Aetna hit with lawsuit claiming LGBTQ+ fertility discrimination
The lawsuit claims that Aetna is in violation of Section 1557 of the ACA, a section that has undergone regulatory contention over recent years.
Photo: Art Wager/Getty Images
A new class-action lawsuit filed Monday in a New York District Court alleges that the health insurer Aetna discriminates against its LGBTQ+ members by not providing equal access to fertility treatments.
The plaintiff, Emma Goidel, filed the suit after having to pay nearly $45,000 out of pocket for fertility treatments that Aetna refused to cover.
Under the Aetna Student Health Plan for Columbia University that Goidel and her partner were enrolled in, members can get their fertility services covered after one year of trying to get pregnant, defined by Aetna as "regular, unprotected sexual intercourse or therapeutic donor insemination."
Because same-sex couples cannot naturally conceive from intercourse, Aetna's policy will only cover fertility treatments after 12 months of members paying for them upfront. The suit alleges this policy causes financial, physical and emotional harm to LGBTQ+ couples enrolled in its health plan.
Specifically, the complaint says Aetna violated Section 1557 of the Affordable Care Act, New York State Human Rights Law and New York City Human Rights Law.
"Plaintiff brings this case now, on behalf of herself and all others who are unable to conceive through intercourse due to their sexual orientation or gender identity, to end Aetna's willful disregard of federal and state nondiscrimination law by prohibiting Aetna from implementing and enforcing this discriminatory policy in its New York student health plans," the case said.
While the complaint was filed by Goidel, it has the potential to grow into a much larger class-action lawsuit because it seeks to include "all individuals who are or will be covered by an Aetna student health plan in New York," and who don't meet its criteria for fertility treatment coverage.
The lawsuit cites similar policies in a number of other university health plans, including ones at Cornell University, Syracuse University and the Fashion Institute of Technology.
Goidel and her team are seeking a trial by jury that will declare Aetna's policy as discriminatory, force it to end said practices and award monetary damages.
"We learned of this suit only yesterday and are still actively investigating the facts," an Aetna spokesperson told Healthcare Finance News. "Aetna is committed to equal access to infertility coverage and reproductive health coverage for all its members, and we will continue to strive toward improving access to services for our entire membership."
WHY THIS MATTERS
The lawsuit claims that Aetna is in violation of Section 1557 of the ACA, a section that has undergone substantial regulatory contention over recent years.
Section 1557 prohibits discrimination on the basis of race, national origin, sex, gender, age or disability in covered health programs or activities. These protections were put in place in 2016 by the Obama Administration.
But in 2020, under former President Trump, the Department of Health and Human Services' Office for Civil Rights removed anti-discrimination protections around gender and sexual identities.
When the rule was passed, many claimed it exceeded OCR's authority and was inconsistent with the ACA by reducing civil rights protections for vulnerable populations such as the LGBTQ+ population, women, people with disabilities and those with limited English proficiency.
In a total reversal brought on by the Biden Administration, the OCR this May announced it would begin enforcing protections against sexual and gender identity-based discrimination. The change followed the U.S. Supreme Court's decision in Bostock v. Clayton County and subsequent court decisions.
"The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation. That's why today HHS announced it will act on related reports of discrimination," HHS Secretary Xavier Becerra said at the time.
"Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone – including LGBTQ people - should be able to access healthcare, free from discrimination or interference, period."
THE LARGER TREND
In another instance involving coverage, last fall, a group of California lawmakers sent letters to a number of insurers, including Aetna, urging them to fully cover noninvasive prenatal testing for all pregnant women in the state.
Despite its alleged discrimination against LGBTQ+ people in the court case, Aetna did expand its coverage of gender-affirming surgeries earlier this year to include breast augmentation for transfeminine members of most of its commercial plans.
Twitter: @HackettMallory
Email the writer: mhackett@himss.org
