BCBS Seeks Dismissal of Lactation Consultant Coverage Class Action

Blue Cross Blue Shield Association has asked a judge to dismiss a class action lawsuit accusing it of falsely claiming that lactation consultants are a covered service available to insured consumers in most locations.

In its motion to dismiss the lactation consultant coverage class action lawsuit, BCBS argues that plaintiff Jacqueline Wyka Mahajan fails to plausibly claim any misrepresentations made by BCBS, and that many of her claims are otherwise barred or preempted.

Mahajan initially filed the lactation consultant class action lawsuit against BCBS in September 2016 and filed an amended complaint a couple of months later. She asserts that the Patient Protection and Affordable Care Act of 2010 requires insurance companies such as BCBS to provide insureds with comprehensive lactation support and counseling during pregnancy and/or the postpartum period.

According to the BCBS class action lawsuit, the Surgeon General found that access to instruction from breastfeeding experts, particularly in the early postpartum period, can help new mothers successfully breastfeed their babies. Certified lactation consultants are professionals who specialize in the clinical management of breastfeeding.

“Beginning at least in or around mid-2010 and continuing through the present, defendant Blue Cross Blue Shield Association (‘Defendant’) devised and implemented a scheme to deceive the federal government, insureds and prospective insureds concerning the healthcare insurance benefits offered by Defendant,” Mahajan alleges in the BCBS class action lawsuit.

“Specifically, Defendant misrepresented the scope of its preferred provider network, falsely claiming that certified lactation consultants were “covered professional providers” and available to insureds “in most locations,” the BCBS lactation consultant class action lawsuit states.

Mahajan claims that BCBS made these representations about its lactation consultant coverage in connection with insurance offerings to federal employees while concealing that the insurer had few certified lactation consultants in its preferred provider network anywhere in the country, even though there are reportedly more than 13,000 certified lactation consultants who practice in the United States.

According to the BCBS class action lawsuit, there are no certified lactation consultants included in BCBS’s preferred provider network near New York and New Jersey, which is one of the most populated areas of the country.

Mahajan alleges that BCBS falsely portrayed its insurance offerings as more attractive than other insurance companies in order to increase the number of plan subscriptions and renewals. She says BCBS’s major competitors such as Aetna include numerous certified lactation consultants in their preferred provider networks.

The BCBS class action lawsuit asserts violations of New York business law, the New Jersey Consumer Fraud Act, fraud, and negligent misrepresentation. Mahajan is seeking injunctive relief, declaratory relief, compensatory damages, attorneys’ fees and costs, and other relief the court deems proper.

In its motion to dismiss the insurance coverage class action lawsuit, BCBS argues that Mahajan failed to exhaust administrative remedies available to her before filing her complaint. The insurer also argues that Mahajan fails to claim that BCBS ever represented its insurance plans had any in-network lactation consultants, or that it had any in-network lactation consultants located in the New York and New Jersey region.

BCBS points to a disclaimer in its brochure which states: “We cannot guarantee the availability of every specialty in all areas.” The insurer claims “there is no plausible allegation that Plaintiff was improperly led to believe an in-network lactation consultant was available.”

Mahajan is represented by Damon McDougal of Law Offices of Damon McDougal LLC.

The BCBS Lactation Consultant Class Action Lawsuit is Jacqueline Wyka Mahajan v. Blue Cross and Blue Shield Association, Case No. 1:16-cv-06944 (PKC), in the U.S. District Court for the Southern District of New York.