Healthcare insurance giant Aetna has agreed to a settlement after improperly making LGBTQ policyholders pay more out of pocket than others for fertility services.
The Problem
The settlement came in a lawsuit brought because under Aetna’s previous policy, there were only two ways to qualify for coverage of (in)fertility treatments: tell Aetna you’ve been having regular, unprotected sexual intercourse for 12 months (or 6 months if the person with the womb is over 35), or spend the same amount of time on intrauterine insemination (IUI) first, paid for out of pocket. For single people and many LGBTQ people, the only option was the latter—meaning they had to pay thousands of dollars out of pocket before they could access the same benefits that different-sex couples get simply by stating that they’ve been having regular, unprotected sex.
That’s exactly what happened to Emma Goidel, who was covered by Aetna’s policy for Columbia University through her (female) spouse, a student there. Before she could qualify for Aetna’s fertility coverage, Goidel had to pay nearly $45,000 for multiple attempts at IUI and then in vitro fertilization (IVF) when IUI was unsuccessful. She had two miscarriages, but delayed trying IVF because it was more expensive, even though her doctor had suggested it as an option based on her medical history. This meant more time trying to get pregnant and more “emotional distress” at having to delay her doctor’s recommended treatment, her lawsuit (PDF) states. Goidel finally got pregnant at age 31, older than she would have been had Aetna not delayed her coverage—and age raises risks for both fetus and parent and reduces a parent’s ability to get pregnant again, if desired.
Goidel brought the suit against the company in 2021, filed with the help of the National Women’s Law Center (NWLC) and law firm Emery Celli Brinckerhoff Abady Ward & Maazel LLP. It became a class action suit on behalf of all 150,000 people covered by Aetna’s student health plans in New York. Aetna’s policy, the lawsuit said, violated a New York law that says “an insurance policy requiring LGBTQ+ individuals to pay out of pocket as a precondition for fertility treatments constitutes discrimination” and violated the Affordable Care Act’s (ACA’s) anti-discrimination provisions.
The Settlement
In September 2021, Aetna admitted wrongdoing, and last week reached a proposed settlement, subject to court approval. Under this settlement, Aetna denies liability under the ACA, but has agreed to implement the following policy changes, according to an NWLC statement:
- Aetna will introduce a new standard health benefit plan that includes assisted insemination as a benefit for all Aetna members regardless of sexual orientation;
- It will ensure that requirements in its clinical policies for proceeding to IVF are no more burdensome for LGBTQ people than for non-LGBTQ people;
- It will update its clinical policy to be consistent with new guidelines from the American Society for Reproductive Medicine (ASRM), updating the definition of “infertility” to make it more inclusive of LGBTQ and single people who seek fertility healthcare.
I wrote at length about the new ASRM guidelines when they came out last October. While they carry no legal weight, they are often cited by policymakers and legislators. In January, New Jersey used them as part of a new law making infertility coverage requirements more equitable, thus joining Maine, Illinois, Colorado, and D.C. as the only states using definitions of infertility that are clearly and fully inclusive of LGBTQ and single people. It’s gratifying to see the guidelines starting to have an impact. (Some forward-thinking companies, however, such as MassMutual, J.P. Morgan, and others, treated LGBTQ and non-LGBTQ employees equally even before the new guidelines.)
Aetna will also compensate class action members from a $2 million common fund; will re-process eligible insurance claims to reimburse class members for their out-of-pocket assisted insemination cycles, up to the plan limits; and will pay costs for administering and allocating the fund.
Goidel said in a statement:
This settlement is a big win for queer families. It means so many of us who hope to become parents or have more children can now begin the journey to do that with the same access to fertility treatment coverage as heterosexual couples. We hope other insurance companies will follow Aetna’s example and review their policies to make sure everyone has equal access to fertility care.
If you believe you are in the class of individuals covered by this settlement, NWLC says to visit this page on their site or contact: 1-800-205-6861.
