Hospital chain blocks fertility coverage for its LGBT employees

An Illinois-based Catholic hospital system that employs more than 24,000 people will only cover fertility treatments for married workers of the opposite sex, a policy some lawyers say could violate federal fertility laws. discrimination.

Many health plans that cover fertility treatment services use the Centers for Disease Control and Prevention’s definition of infertility, which refers to a person unable to become pregnant after at least one year of unprotected sex.

Under the policy it transferred this year to a new third-party administrator, OSF HealthCare, which operates 15 hospitals and 132 other facilities in Illinois and Michigan, reduces that definition to “the inability for a married couple to opposite-sex spouses to conceive” and said her coverage was to help “opposite-sex married spouses” in their attempt to have a child, according to documents reviewed by Bloomberg Law.

By limiting benefits to opposite-sex spouses, the OSF policy reflects one of the first cases where an employer has explicitly excluded workers from coverage not because of objections to the treatment they seek but because of their sexual orientation, nearly a dozen lawyers and advocates said. Bloomberg Law.

Peter Romer-Friedman, an attorney with Gupta Wessler PLLC who represents a same-sex couple who filed a lawsuit against New York City for discrimination in fertility treatment, also called the language a “pretty clear violation” of the federal law on discrimination in the workplace. such as the 2020 United States Supreme Court decision in Bostock v. County of Clayton. In that case, the judges ruled that Title 7 of the Civil Rights Act protects LGBT employees from discrimination.

Allison Tanner, senior litigation attorney for the National Women’s Law Center, said some older state laws still had such “grossly discriminatory definitions,” but to see it in a benefits package in 2022 was “deeply disturbing.”

Noel León, attorney at Emery Celli Brinckerhoff Abady Ward & Maazel LLP which represents LGBT patients suing Aetna Inc. on fertility coverage, said she hadn’t heard of policy language “so explicit” as to exclude same-sex couples.

León said established law allows for exemptions for employees of religious schools, but arguing the same for religion-affiliated hospitals is new ground and could be “a tricky area.”

OSF is owned and operated by the Sisters of the Third Order of St. Francis, a religious order based in Peoria. Representatives did not respond to more than a dozen phone and email inquiries from Bloomberg Law to discuss the policy. A spokesperson for its new plan administrator, BlueCross BlueShield of Illinois, declined to comment.

A lawyer for Alliance Defending Freedom, a Christian legal defense group, said the hospital network has the right to tailor employee coverage policies to its own standards.

“The government cannot force religious healthcare providers to violate their beliefs,” lead attorney Matt Bowman said in a statement to Bloomberg Law. “Even if government officials disagree with the beliefs of a Catholic health care entity, the organization still has the freedom to provide insurance policies and health care services consistent with its beliefs.”

No OSF employee has publicly challenged the provisions of the benefits plan, which does not fall under Illinois law because it is funded by the health care system. OSF’s provision that coverage must be for married spouses is also less significant, attorneys said, because marital status is not addressed by federal discrimination law and states cannot regulate self-funded health plans.

It’s also unclear whether the plan could be challenged as discriminatory under the Affordable Care Act. Bloomberg Law reported in May that the Biden administration was considering requiring some health plans to cover fertility treatment for policyholders regardless of sexual orientation or gender identity.

In the courts

Legal battles over who should be eligible for in vitro fertilization coverage are nothing new.

The lawsuit against Aetna argues that the definition of infertility it used – “the inability to establish a clinical pregnancy after 12 months of regular, unprotected intercourse or therapeutic donor insemination” – is discriminatory in under the Affordable Care Act. Aetna denied the allegation and, in a statement, said it had “a strong history of supporting the LGBTQ+ community.”

In April, a former New York City municipal employee and her husband filed a lawsuit with the Equal Employment Opportunity Commission, alleging the city’s health plan was discriminatory for refusing the benefits of IVF coverage to male couples. A city spokesperson at the time said the Adams administration supported the rights of LGBT New Yorkers to access health care, but its lawyers were considering the request.

None of these cases involve faith-based institutions.

The high court generally ruled in favor of religious institutions, but did not do so with a broad brush. However, the court was reluctant to impose standards on claiming sincere religious belief, the requirement used in the Religious Freedom and Restoration Act, enacted in 1993.

A defense based on RFRA will be difficult, the lawyers said, because the argument typically used is that the institution has a religious objection to the proceedings as a whole. In this case, the policy does not prohibit the procedure, merely dictates who can request it.

One argument OSF HealthCare could make is that it doesn’t recognize same-sex marriages as legitimate and argues that its religious beliefs trump civil rights law, said Phyllis Borzi, former deputy secretary of the Labor Department. for benefit security under the Obama administration.

It would be difficult for any non-religious entity to overcome such a clear case of discrimination, Borzi said.

Lawyers questioned whether BlueCross BlueShield of Illinois could also face legal exposure as the plan administrator. That may depend on his involvement in setting the policy of a plan, said Joseph Wardenski, an attorney at Wardenski PC and another attorney representing plaintiffs in the NYC case.

In a Minnesota case about whether an employer’s insurance policy can exclude gender-affirming care, a judge ruled that the plan administrator was liable even though he said the employer alone set the terms cover.

Jennifer Pizer, acting legal director of Lambda Legal, the LGBT civil rights group, said the language used in OSF policy was unusual, but said this type of discrimination was “not a new problem”.

“There are many faith-based institutions that provide services to the public supported by taxpayer funding, yet wish to discriminate against some of the people they hire and some of the people they serve,” Pizer said.

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