicing for egg retrieval for IVF under the guise of "aspirating a trapped oocyte."(78)

Nevertheless, broader insurance coverage of infertility treatments would certainly increase access to and demand for the services from couples who might not be able to gamble on the insurance coverage and from couples who cut treatments short because they run out of money.(79)

III. THE AMERICANS WITH DISABILITIES ACT

A. OVERVIEW

In 1990, Congress passed the ADA in order to "assure equality of opportunity" for individuals with disabilities.(80) The ADA covers a much broader range of individuals than have ever been covered by federal disability law.(81) While the ADA is broader than previous federal disability law, Congress borrowed many of the substantive provisions from previous disability law statutes and cases(82) and intended courts to use these in interpreting the ADA.(83)

The ADA defines disability as "a physical or mental impairment that substantially limits one or more of the major life activities."(84) The ADA prohibits discrimination "because of" a disability with regard to all terms, conditions, and privileges of employment.(85) Besides more traditional definitions of discrimination,(86) the ADA also defines discrimination as failing to provide reasonable accommodations(87) to known disabilities, unless the employer can demonstrate that accommodating the individual would impose an "undue hardship on the operation of the business."(88) An employer is not required, however, to accommodate an employee who is not qualified to perform the essential functions of the job.(89)

Although the ADA covers the provision of health insurance to employees, it is unclear to what extent the ADA prohibits disability-based discrimination. The ADA forbids discrimination on the basis of disability in all "terms, conditions, and privileges of employment."(90) According to the EEOC's ADA Regulations, this nondiscrimination mandate includes "[f]ringe benefits available by virtue of employment, whether or not administered by the [employer]."(91) The ADA's legislative history is replete with references to the importance of providing protection relating to fringe benefits.(92) However, the ADA also has a specific provision relating to the provision of insurance, which indicates that the ADA does not prohibit insurers from underwriting or classifying risks in accordance with state law, as long as such classification are not being used as "a subterfuge to evade the purposes" of the ADA.(93) The legislative history states many times that the ADA was not intended to fundamentally alter the way insurance is provided or to undermine the system of classifying risks.(94) This system encompasses classifications that distinguish among different types of conditions, some of which are disabilities under the ADA. Thus, the extent to which the ADA prohibits disability-based classification in health insurance is uncertain. The EEOC has recently issued interim guidelines to address this issue.

B. The EEOC's Interim Guidance on Disability-Based Distinctions:

A Summary

The EEOC has issued interim enforcement guidelines (lnterim Guidance) on the application of the ADA to disability-based distinctions in employer-provided health insurance.(95) According to the EEOC, the ADA generally "prohibits employers from discriminating on the basis of disability in the provision of health insurance to their employees."(96) The EEOC interprets [sections] 12112(a) of the ADA, which prohibits disability discrimination in regard to "job application procedures, the hiring, advancement, or discharge of employees, and privileges of employment,"(97)to include employer-provided health insurance plans.(98) Furthermore, because the ADA prohibits an employer from participating in a contractual arrangement that has the effect of discriminating against a qualified individual with a disability,(99) an employer will be liable for any discrimination from entities such as third-party insurance administrators. …

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