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TYCKO & ZAVAREEI LLP 

KRISTEN LAW SAGAFI, California Bar No. 222249 

ksagafi@tzlegal.com

483 Ninth Street, Suite 200 

Oakland, CA 94607 

Telephone: (510) 254-6808 

Facsimile: (202) 973-0950 

Counsel for Plaintiffs 

Additional counsel for Plaintiffs on signature page 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

RACHEL CONDRY, JANCE HOY, CHRISTINE 

ENDICOTT, LAURA BISHOP, FELICITY BARBER,

and RACHEL CARROLL on behalf of themselves and 

all others similarly situated,

 Plaintiffs,

v.

UnitedHealth Group Inc.; UnitedHealthcare, Inc.; 

UnitedHealthcare Insurance Company; 

UnitedHealthcare Services, Inc.; and UMR, Inc.,

 Defendants.

Case No.: 3:17-cv-00183-VC

SECOND AMENDED CLASS ACTION 

COMPLAINT

DEMAND FOR JURY TRIAL

Plaintiffs, Rachel Condry, Jance Hoy, Christine Endicott, Laura Bishop, Felicity Barber, and 

Rachel Carroll (collectively, the “Plaintiffs”), on behalf of themselves and all others similarly situated, 

(“Class” or “Classes,” defined below), by and through their undersigned counsel, submit this Second 

Amended Class Action Complaint against Defendants, UnitedHealth Group Inc. (“UnitedHealth 

Group”), UnitedHealthcare, Inc. (“UHC”), UnitedHealthcare Insurance Company (“UHC Insurance”), 

United Healthcare Services, Inc. (“UHC Services”) and UMR, Inc. (“UMR”) (collectively, 

“UnitedHealth” or “Defendants”). Each Plaintiff hereby alleges upon personal knowledge as to 

herself and her own acts, and upon information and belief as to all other matters, based upon, inter 

alia, the investigation undertaken by her attorneys, as follows: 

Case 3:17-cv-00183-VC Document 78 Filed 09/05/17 Page 1 of 77
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NATURE OF THE ACTION 

1. Defendants provide health benefit plans and policies of health insurance, including 

individual health benefit plans, employer-sponsored group health plans, and government-sponsored 

health benefit plans, and provide benefits administration and third-party claims processing services to 

numerous employee benefit plans (the “plan” or “plans”). 

2. Defendants have wrongfully denied and continue to deny Plaintiffs and the members of 

the Classes access to and coverage for a vital women’s preventive service – breastfeeding support, 

supplies and counseling – which coverage is mandated by The Patient Protection and Affordable Care 

Act (the “ACA”) (as amended by the Health Care and Education Reconciliation Act of 2010 

(“HCERA”) and other laws). 

3. A key directive of the ACA was that all individual and group health plans would 

provide access to and coverage for preventive health care benefits.1 As stated by the U.S. Department 

of Health & Human Services (“HHS”), prior to the enactment of the ACA, “too many Americans did 

not get the preventive care they need to stay healthy, avoid or delay the onset of disease, and reduce 

health care costs, [and,] [o]ften because of cost, Americans used preventive services at about half the 

recommended rate.” See http://www.hhs.gov/healthcare/facts-and-features/fact-sheets/aca-rules-onexpanding-access-to-preventive-services-for-women/index.html (last visited 1/11/2017).

4. In addition to the policy of promoting preventive health benefits for all, the ACA 

specifically recognized the need to address the unique preventive health needs of women throughout 

their lives. Id. Building upon the ACA’s women’s preventive health services mandate, on August 1, 

2011, HHS adopted its Health Resources and Services Administration’s (“HRSA”) Health Plan

Guidelines for Women’s Preventive Services (“HHS Guidelines”), which require access to and 

 

1

 The only exception is health insurance plans that are grandfathered. To be classified as a 

“grandfathered plan,” plans must have (1) been in existence prior to March 23, 2010; (2) refrained 

from making significant changes to the benefits or plan participants’ costs since that time; and (3) had 

at least one person enrolled in the plan on March 23, 2010 and continually covered at least one 

individual since that date. While there is no specific termination date for grandfathered status, it is 

expected that eventually all plans will lose their grandfathered status. As of 2014, only about a quarter 

of workers with employer-sponsored coverage participated in grandfathered health plans. 

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coverage for certain women’s preventive services by most non-grandfathered plans starting with the 

first plan or policy year beginning on or after August 1, 2012. 

5. The HHS Guidelines, which were recommended by the independent Institute of 

Medicine (“IOM”) and based on scientific evidence, ensure women’s accessibility to a comprehensive 

set of preventive services, including health services related to breastfeeding support, supplies and 

counseling. Under the HHS Guidelines, pregnant and postpartum women must have access to 

comprehensive lactation support and counseling provided by a trained provider during pregnancy 

and/or in the postpartum period (“Comprehensive Lactation Benefits”), as well as breastfeeding 

equipment. See HHS Guidelines, http://hrsa.gov/womensguidelines/ (last visited 1/11/2017). 

6. According to the Centers for Disease Control and Prevention (“CDC”), 

“[b]reastfeeding, with its many known health benefits for infants, children, and mothers, is a key 

strategy to improve public health.” http://www.cdc.gov/breastfeeding/pdf/2016breastfeeding 

reportcard.pdf (last visited 1/11/2017) (emphasis added). 

7. While the protection, promotion and support of breastfeeding have been a national 

public policy for over 25 years, the CDC, the American Academy of Pediatrics and the enactment of 

the ACA’s Comprehensive Lactation Benefits coverage have brought breastfeeding to the forefront of 

women’s health issues. 

8. As the then-HHS Secretary Kathleen Sebelius announced in July 2012: 

Aug. 1, 2012 ushers in a new day for women’s health when, for the first time 

ever, women will have access to eight new services at no out-of-pocket cost to 

keep them healthier.....This benefit will take effect for millions of adult and 

adolescent women over the course of the next year—and it’s just one of many 

benefits of the health care law that let women and their doctors, not insurance 

companies, make decisions about a woman’s care. 

.... Instead of letting insurance companies decide what care women receive, the 

health care law requires insurers to cover these preventive services in new plans 

beginning Aug. 1. 

...Women’s health decisions shouldn’t be made by politicians or insurance 

companies. Rather than wasting time refighting old political battles, this 

Administration is moving forward and putting women in control of their own 

health care. If women are going to take care of their families and friends, they 

have to take care of themselves. The Affordable Care Act is making it easier for 

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women to do that by making health care more accessible and affordable for 

millions of American women and families. 

“Giving Women Control Over Their Health Care,” posted July 31, 2012, By Kathleen Sebelius, 

Secretary of Health and Human Services, https://www.whitehouse.gov/blog/2012/07/31/givingwomen-control-over-their-health-care (last visited 1/11/2017) (emphasis added).

9. On October 25, 2016, the U.S. Preventive Services Task Force (“USPSTF”) issued 

updated statements again recommending interventions during pregnancy and after birth to support 

breastfeeding, including intervention by professional support, and set forth in summary the rationale 

and importance of such recommendation: 

There is convincing evidence that breastfeeding provides substantial health 

benefits for children and adequate evidence that breastfeeding provides moderate 

health benefits for women. However, nearly half of all mothers in the United 

States who initially breastfeed stop doing so by 6 months, and there are significant 

disparities in breastfeeding rates among younger mothers and in disadvantaged 

communities. 

USPSTF Reports, http://jamanetwork.com/journals/jama/fullarticle/2571249?resultClick=1; 

http://jamanetwork.com/journals/jama/fullarticle/2571243?resultClick=1; jamanetwork.com/ journals/ 

jama/article-abstract/2571222; jamanetwork.com/journals/jama/fullarticle/ 2571248? resultClick=1

(last visited 11/16/2016). 

10. Contrary to the ACA, the HHS Guidelines, USPSTF recommendations, and Secretary 

Sebelius’ expressed confidence that insurance companies could no longer dictate women’s health 

decisions, Defendants are denying Plaintiffs and the members of the Classes the ACA-mandated 

access to and coverage for Comprehensive Lactation Benefits from trained providers for insured 

pregnant and postpartum women.

11. Defendants (in their capacities as both insurers and third-party administrators of selfinsured plans) have employed the following scheme to circumvent the preventive service mandates 

established by the ACA and incorporated in their insureds’ plans: 

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(A) Defendants have not established networks of trained providers of 

Comprehensive Lactation Benefits.2 If Defendants do not establish networks and women are 

not provided a network as part of their insurance plan, one of three things occurs: 

i. Women forego Comprehensive Lactation Benefits because they are 

unable to pay out-of-pocket, ergo, Defendants never have to administer 

and pay for the preventive service; or 

ii. Women pay out-of-pocket for Comprehensive Lactation Benefits, never 

seek reimbursement from Defendants, ergo, Defendants never have to 

administer or pay for the preventive service; or 

iii. Women pay out-of-pocket for Comprehensive Lactation Benefits, seek 

reimbursement, and get either no or partial reimbursement, ergo, 

Defendants minimize their costs related to the preventive service, and 

force women to pay out-of-pocket. 

(B) It is not by Plaintiffs’ and the Class members’ own choosing to go “out-ofnetwork.” It is of Defendants’ making. Yet, Defendants exploit their wrongful conduct by 

cost-shifting and imposing costs on the insureds for what is supposed to be a preventive 

service. 

(C) Contrary to the plans’ express claims procedures, Defendants also fail to 

properly and timely process and/or respond to Plaintiffs and other participants’ benefit claims, 

and appeals for benefit claim denials. In essence, Defendants’ claims administration is 

reminiscent of a Kafkaesque bureaucratic nightmare—written appeals do not qualify as 

 

2

 Comprehensive Lactation Benefits are unlike other preventive services in an important respect. 

For example, prior to the ACA’s enactment, in-network urologists were typically available to insureds 

for male prostate exams, though generally subject to a co-pay, deductible or co-insurance. After the 

ACA’s enactment, such services were deemed preventive services that are covered at no-cost when 

provided by in-network providers. For Comprehensive Lactation Support, such services were not, 

prior to the ACA, typically covered health benefits for which established networks of trained providers 

existed. Defendants have not established networks of providers of Comprehensive Lactation Support, 

and procedures for properly processing such claims, thereby circumventing the ACA’s and their 

contractual preventive service provisions for women. 

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appeals, disappear mysteriously into the “system,” and are never substantively addressed or 

resolved, while claimants are repeatedly advised to make such written appeals when their 

previous written appeals are ignored and/or somehow have disappeared. The claims 

“administration” process and violations of law detailed herein reflect a callous disregard for the 

rights and needs of insureds, such as Plaintiffs, and this behavior is particularly egregious when 

one considers the fact that these insured individuals are recent mothers confronting the 

challenges of caring for their newborn children, as well as themselves, during a period that can 

be emotionally and physically exhausting and in which Plaintiffs and other similarly situated 

individuals should not be forced to endure the unwarranted denial of critical and needed health 

insurance coverage. 

12. The scheme violates the ACA and Defendants’ duties to Plaintiffs and the members of 

the Classes. Based on the Defendants’ conduct and the claims alleged herein, Plaintiffs, on behalf of 

themselves and the members of the Classes seek to put an end to, and secure monetary redress for, 

Defendants’ wrongful and harmful conduct. Such conduct has been taken in flagrant disregard of the 

ACA and the right it created for women to access preventive health benefits. Through this suit, 

Plaintiffs seek to recover, on behalf of themselves and members of the Classes, out-of-pocket expenses 

incurred for lactation services that should have been covered by the plans, and enjoin Defendants’ 

improper and illegal practices, and recover other and additional relief as the Court deems appropriate 

and just. 

13. Plaintiffs are enrolled in health care plans insured or administered by Defendants. 

Defendants insure and/or administer health care plans that are Employee Welfare Benefit plans, as that 

term is defined in 29 U.S.C. § 1002(1)(A), as well as individual and family health care plans offered 

directly by Defendants, or on an insurance exchange pursuant to the applicable provisions of the ACA 

(“ACA Exchanges”). 

14. Because Defendants act as “fiduciaries” of the employee benefit plans they administer, 

as defined in the Employee Retirement Income Security Act of 1974 (“ERISA”), Defendants are 

obligated to administer plan benefits in accordance with the terms of the plan documents and 

applicable law. 29 U.S.C. § 1104(a)(1)(D). In administering plan benefits, Defendants must adhere to 

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ERISA’s strict duties of loyalty and care, including the obligation to act solely in the interests of the 

plan participants and the beneficiaries. 29 U.S.C. §§ 1104(a)(1)(A)(i) and 1104(a)(1)(B). 

15. Notwithstanding these obligations and upon information and belief, at all relevant 

times, Defendants have administered claims of the plans and other ERISA plan participants and 

beneficiaries nationwide in a manner contrary to the express terms and purpose of the plans they serve, 

as well as applicable law. 

16. Defendants’ conduct with respect to establishing a network and administering benefits 

and processing claims has denied participants and beneficiaries (collectively, “participants”) in the 

plans and other plan participants benefits to which those individuals are entitled under the terms of 

their respective plans. Moreover, by employing a benefits administration and claims processing 

system that furthers Defendants’ interests, rather than the interests of plan participants, Defendants 

have breached their ERISA duties of loyalty and care. 

17. As a result of Defendants’ unlawful healthcare benefits administration and claims 

processing practices, hundreds, if not thousands, of ERISA plan participants in the United States, 

including Plaintiffs, have been: (a) improperly denied lactation and other medical service benefits; (b) 

forced to pay for lactation and other medical services which should have been approved and paid by 

the plans Defendants administer; (c) forced to incur unnecessary time and expense in appealing 

Defendants’ improper denials of benefits; and/or (d) subjected to credit disparagement and the 

prospect of being denied future lactation or other medical services due to outstanding, unpaid medical 

bills. 

18. In addition to the ACA, the Pregnancy Discrimination Act of 1978 (“PDA”) requires 

health plans to cover maternity-related expenses, and the ACA further requires breastfeeding support 

and supplies with no-cost sharing on the part of the insured. Nevertheless, Defendants have failed to 

provide in-network lactation consultants throughout the United States. Furthermore, Defendants have 

refused and continue to refuse to reimburse participants in the plans, such as Plaintiffs, for their 

expenses incurred after being compelled to seek out-of-network lactation services. 

19. Such conduct violates: the ACA; the ACA’s anti-discrimination provisions prohibiting 

discrimination on the basis of gender; the plan documents which incorporate by reference the ACA’s 

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preventive service provisions; and, ERISA. Defendants also have been unjustly enriched at Plaintiffs’ 

and the members of the Classes’ expense. Plaintiffs seek monetary and injunctive relief for 

themselves and the members of the Classes to stop and redress the substantial harms inflicted upon 

them by Defendants. 

PARTIES

Plaintiffs. 

20. Plaintiff Rachel Condry (“Plaintiff Condry”) is an adult individual residing in Oakland, 

California. Plaintiff Condry is, and was, at all relevant times, insured by a non-grandfathered UHC 

Insurance UnitedHealthcare Choice Plus plan through her spouse’s employer, Insperity Holdings, Inc. 

After the birth of her child in February 2015, Plaintiff Condry sought coverage from UHC Insurance 

for Comprehensive Lactation Benefits, but was denied coverage and not issued any reimbursement, 

resulting in an out-of-pocket expenditure of $556. 

21. Plaintiff Jance Hoy (“Plaintiff Hoy”) is an adult individual residing in Montgomery 

County, Pennsylvania. Plaintiff Hoy is, and was, at all relevant times, an employee of Santander Bank, 

N.A., a subsidiary of Santander Holdings USA, Inc., and, by virtue of that employment, was a 

participant in the health benefits plan sponsored and self-funded by Santander Holdings USA, Inc. --

the Santander Holdings USA, Inc. Flexible Benefits Plan, which was administered by UHC Services. 

After the birth of her child in September 2015, Plaintiff Hoy sought coverage from UHC Services for 

comprehensive lactation support and counseling, but was denied coverage and not issued any 

reimbursement, resulting in an out-of-pocket expenditure of $345. 

22. Plaintiff Christine Endicott (“Plaintiff Endicott”) is an adult individual residing in 

Glastonbury, Connecticut. Plaintiff Endicott was, at all relevant times, insured by a non-grandfathered 

UHC Services UnitedHealthcare Choice Plus plan through her husband’s employer, Travelers 

Companies, Inc. After the birth of her child in July 2015, Plaintiff Endicott sought coverage from UHC 

Services for comprehensive lactation support and counseling, but was denied coverage and not issued 

any reimbursement, resulting in an out-of-pocket expenditure of $255. 

23. Plaintiff Laura Bishop (“Plaintiff Bishop”) is an adult individual residing in Leander, 

Texas. At all relevant times, Plaintiff Bishop was insured by a non-grandfathered UHC Services Choice 

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Plus plan through her employer. After the birth of her child in July 2015, Plaintiff Bishop sought 

coverage from UHC Services for comprehensive lactation support and counseling, but was denied 

coverage and not issued any reimbursement, resulting in an out-of-pocket expenditure of $130.

24. Plaintiff Felicity Barber (“Plaintiff Barber”) is an adult individual residing in San 

Francisco, California. Plaintiff Barber was, at all relevant times, insured by a non-grandfathered UHC 

Insurance plan through her husband’s employer, EventBrite, Inc. After the birth of her child in February 

2016, Plaintiff Barber sought coverage from UHC Insurance for comprehensive lactation support and 

counseling, but was denied coverage and not issued any reimbursement, resulting in an out-of-pocket 

expenditure of $590.

25. Plaintiff Rachel Carroll (“Plaintiff Carroll”) is an adult individual residing in Fort 

Collins, Colorado. Plaintiff Carroll is, and was, at all relevant times, an employee of Larimer County, 

and by virtue of that employment was a participant in the health benefits plan sponsored and self-funded 

by Larimer County -- the Larimer County Employee Benefit Choice Plan, which was administered by 

UMR. After the birth of her child in August 2015, Plaintiff Carroll sought coverage from UMR for 

comprehensive lactation support and counseling, but was denied coverage and not issued any 

reimbursement, resulting in an out-of-pocket expenditure of $280. 

Defendants.

26. Defendant UnitedHealth Group, a Delaware corporation, is a diversified managed 

health care company with its principal place of business located at 9900 Bren Road East, Minnetonka, 

Minnesota. UnitedHealth Group provides a vast array of healthcare products and services through two 

business platforms: the health benefits operating under UnitedHealthcare, Inc. and health services 

operating under Optum. 

27. Defendant UHC, a subsidiary of UnitedHealth Group with its principal place of 

business in Minnesota, provides health care benefits to an array of customers and markets through 

reportable segments, including: UnitedHealthcare Employer & Individual, which serves employers 

ranging from sole proprietorships to large, multi-site and national employers, public sector employers 

and other individuals and serves the nation’s active and retired military and their families through the 

TRICARE program; UnitedHealthcare Medicare & Retirement, which delivers health and well-being 

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benefits for Medicare beneficiaries and retirees; and UnitedHealthcare Community & State, which 

manages health care benefit programs on behalf of state Medicaid and community programs and their 

participants. 

28. Defendant UMR, a UnitedHealthcare company domiciled in Delaware, is a third-party 

administrator of health insurance benefits doing business as: Avidyn Health, Fiserv Health – Kansas, 

Fiserv Health – Wausau Benefits, UMR, UMR Health Insurance Services, and UMR, Inc. which 

provide health benefit plans to members of the Classes and Plaintiff Carroll. 

29. Defendant UnitedHealthcare Insurance Company (“UHC Insurance”), doing business 

as UnitedHealthOne, is one of Defendant UnitedHealth Group’s wholly-owned subsidiaries that 

provides health benefit plans to members of the Classes and Plaintiffs Condry and Endicott. UHC 

Insurance is incorporated in Connecticut and has its principal place of business in Hartford, 

Connecticut. 

30. Defendant UHC Services, a wholly-owned subsidiary of UnitedHealth Group, provides 

health benefit plans to members of the Classes and to Plaintiffs Hoy and Bishop. UHC Services is a 

Minnesota corporation with its principal place of business in Minnesota. Through and in combination 

with UHC’s subsidiaries, affiliates and agents, it administers health insurance policies for Defendants. 

UHC Services is in the business of providing health benefit plans and policies of health insurance, 

including individual health benefit plans, employer-sponsored group health plans, and governmentsponsored health benefit plans. UHC Services is the designated claims administrator for employersponsored group health plans.

31. Defendant UHC’s UnitedHealthcare Employer & Individual segment offers an array of 

consumer health benefit plans and services nationwide, including providing: fully insured health plan 

product offerings; administrative and other management services to customers that elect to self-fund 

the health care costs of their employees and employees’ dependents; and a variety of insurance options 

for purchase by individuals, including students. UnitedHealthcare Employer & Individual offers its 

products through affiliates that are licensed as insurance companies, health maintenance organizations 

(HMOs), or third-party administrators (TPAs). In 2015, UHC’s UnitedHealthcare Employer & 

Individual segment participated in 23 individual and 12 small group state public ACA Exchanges and 

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in 2016 it participated in individual public ACA Exchange offerings in 34 states. For 2017, UHC’s 

individual and family marketplace medical policies are offered by Health Plan of Nevada, Inc., 

UnitedHealthcare of New York, Inc., or UnitedHealthcare of the Mid Atlantic, Inc.

(https://www.uhc.com/individual-and-family/understanding-health-insurance/how-insuranceworks/health-insurance-marketplace). 

32. Defendants participate in various federal, state and local government health care benefit 

programs, including as a payer in Medicare Advantage, Medicare Part D, various Medicaid programs, 

Children’s Health Insurance Programs (CHIP), and through a TRICARE contract with the Department 

of Defense which provides health insurance for the nation’s active and retired military and their 

families. UnitedHealth Group states that it “receive[s] substantial revenues from these programs.” 

2015 Form 10-K, UnitedHealth Group, at p. 16, https://www.sec.gov/Archives/edgar/data/ 

731766/000073176616000058/unh2015123110-k.htm (last visited 1/11/2017).

33. Defendant UHC’s UnitedHealthcare Military & Veterans business is the provider of 

health care services for nearly 3 million active duty and retired military service members and their 

families in 21 states under the Department of Defense’s (DoD) TRICARE Managed Care Support 

contract. UHC’s TRICARE contract began on April 1, 2013 and continues through at least 2017. See 

also, infra, ¶¶169-172.

34. In addition, Defendant UHC’s UnitedHealthcare Medicare & Retirement segment 

provides health insurance services, among other things, to individuals age 50 and older. Premium 

revenues from the Centers for Medicare & Medicaid Services (CMS) represented 26% of 

UnitedHealth Group’s total consolidated revenues for the year ended December 31, 2015, most of 

which were generated by UnitedHealthcare Medicare & Retirement. See 2015 Form 10-K, 

UnitedHealth Group, at p. 4. 

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35. Further, Defendants provide Federal Employee Program (FEP) health plan benefits to 

federal employees through various health plans, including UnitedHealthcare of California and United 

Healthcare Insurance Company, Inc.3 

36. Other UnitedHealth Group subsidiaries that provide health benefit plans to members of 

the Classes include the following entities: 

Name of Entity Doing Business As (if different)

All Savers Insurance Company

AmeriChoice Corporation

AmeriChoice Health Services, Inc.

AmeriChoice of Connecticut, Inc.

AmeriChoice of New Jersey, Inc. UnitedHealthcare Community Plan

Harken Health Insurance Company

Health Net Insurance of New York, Inc.

Health Plan of Nevada, Inc.

MAMSI Insurance Resources, LLC

MAMSI Life and Health Insurance 

Company

MAMSI LIFE AND HEALTH

MLH

Medica Health Plans of Florida, Inc. EZ Care

Medica HealthCare Plans, Inc.

Oxford Health Insurance, Inc.

Oxford Health Plans (CT), Inc.

Oxford Health Plans (NJ), Inc.

Oxford Health Plans (NY), Inc.

Oxford Health Plans LLC Oxford Agency - Oxford Health Plans 

Inc.

PacifiCare Life and Health Insurance 

Company

UnitedHealthOne

PacifiCare of Arizona, Inc. PacifiCare

Secure Horizons

PacifiCare of Colorado, Inc. Comprecare, Inc.

Secure Horizons

PacifiCare of Nevada, Inc. PacifiCare

Secure Horizons

 

3

 The Federal Employees Health Benefits Program (FEHBP) was established by the Federal 

Employees Health Benefits Act (“FEHB Act”), which was created to provide health insurance benefits 

for federal employees, annuitants, and qualified dependents. 

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Sierra Health and Life Insurance Company, 

Inc.

Sierra Health Services, Inc. Sierra Military Health Services, LLC

UHC of California PacifiCare

PacifiCare of California

Secure Horizons

UnitedHealthcare of California

Unison Health Plan of Delaware, Inc. UnitedHealthcare Community Plan

Unison Health Plan of the Capital Area, 

Inc.

UnitedHealthcare Community Plan

UnitedHealthcare Benefits of Texas, Inc. PacifiCare

Secure Horizons

UnitedHealthcare Benefits Plan of 

California 

UnitedHealthcare Community Plan of 

California, Inc.

UnitedHealthcare Community Plan of 

Georgia, Inc.

UnitedHealthcare Community Plan of Ohio, 

Inc.

Unison

Unison ABD Plus

Unison Advantage

Unison Health Plan

Unison Kids

UnitedHealthcare Community Plan of 

Texas, L.L.C.

United Healthcare - Texas

UnitedHealthcare Comminity Plan

UnitedHealthcare Community Plan, Inc.

UnitedHealthcare Insurance Company of 

Illinois

UnitedHealthcare Insurance Company of 

New York

UnitedHealthcare Insurance Company of 

the River Valley

UnitedHealthcare of Alabama, Inc.

UnitedHealthcare of Arizona, Inc.

UnitedHealthcare of Arkansas, Inc. Complete Health

UnitedHealthcare of Colorado, Inc. MetraHealth Care Plan

UnitedHealthcare of Florida, Inc. AMERICHOICE

EVERCARE AT HOME

OPTUMHEALTH

OVATIONS

UnitedHealthcare of Georgia, Inc. United HealthCare of Georgia

UnitedHealthcare of Illinois, Inc.

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UnitedHealthcare of Kentucky, Ltd. United HealthCare of Kentucky, L.P.

UnitedHealthcare of Louisiana, Inc. UnitedHealthcare Community Plan

UnitedHealthcare of Mississippi, Inc.

UnitedHealthcare of New England, Inc.

UnitedHealthcare of New Mexico, Inc.

UnitedHealthcare of New York, Inc. UnitedHealthcare Community Plan

UnitedHealthcare of North Carolina, Inc.

UnitedHealthcare of Ohio, Inc.

UnitedHealthcare of Oklahoma, Inc. PacifiCare

PacifiCare Health Options

PacifiCare of Oklahoma

Secure Horizons

UnitedHealthcare of Oregon, Inc. Secure Horizons

UnitedHealthcare of Pennsylvania, Inc.

UnitedHealthcare of Texas, Inc.

UnitedHealthcare of the Mid-Atlantic, Inc.

UnitedHealthcare of the Midlands, Inc.

UnitedHealthcare of the Midwest, Inc.

UnitedHealthcare of Utah, Inc. UnitedHealthcare of Idaho, Inc.

UnitedHealthcare of Washington, Inc. PacifiCare

Secure Horizons

UnitedHealthcare Community Plan

UnitedHealthcare of Wisconsin, Inc. UnitedHealthcare of Wisconsin -

Personal Care Plus

UnitedHealthcare Plan of the River Valley, 

Inc.

37. Whenever in this Second Amended Complaint reference is made to any act, deed or 

transaction of one of the Defendants, the allegation is imputed to its officers, directors, agents, 

employees or representatives. 

JURISDICTION AND VENUE

38. This Court has subject matter jurisdiction over this action based on diversity of 

citizenship under the Class Action Fairness Act and 28 U.S.C. § 1332(d)(2). The amount in 

controversy, exclusive of interest and costs, exceeds the sum or value of five million dollars 

($5,000,000) and this is a class action in which members of the Classes are citizens of states different 

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from Defendants. Further, greater than two-thirds of the members of the Classes reside in states other 

than the state in which Defendants are citizens. 

39. This Court also has federal question subject matter jurisdiction based on the ACA 

claims asserted herein. 

40. In addition, this action is brought under ERISA. This Court has jurisdiction pursuant to 

28 U.S.C. § 1331 and ERISA § 502(e)(1), 29 U.S.C. § 1132(e)(1). Moreover, ERISA § 502(e)(2), 29 

U.S.C. § 1132(e)(2), provides for nationwide service of process. All Defendants are residents of the 

United States and subject to service in the United States, and this Court, therefore, has personal 

jurisdiction over them. Venue is proper in this District pursuant to ERISA § 502(e)(2), 29 U.S.C. § 

1132(e)(2) and 28 U.S.C. § 1391(b), because Defendants reside or may be found in this District. 

41. This Court also has personal jurisdiction over Defendants pursuant to Fed. R. Civ. P. 

4(k)(1)(A) because they would all be subject to the jurisdiction of a court of general jurisdiction in this 

District. Each Defendant systematically and continuously conducts business in California and 

otherwise has minimum contacts with California sufficient to establish personal jurisdiction. Each 

Defendant: is authorized to do business and is conducting business throughout the United States, 

including in this District; is authorized to market and sell, and has in fact marketed and sold health 

insurance and healthcare products to citizens in this District; has sufficient minimum contacts with the 

various states of the United States, including in this District; and/or sufficiently avails itself of the 

markets of the various states of the United States, including in this District, through its promotion, 

sales, and marketing within the United States, including in this District, to render the exercise of 

personal jurisdiction by this Court permissible. 

42. Venue is proper in this District under 28 U.S.C. § 1391(b) because a substantial part of 

the events giving rise to this action occurred in this District and Defendants regularly conduct and 

transact business in this District and are therefore subject to personal jurisdiction in this District. 

Venue is also proper because Defendants are authorized to conduct business in this District and have 

intentionally availed themselves of the laws and markets within this District through promotion, 

marketing, and sales in this District. 

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FACTUAL ALLEGATIONS

A. Breastfeeding is a National Public Health Policy. 

43. The protection, promotion and support of breastfeeding have been a national public 

policy for over 25 years. In October 2000, former Surgeon General David Satcher, M.D., Ph.D.,

issued the HHS Blueprint for Action on Breastfeeding, then reiterating the commitment of previous 

Surgeons General to support breastfeeding as a public health goal. See http://www.pnmc-hsr.org/wpcontent/uploads/2011/01/BreastfeedingBlueprint.pdf (last visited 1/11/2017).

44. Breastfeeding, with its many known health benefits for infants, children, and mothers, 

is a key strategy to improve public health. According to the CDC, breastfeeding is one of the most 

effective preventive measures mothers can take to protect their health and that of their children. CDC, 

Strategies to Prevent Obesity and Other Chronic Diseases: The CDC Guide to Strategies to Support 

Breastfeeding Mothers and Babies. Atlanta: U.S. Department of Health and Human Services, 2013, 

available at: http://www.cdc.gov/breastfeeding/pdf/BF-Guide-508.PDF (last visited 1/11/2017). 

45. In 2011, Regina M. Benjamin, M D., M.B.A., Vice Admiral U.S. Public Health Service 

Surgeon General, and Kathleen Sebelius, the then-HHS Secretary, jointly issued the HHS Call to 

Action specifying the society-wide responsibilities to encourage and support breastfeeding (“HHS Call 

to Action”). HHS, The Surgeon General’s Call to Action to Support U.S. Department of Health and 

Human Services, 2011, available at: http://www.ncbi.nlm.nih.gov/books/NBK52682/pdf/ 

Bookshelf_NBK52682.pdf (last visited 1/11/2017). 

46. Further, numerous prominent medical organizations, including, but not limited to, the 

American Academy of Pediatrics, the American Academy of Family Physicians, the American 

College of Obstetricians and Gynecologists, the American College of Nurse-Midwives, the American 

Dietetic Association, and the American Public Health Association, recommend that breastfeeding 

commence immediately upon birth and continue uninterrupted until the child’s first birthday. HHS

Call to Action, supra, p. 4. 

47. Therefore, access to and coverage for Comprehensive Lactation Benefits advances the 

long-held public policy goal to improve the health of Americans by increasing access and diminishing 

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the cost barriers to sustained breastfeeding during the first year of a child’s life. As detailed in the 

HHS Call to Action:

(A) the American Academy of Pediatrics stated, “Human milk is species-specific, 

and all substitute feeding preparations differ markedly from it, making human milk uniquely 

superior for infant feeding. Exclusive breastfeeding is the reference or normative model against 

which all alternative feeding methods must be measured with regard to growth, health, 

development, and all other short- and long-term outcomes.” HHS Call to Action, supra, p. 5. 

(B) “The health effects of breastfeeding are well recognized and apply to mothers 

and children in developed nations such as the United States as well as to those in developing 

countries. Breast milk is uniquely suited to the human infant's nutritional needs and is a live 

substance with unparalleled immunological and anti-inflammatory properties that protect 

against a host of illnesses and diseases for both mothers and children.” Id. at p. 1.

(C) Quality sustained breastfeeding provides health benefits to the mother, 

including lowered risk of breast and ovarian cancers, and long term health benefits to the 

infant, which in turn enhance the health of society and decrease costs due to poor childhood 

and adult health. Breast-fed babies suffer lower rates of hospitalizations for lower respiratory 

tract diseases in the first year, gastrointestinal infection, acute ear infection, Sudden Infant 

Death Syndrome, childhood leukemia, asthma, type 2 diabetes, and childhood obesity. Id. at 

p. 2.

48. The HHS Call to Action also cited psychological, economic and environmental benefits 

attributed to breastfeeding, specifically, that breastfeeding may reduce the risk of postpartum 

depression; families who follow optimal breastfeeding practices could save more than $1,200 to 

$1,500 a year in expenditures for infant formula in the first year alone; If 90% of U.S. families 

followed guidelines to breastfeed exclusively for six months, the US would save $13 billion annually 

from reduced direct medical and indirect costs4 and the cost of premature death; if 80% of U.S. 

 

4

 Costs related to illnesses reduced or avoided through breastfeeding include: sudden infant 

death syndrome, hospitalizations for lower respiratory tract infection in infancy, atopic dermatitis, 

childhood leukemia, childhood obesity, childhood asthma and type 1 diabetes mellitus. 

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families followed the guidelines, $10.5 billion a year would be saved; and, environmentally, 

breastfeeding requires minimal additional resources (a small amount of additional calories is all that is 

required) compared to infant formula which requires a significant carbon footprint of energy to 

produce formula, paper containers to store and ship that largely end up in landfills and fuel to prepare, 

ship and store. Id. at pp. 3-4.

49. Various studies conducted by states in the context of Medicaid coverage of lactation 

services also demonstrate the need and reason for coverage of Comprehensive Lactation Benefits as a 

preventive health care benefit. North Carolina estimated that covering lactation consultations would 

prevent 14-18 infant deaths and save North Carolina Medicaid $7 million in treating common and 

sometimes lethal infancy infections, http://www.ncleg.net/DocumentSites/Committees/NCCFTF/ 

Perinatal%20Health/2014-2015/PHC%20-%20Lactation%20Cost%20Benefit%20Estimates.pdf (last 

visited 1/12/2017). 

50. Furthermore, the importance of education is a central theme in the HHS Call to Action:

“Unfortunately, education about breastfeeding is not always readily available to 

mothers nor easily understood by them. Many women rely on books, leaflets, and 

other written materials as their only source of information on breastfeeding, but 

using these sources to gain knowledge about breastfeeding can be ineffective, 

especially for low income women, who may have more success relying on role 

models. The goals for educating mothers include increasing their knowledge and 

skills relative to breastfeeding and positively influencing their attitudes about it.” 

HHS Call to Action, supra, p. 11 (emphasis added).

51. The HHS Call to Action also highlighted that mothers need “access to trained 

individuals who have established relationships with members of the health care community, are 

flexible enough to meet mother’s needs outside of the traditional work hours and locations, and 

provide consistent information.” Id. Yet, outside of the hospital setting, mothers “may have no means 

of identifying or obtaining the skilled support needed to address their concerns about lactation and 

breastfeeding; further, there may be barriers to reimbursement for needed lactation care and services.” 

Id. at p. 25. 

52. According to the HHS Call to Action, International Board Certified Lactation 

Consultants (“IBCLCs”) are credentialed health care professionals specializing in the clinical 

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management of breastfeeding certificated by the International Board of Lactation Consultant 

Examiners which operates “under the direction of the U.S. National Commission for Certifying 

Agencies and maintains rigorous professional standards” and are the “only health care professionals 

certified in lactation management.” Id. at p. 27. IBCLCs work in many health care settings, such as 

hospitals, birth centers, physicians’ offices, public health clinics, and their own offices. There are over 

15,000 certified IBCLCs in the United States and the average lactation consultation ranges from $120 

- $350 per session, based on location. 

53. In 2013, the CDC set objectives, illustrated in the chart below, to promote, support, and 

ultimately increase breastfeeding rates in the United States by 2020. See CDC, Strategies to Prevent 

Obesity and Other Chronic Diseases: The CDC Guide to Strategies to Support Breastfeeding Mothers 

and Babies. Atlanta: HHS; 2013, available at: http://www.cdc.gov/breastfeeding/pdf/BF-Guide508.PDF (last visited 1/11/2017).

54. Over the past few decades, the rate of breastfeeding has increased, but disparities have 

persisted. Research suggests that (1) race and ethnicity are associated with breastfeeding regardless of 

income, and (2) income is associated with breastfeeding regardless of race or ethnicity. 

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“5 Reasons American Women Won’t Breastfeed,” Wall Street Journal, April 14, 2014, available at: 

http://blogs.wsj.com/briefly/2014/04/14/5-reasons-american-women-wont-breastfeed/ (last visited 

1/11/2017).

55. As reported on September 3, 2016 by The New York Times Editorial Board, in 

“America’s Shocking Maternal Deaths,” the rate at which women die during pregnancy or shortly 

after childbirth has risen materially in the United States, with the United States having the secondhighest maternal mortality rate among 31 members of the Organization for Economic Cooperation and 

Development; only Mexico had a higher rate. For example, in Texas, “the maternal mortality rate 

doubled from 17.7 per 100,000 live births in 2000 to 35.8 in 2014. See

https://www.nytimes.com/2016/09/04/opinion/sunday/americas-shocking-maternal-deaths.html?_r=0

(last visited 1/11/2017). Compare that with Germany, which had 4.1 deaths per 100,000 live births in 

2014.” As the article asserted: “A big part of the problem is the inequality embedded in America’s 

health care system. The [ACA] made health insurance more available, but millions of families still 

cannot afford the care they need.” The inequality of the United States health care system exists 

directly because of conduct of the type alleged herein: insurers’ bolstering their bottom lines by 

avoiding costs of mandated women’s health care services and shifting the cost, which is more than just 

dollars and cents, to women. 

56. Addressing the pervasive disparities that existed (and continue to exist) in the American 

health care system and securing for all women and families the immense health benefits of 

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breastfeeding are the impetuses of the preventive service mandates of the ACA and its inclusion of 

providing access to and coverage of Comprehensive Lactation Benefits. 

B. Breastfeeding and Comprehensive Lactation Benefits Are Time-Sensitive.

57. Importantly, and obviously, breastfeeding is an extremely time-sensitive event. 

Initiating breastfeeding within the first hours and days of a newborn’s life can significantly impact its 

success. HHS Call to Action, supra, pp. 21-22. 

58. Moreover, the need for Comprehensive Lactation Benefits often arises days after birth, 

when the mother and child are home, and during this postpartum period the provision of 

Comprehensive Lactation Benefits is essential to the continuation of successful breastfeeding. Id. at p. 

13. Further, continuation of breastfeeding upon illness or a mother’s return to work presents another 

critical milestone; it is at such times that a mother may seek Comprehensive Lactation Benefits, as 

well as access to breastfeeding pumps. Id. at pp. 29-32. 

59. Lactation support, encouragement, education and counseling must be timely and occur 

during pregnancy, at the time of birth, and until the child is weaned. Lactation equipment may be 

necessary immediately following birth, at one or several times during the first year, or continuously 

during the first year. Immediate access to lactation services and products is critical because the 

window to address such needs is narrow. 

C. The Pregnancy Discrimination Act. 

60. Since 1978, the PDA has required employers of 15 or more employees that choose to 

provide their employees with health insurance to cover pregnancy-related expenses. 

61. As explained by the United States Equal Employment Opportunity Commission: 

The Pregnancy Discrimination Act amended Title VII of the Civil Rights 

Act of 1964. Discrimination on the basis of pregnancy, childbirth, or 

related medical conditions constitutes unlawful sex discrimination under 

Title VII, which covers employers with 15 or more employees, including 

state and local governments. Title VII also applies to employment 

agencies and to labor organizations, as well as to the federal government. 

Women who are pregnant or affected by pregnancy-related conditions 

must be treated in the same manner as other applicants or employees with 

similar abilities or limitations. 

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Title VII's pregnancy-related protections include: 

. . .

• Health Insurance

Any health insurance provided by an employer must cover expenses for 

pregnancy-related conditions on the same basis as costs for other medical 

conditions. An employer need not provide health insurance for expenses 

arising from abortion, except where the life of the mother is endangered. 

Pregnancy-related expenses should be reimbursed exactly as those 

incurred for other medical conditions, whether payment is on a fixed basis 

or a percentage of reasonable-and-customary-charge basis. 

The amounts payable by the insurance provider can be limited only to the 

same extent as amounts payable for other conditions. No additional, 

increased, or larger deductible can be imposed. 

Employers must provide the same level of health benefits for spouses of 

male employees as they do for spouses of female employees. 

The U.S. Equal Employment Opportunity Commission, Facts About Pregnancy Discrimination, Sept. 8, 

2008, available at https://www.eeoc.gov/facts/fs-preg.html (last visited Sept. 29, 2016). 

D. Comprehensive Lactation Benefits Are a Preventive Service Required by the ACA. 

62. In 2010, the ACA expanded the maternity-related coverage requirement to all new 

individual and small group policies. 42 U.S.C. § 18022(b)(1)(D). Thus, beginning August 1, 2012, 

unless grandfathered, all health insurance plans, including employer-sponsored health plans, must cover, 

with no charge to the patient for “a copayment, coinsurance or deductible for those services when they 

are delivered by a network provider,” “[c]omprehensive lactation support and counseling, by a trained 

provider during pregnancy and/or in the postpartum period, and costs for renting breastfeeding 

equipment.” U.S. Department of Health and Human Services, Health Resource and Services 

Administration, Women’s Preventive Services Guidelines, available at 

http://www.hrsa.gov/womensguidelines/ (last visited Sept. 29, 2016); 29 C.F.R. 2590.715-2713. Section 

715 of ERISA, 29 U.S.C. § 1185d, incorporates the pertinent requirements of the ACA into ERISA. 

63. Section § 2713 of the ACA, which is codified at 42 U.S.C. § 300gg-13, requires nongrandfathered group health care plans and health insurers offering group or individual health insurance 

to provide coverage for a range of preventive services and mandates that the plans, “at a minimum 

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provide coverage for and shall not impose any cost sharing requirements” for such services. Specifically, 

the ACA provides the following, in relevant part: 

A group health plan and a health insurance issuer offering group or individual 

health insurance coverage shall, at a minimum provide coverage for and shall not 

impose any cost sharing requirements for . . . (4) with respect to women, such 

additional preventive care and screenings . . . as provided for in comprehensive 

guidelines supported by the Health Resources and Services Administration for 

purposes of this paragraph... 

42 U.S.C. § 300gg-13(a)(4). 

64. The term “cost-sharing” “in general” includes “deductibles, co-insurance, copayments, 

or similar charges; and any other expenditure required of an insured individual which is a qualified 

medical expense....with respect to essential health benefits covered under the plan.” 42 U.S.C § 

18022(c)(3)(A). 

65. The required preventive services derive from recommendations made by four expert 

medical and scientific bodies – the USPSTF, the Advisory Committee on Immunization Practices, the 

HRSA, and the IOM committee on women’s clinical preventive services. The USPSTF is an 

independent panel of 16 nationally-recognized experts in primary care and prevention who 

systematically review the evidence of effectiveness and develop recommendations for clinical 

preventive services. The panel is convened by the Agency for Healthcare Research and Quality, which 

is part of HHS. Recommendations issued by the USPSTF are considered to be the “gold standard” for 

clinical preventive services. When analyzing a particular preventive service, the USPSTF evaluates the 

balance of potential benefits against harms, and then assigns a letter grade to the service. A letter grade 

of “A” or “B” means the service is recommended.5 In its Final Recommendation Statement issued in 

October 2008, USPSTF recommended “intervention during pregnancy and after birth to promote and 

support breastfeeding” with a grade B.6

 

5

See USPSTF, www.uspreventiveservicestaskforce.org/Page/Name/grade-definitions (last 

visited 1/11/2017). 

6

 USPSTF, www.uspreventiveservicestaskforce.org/Page/Document/UpdateSummaryFinal/ 

breastfeeding-counseling (last visited 1/11/2017). 

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66. On October 25, 2016, an updated Evidence Report and Systematic Review with respect 

to Primary Care Interventions to Support Breastfeeding was issued updating the 2008 review 

(http://jamanetwork.com/journals/jama/fullarticle/2571248 (last visited 11/18/2016)), and the USPSTF 

again recommended, after reviewing the evidence on the effectiveness of interventions to support 

breastfeeding, “providing interventions during pregnancy and after birth to support breastfeeding (B 

recommendation).” http://jamanetwork.com/journals/ jama/fullarticle /2571249?resultClick=1 (last 

visited 1/11/2017). The USPSTF reiterated the importance and effectiveness of Comprehensive 

Lactation Benefits as follows: 

There is convincing evidence that breastfeeding provides substantial health benefits for 

children and adequate evidence that breastfeeding provides moderate health benefits for 

women. However, nearly half of all mothers in the United States who initially breastfeed 

stop doing so by 6 months, and there are significant disparities in breastfeeding rates 

among younger mothers and in disadvantaged communities. 

* * *

Adequate evidence indicates that interventions to support breastfeeding increase the 

duration and rates of breastfeeding, including exclusive breastfeeding.

67. The USPSTF recommendations are specifically incorporated into Section 2713 of the 

Public Health Service Act (29 CFR 2590.715-2713) as follows: 

[Non-grandfathered health plans] must provide coverage for all of the following 

items and services, and may not impose any cost-sharing requirements...:

(i) Evidenced-based items or services that have in effect a rating of A or B 

in the current recommendations of the United States Preventive Services 

Task Force with respect to the individual involved...;

* * *

(iv) With respect to women...evidence-informed preventive care and 

screening provided for in comprehensive guidelines supported by the 

Health Resources and Services Administration ....

68. The comprehensive HRSA Guidelines, Women’s Preventive Services: Required Health 

Plan Coverage Guidelines, were adopted and released on August 1, 2012, and expanded the previously 

required intervention to promote and support breastfeeding by specifically requiring new plans, as of 

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August 1, 2012, to cover comprehensive prenatal and postnatal lactation support and counseling, and 

breastfeeding equipment and supplies, such as breast pumps, for the duration of breastfeeding.7

69. Section 1001 of the ACA amends § 2713 of the Public Health Services Act to provide 

that all non-grandfathered group health plans and health insurance issuers offering group or individual 

coverage are required to cover one hundred percent (100%) of the costs of certain recommended 

preventive services for women, including “comprehensive lactation support and counseling and costs 

of renting or purchasing breastfeeding equipment for the duration of breastfeeding.”8

70. The ACA requirement mandating comprehensive prenatal and postnatal lactation 

support, supplies, and counseling applies to all private plans – including individual, small group, large 

group, and self-insured plans in which employers contract administrative services to a third-party 

payer – with the exception of those plans that maintain “grandfathered” status. 

71. The DOL, HHS, and the Treasury Department (the “Departments”) are charged with 

establishing regulations and guidelines that specify the implementation of the ACA. The Departments 

have jointly prepared Frequently Asked Questions (“FAQs”) regarding the implementation of the 

ACA, including FAQs regarding preventive services and Comprehensive Lactation Benefits. These 

FAQs are publicly available, including through the DOL and CMS websites.

72. In the FAQs Part XXIX, dated October 23, 2015, the Departments reiterated previous 

guidance and “answer[ed] questions from stakeholders to help people understand the laws and benefit 

from them, as intended.” See https://www.dol.gov/sites/default/files/ebsa/about-ebsa/ouractivities/resource-center/faqs/aca-part-xxix.pdf (last visited 10/18/2016). 

73. Questions 1 through 5 of the FAQs Part XXIX, which specifically address 

Comprehensive Lactation Benefits under the ACA are provided here (emphasis added): 

 

7

 See HHS, Women’s Preventive Services Guidelines, available at 

https://www.hrsa.gov/womensguidelines/ (last visited 1/11/2017). 

8

See FAQs About Affordable Care Act Implementation (Part XII), Q20, which states that 

“coverage of comprehensive lactation support and counseling and costs of renting or purchasing 

breastfeeding equipment extends for the duration of breastfeeding,” available at 

www.dol.gov/ebsa/faqs/faq-aca12.html and www.cms.gov/CCIIO/Resources/Fact-Sheets-andFAQs/aca_implementation_ faqs12.html (last visited 10/10/2016).

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Q1: Are plans and issuers required to provide a list of the lactation counseling 

providers within the network? 

Yes. The HRSA guidelines provide for coverage of comprehensive prenatal and 

postnatal lactation support, counseling, and equipment rental as part of their preventive 

service recommendations, including lactation counseling...group health plans subject to 

the Employee Retirement Income Security Act (ERISA)...must provide a Summary 

Plan Description (SPD) that describes provisions governing the use of network 

providers, the composition of the provider network, and whether, and under what 

circumstances, coverage is provided for out-of-network services ...issuers of qualified 

health plans (QHPs) in the individual market Exchanges and the SHOPs currently must 

make their provider directories available online. 

Q2: My group health plan has a network of providers and covers recommended 

preventive services without cost sharing when such services are obtained in-network. 

However, the network does not include lactation counseling providers. Is it 

permissible for the plan to impose cost sharing with respect to lactation counseling 

services obtained outside the network?

No. As stated in a previous FAQ, while nothing in the preventive services requirements 

under section 2713 of the PHS Act or its implementing regulations requires a plan or 

issuer that has a network of providers to provide benefits for preventive services 

provided out-of-network, these requirements are premised on enrollees being able to 

access the required preventive services from in-network providers...if a plan or issuer 

does not have in its network a provider who can provide a particular service, then the 

plan or issuer must cover the item or service when performed by an out-of-network 

provider and not impose cost sharing with respect to the item or service. Therefore, if a 

plan or issuer does not have in its network a provider who can provide lactation 

counseling services, the plan or issuer must cover the item or service when performed 

by an out-of-network provider without cost sharing. 

Q3: The State where I live does not license lactation counseling providers and my 

plan or issuer will only cover services received from providers licensed by the 

State. Does that mean that I cannot receive coverage of lactation counseling 

without cost sharing? 

No. Subject to reasonable medical management techniques, lactation counseling must 

be covered without cost sharing by the plan or issuer when it is performed by any 

provider acting within the scope of his or her license or certification under applicable 

State law. Lactation counseling could be provided by another provider type acting 

within the scope of his or her license or certification (for example, a registered nurse), 

and the plan or issuer would be required to provide coverage for the services without 

cost sharing. 

Q4: A plan or issuer provides coverage for lactation counseling without cost 

sharing only on an inpatient basis. Is it permissible for the plan or issuer to impose 

cost sharing with respect to lactation counseling received on an outpatient basis? 

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No. If a recommendation or guideline does not specify the frequency, method, 

treatment, or setting for the provision of a recommended preventive service, then the 

plan or issuer may use reasonable medical management techniques to determine any 

such coverage limitations. However, it is not a reasonable medical management 

technique to limit coverage for lactation counseling to services provided on an inpatient basis. Some births are never associated with a hospital admission (e.g., home 

births assisted by a nurse midwife), and it is not permissible to deny coverage without 

cost sharing for lactation support services in this case. Moreover, coverage for 

lactation support services without cost sharing must extend for the duration of the 

breastfeeding which, in many cases, extends beyond the in-patient setting for births 

that are associated with a hospital admission. 

Q5: Are plans and issuers permitted to require individuals to obtain breastfeeding 

equipment within a specified time period (for example, within 6 months of 

delivery) in order for the breastfeeding equipment to be covered without cost 

sharing? 

No. The requirement to cover the rental or purchase of breastfeeding equipment 

without cost sharing extends for the duration of breastfeeding, provided the 

individual remains continuously enrolled in the plan or coverage.9

74. Among other things, the FAQs confirm that: 

(A) Defendants are required to provide a list of in-network lactation consultants.

(B) If a plan does not have in-network lactation consultant providers, the plan may 

not impose cost sharing for lactation consulting services obtained out of network.

(C) Plans may not limit lactation counseling services to an in-patient basis. 

(D) Coverage for lactation support services must extend for the duration of 

breastfeeding. 

(E) Plans may not require individuals to obtain equipment within a specified time 

period, such as within six months of delivery, in order for it to be covered without cost sharing.

 

9

See CMS, “FAQs About Affordable Care Act Implementation (Part XXIX) And Mental Health 

Parity Implementation” (10/23/2015), Q1-5, available at: 

https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/FAQs-Part-XXIX.pdf (last 

visited /1/11/2017). 

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75. Having in-network providers of the required preventive service is key and is 

highlighted in the following relevant subsections of 29 CFR 2590.715-2713(a)(3) (titled “Coverage of 

preventive health services”) (emphasis added): 

(3) Out-of-network providers - (i) Subject to paragraph (a)(3)(ii) of this section, 

nothing in this section requires a plan or issuer that has a network of providers to 

provide benefits for items or services described in paragraph (a)(1) of this 

section that are delivered by an out-of-network provider. Moreover, nothing in 

this section precludes a plan or issuer that has a network of providers from 

imposing cost-sharing requirements for items or services described in 

paragraph (a)(1) of this section that are delivered by an out-of-network 

provider. (ii) If a plan or issuer does not have in its network a provider who can 

provide an item or service described in paragraph (a)(1) of this section, the plan or 

issuer must cover the item or service when performed by an out-of-network 

provider, and may not impose cost sharing with respect to the item or service. 

76. Plainly, absent a network, Plaintiffs and the members of the Classes cannot be deemed 

by Defendants to have chosen to have gone “out-of-network” for the services, yet that is precisely 

what Defendants have done in their administration of the preventive benefit. 

77. Defendants have forced Plaintiffs and the members of the Classes to either forego the 

preventive services or go “out-of-network” and pay the price. This practice violates the ACA, the 

anti-discrimination provisions of the ACA, the terms of the plan documents and ERISA. 

78. Further supporting the principle that an insured can only be the subject of cost sharing 

for preventive services performed by an out-of-network provider when the insured is presented with a 

“choice” of using an in-network provider for such services is the following excerpt from the July 19, 

2010 Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of 

Preventive Services Under the Patient Protection and Affordable Care Act: 

“Plans and issuers negotiate allowed charges with in-network providers as a way to promote 

effective, efficient health care, and allowing differences in cost sharing in- and out-ofnetwork enables plans to encourage use of in-network providers. Allowing zero cost sharing 

for out of network providers could reduce providers’ incentives to participate in insurer 

networks. The Departments decided that permitting cost sharing for recommended 

preventive services provided by out-of-network providers is the appropriate option to 

preserve choice of providers for individuals, while avoiding potentially larger increases in 

costs and transfers as well as potentially lower quality care.” 

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75 Fed. Reg. 41726, 41738 (July 19, 2010) (to be codified at 26 CFR 54, 29 CFR 2590 and 45 CFR 

147) (emphasis added). 

E. Defendants Have Engaged in a Systemic Practice With Respect to Comprehensive 

Lactation Benefits that Violates the Preventive Service Mandates of the ACA, Plan 

Provisions and ERISA. 

79. Defendants provide, and serve administrators for, non-grandfathered health plans that 

are required to cover certain preventive health services and screenings mandated by the ACA, 

including Comprehensive Lactation Benefits, as alleged supra. 

80. In Defendants’ Preventive Care Services, Commercial Coverage Determination 

Guideline (Effective 10/1/2016), Defendants acknowledge that the HHS requirements, for plan years 

beginning on or after August 1, 2012, include specifically the “Expanded Women’s Preventive 

Health” service of “Breastfeeding Support, Supplies, and Counseling,” and characterize their coverage 

of such services as purportedly “comprehensive”:10

 

10 https://www.unitedhealthcareonline.com/ccmcontent/ProviderII/UHC/enUS/Assets/ProviderStaticFiles/ProviderStaticFilesPdf/Tools%20and%20Resources/Policies%20and%

20Protocols/Medical%20Policies/Medical%20Policies/Preventive_Care_Services_CD.pdf (last visited 

1/10/2017). 

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81. Moreover, in Defendants’ “network bulletin” dated May 2013, which provides 

information to health care professionals and facilities, Defendants even acknowledge the need to 

“expand” their reimbursement policy to “align[] UnitedHealthcare more closely with CMS and CPT 

Guidance” and created the “Nonphysician Healthcare Professionals Billing Evaluation and 

Management Codes Policy” which included, as a separate specialist, “Lactation specialist”: 

(http://www.uhc-networkbulletin.com/page.aspx?QS=2e4c31a3756cb940c68abdcab6ee 

94c2b436a3366fc7c38bdf3821e856bbad80, last visited 11/17/2016). 

82. In addition, Defendants’ health plans and plan documents set forth that nongrandfathered health plans provide preventive care benefits consistent with the provisions of the ACA, 

including for breastfeeding support, supplies and consultation. For example, Plaintiff Condry’s 

Certificate of Coverage provides the following, which specifically tracks the ACA Preventive Services 

mandate, and cites to sources that acknowledge coverage for comprehensive breastfeeding support as a 

preventive care service: 

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(The specific URL cited in Plaintiff Condry’s Certificate of Coverage is inactive; current 

www.healthcare.gov link to Preventive care benefits for women can be found at: 

https://www.healthcare.gov/coverage/preventive-care-benefits/ and https://www.healthcare. 

gov/preventive-care-women/, last visited 1/9/2017)

83. However, the foregoing information is a subterfuge and misleading, and has not 

resulted in women getting access to and coverage for Comprehensive Lactation Benefits. Defendants 

fail to establish networks of lactation consultants nationwide and fail to provide timely, complete and 

accurate information to women of the identity of in-network lactation consultants nationwide. 

Defendants prevent women from getting access to timely and necessary Comprehensive Lactation 

Benefits and circumvent the clear requirement that health plans provide, at no-cost, Comprehensive 

Lactation Benefits as a preventive service, just like all other preventive services. 

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84. In contravention of the ACA’s preventive health services mandate and the Defendants’ 

plan documents, Defendants have failed to provide mandated preventive benefits coverage for 

Comprehensive Lactation Benefits and have established administrative procedures intended to 

frustrate and deter plan members from receiving mandated preventative benefits by, among other 

things: 

(A)failing to establish a network of lactation consultants; 

(B) improperly attributing an out-of-network characterization to Comprehensive 

Lactation Benefits in response to insureds’ inquires and when such benefits are 

sought; 

(C) providing inconsistent and misleading information through their customer 

service representatives, including but not limited to: the necessity of a gap 

exception and approval of out-of-network provider charges with the 

commitment to reimburse lactation consultation services in full prior to the 

service being provided, only to have the claim denied in whole or in part; 

(D)imposing major administrative barriers to insureds seeking to receive 

information about and access to Comprehensive Lactation Benefits, including 

gap exceptions, the failure to identify the reason a claim was denied, and the 

failure to provide consistent accurate guidance for reimbursement; 

(E) failing to construct a list of in-network providers of Comprehensive Lactation 

Benefits; and 

(F) failing to provide any list of in-network providers of Comprehensive Lactation 

Benefits, including failing to provide such list either by mail, through customer 

representatives that provide phone consultation to members, or through the 

Defendants’ websites. 

85. Defendants have also wrongly erected significant administrative barriers that prevent 

and deter women from obtaining timely Comprehensive Lactation Benefits. Among these barriers, 

Defendants have failed to establish networks of providers and failed to provide plan participants with 

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any list or directory that clearly discloses the in-network providers (if any) who are certified and 

qualified to provide Comprehensive Lactation consultations.11 

86. Defendants have, contrary to the plain intent and purpose of the ACA’s imposition of 

no-cost preventive services and the inclusion of Comprehensive Lactation Benefits as a preventive 

service, improperly shifted costs to the insured by failing to establish networks of providers of 

Comprehensive Lactation Benefits. 

87. Time is of the essence with respect to breastfeeding. Mothers who seek out and need 

guaranteed, no-cost women’s preventive services pursuant to the ACA, are victims of Defendants’ 

barriers. Defendants have erected these barriers to prevent their insureds from timely receiving, if 

they receive it at all, Comprehensive Lactation Support. Defendants then illegally force their insureds, 

who obtain such support, to pay for it, by failing to provide full reimbursement. 

F. Plaintiffs’ Experiences.

88. Each named Plaintiff, like the members of the Classes, has been denied, through 

Defendants’ wrongful conduct, the women’s preventive service benefit for Comprehensive Lactation 

Benefits that are required by the ACA and their insurance contracts. 

Plaintiff Condry 

89. Shortly after the home birth of her child on February 13, 2015, Plaintiff Condry and her 

daughter experienced difficulties breastfeeding. Initially after the birth, Plaintiff Condry’s daughter 

lost approximately 8 ounces of weight, which was deemed to be within the normal range of weight 

loss. Plaintiff Condry’s midwife and pediatrician anticipated the newborn would regain the weight 

within 2 weeks. However, irrespective of her daughter’s appetite, Plaintiff Condry’s daughter had not 

regained the weight after 3 weeks postpartum, during which time breastfeeding had become 

 

11 Physicians and clinicians who “are ambivalent about breastfeeding or who feel inadequately 

trained to assist patients with breastfeeding may be unable to properly counsel their patients on 

specifics about breastfeeding techniques, current health recommendations on breastfeeding, and 

strategies to combine breastfeeding and work.” HHS Call to Action, supra, p. 15. In a recent study of 

obstetricians’ attitudes, 75% admitted they had either inadequate or no training in how to appropriately 

educate mothers about breastfeeding. The information on breastfeeding included in medical texts is 

often incomplete, inconsistent, and inaccurate.” Id. at p. 26. 

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increasingly painful for Plaintiff Condry. In need of immediate assistance, Plaintiff Condry and her 

daughter were referred to Ellen H. Schwerin, MPH, IBCLC, RLC of Happy Milk Lactation Support. 

On March 4, 2015, Plaintiff Condry had an in-home lactation consultation provided by the IBCLC for 

which she paid $225 out-of-pocket. 

90. Following the in-home lactation consultation, Plaintiff Condry submitted the claim to 

UHC Insurance for coverage and reimbursement. UHC Insurance processed and fully denied the 

service as “not a reimbursable service,” thereby holding Plaintiff Condry responsible for the $225 

service fee. The EOB dated March 18, 2015 indicated that, “[t]his is not a reimbursable service. 

There may be a more appropriate CPT or HCPCS code that describes this service and/or the use of the 

modifier or modifier combination is inappropriate.” 

91. Irrespective of the denied claim, Plaintiff Condry and her newborn still required and 

sought the assistance of the same IBCLC on two separate occasions, March 19, 2015 and April 14, 

2015, in order to successfully continue breastfeeding. Plaintiff Condry paid $181 and $150 for the 

second and third visit, respectively. 

92. Plaintiff Condry did not submit claims for the second or third lactation consultation, nor 

did she take further action by appealing the first denied claim because she believed it would have been 

futile based upon the previous difficulties she encountered seeking coverage from UHC Insurance for 

numerous claims associated with her home birth. Specifically, when Plaintiff Condry decided to have 

a home birth, a covered service under her policy, she learned that there was no qualified midwives innetwork within 50 miles. 

93. Following the required procedure, Plaintiff Condry sought pre-approval for the home 

birth by requesting a gap exception, which was granted, but was set to expire on January 20, 2015, 

before the child’s due date of February 13, 2015. The UHC Insurance representative instructed 

Plaintiff Condry to call the day before the gap exception was to expire to have it extended. Plaintiff 

Condry then secured the services of SLB Medical Group, LLC (“SLB”), which specializes in 

insurance billing for midwives. When the SLB representative called UHC Insurance on Plaintiff 

Condry’s behalf the day before the gap exception expired, as instructed, the UHC Insurance 

representative stated that an extension would not be provided and that a new application would have to 

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be made. The UHC Insurance representative told the SLB representative to expect a call back from 

UHC Insurance with more information. No such call was received. Meanwhile, Plaintiff Condry was 

unaware that the gap exception had been denied until after the birth of her child on February 13, 2015. 

94. Plaintiff Condry submitted her claims associated with the birth of child to UHC 

Insurance for coverage. Plaintiff Condry received an EOB from UHC Insurance dated May 8, 2015 

which stated that UHC Insurance would only cover $1,391.58 of the $7,767 child birth claim, leaving 

Plaintiff Condry responsible for the remaining $6,375.42. UHC Insurance cited, among other 

justifications, that the Medicare amount was applied for the services, even though Plaintiff Condry did 

not have Medicare, since the physician or health care provider was out-of-network. Plaintiff Condry 

filed an appeal on or around May 27, 2015. On June 2, 2015, Plaintiff Condry received a letter from 

UHC Insurance acknowledging receipt of the appeal and informing her that the appeal was under 

review and that a decision would be issued within 30 days. UHC Insurance issued a decision letter on 

August 7, 2015, approximately 65 days after the June 2, 2015 letter, upholding its previous benefit 

decision. UHC Insurance re-confirmed that “this service(s) is not eligible for payment as you 

requested. You are responsible for all costs . . .”. UHC Insurance recognized that Plaintiff Condry’s 

provider “had problems reaching a UnitedHealthcare customer service representative . . .when trying 

to obtain an extension for an existing network gap approval on file . . . [however, UHC Insurance] 

cannot retroactively grant a network gap exception.” 

95. In response to UHC Insurance’s decision, Plaintiff Condry filed an appeal with the 

California Department of Insurance on December 2, 2016, which was then forwarded to the Texas 

Department of Insurance since Plaintiff Condry’s UHC Insurance policy was written in the state of 

Texas. The appeal resulted in the issuance of a reimbursement check dated February 17, 2017, made 

out to and addressed to Plaintiff Condry’s midwife for $5,053.22. The partial reimbursement for the 

home birth still held Plaintiff Condry responsible for $1,322.20 for the birth claim. 

96. Ultimately, as a result of UHC Insurance’s wrongful conduct, and the arbitrary and 

capricious claims processing practices, Plaintiff Condry was denied the no-cost Comprehensive 

Lactation Benefits she was entitled to receive under the ACA resulting in a total out-of-pocket 

expenditure of $556 for the three lactation consultations. 

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Plaintiff Hoy

97. Immediately following the birth of her child on September 4, 2015, Plaintiff Hoy 

sought lactation counseling services from the hospital based lactation consultant. After multiple 

follow-up requests, Plaintiff Hoy was finally seen by the lactation consultant. The session lasted less 

than fifteen minutes. Following discharge, Plaintiff Hoy’s pediatrician became concerned about her 

son’s weight. Indeed, because her son had been unable to regain his birth weight and, in fact, was 

rapidly losing weight, despite nursing around the clock, Plaintiff Hoy’s pediatrician referred her and 

her son to see Louisa Brandenburg, IBCLC, and Jennifer McClure, IBCLC, two qualified lactation 

consultants at the Breastfeeding Resource Center in Abington, Pennsylvania (“BRC”). Plaintiff Hoy 

also consulted with her obstetrician gynecologist (“ob/gyn”) who supported the referral to BRC as 

both the pediatrician and the ob/gyn believed that Plaintiff Hoy and her newborn son would benefit 

from the specialized services of an IBCLC as neither were in a position to provide those services.12

98. Prior to visiting BRC, Plaintiff Hoy attempted to access lactation support and 

counseling through UHC Services by performing various searches for providers on the UHC portal. 

She was unable identify any in-network lactation providers anywhere in the metropolitan Philadelphia 

area. On September 9, 2015, before receiving lactation counseling services from an out-of-network 

provider, Plaintiff Hoy called UHC Services to confirm that the services would be fully covered since 

there were no in-network providers in the Philadelphia region. 

99. During the call, reference no. C3207, the UHC Services representative informed 

Plaintiff Hoy that UHC Services would not cover the out-of-network services. Plaintiff Hoy was 

advised that any lactation consultant services offered during her hospital stay were covered, but any 

outpatient lactation services were not necessarily required to be covered by the ACA. Furthermore, 

according to the UHC Services representative, Plaintiff Hoy’s plan was silent as to whether outpatient 

lactation services were covered; therefore, UHC Services would fully deny coverage. 

 

12 In fact, Plaintiff Hoy’s pediatrician performed an exam of her son, as well as observed Plaintiff 

Hoy nursing her son, but he was unable to resolve this increasingly serious nursing issue. 

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100. Due to the urgency of the medical needs of Plaintiff Hoy and her newborn child, on 

September 10, 2015, Plaintiff Hoy sought the necessary and immediate lactation services from BRC, 

the out-of-network provider recommended by both her pediatrician and ob/gyn, with subsequent 

appointments on September 28, 2015 and October 5, 2015. The BRC lactation consultant diagnosed 

Plaintiff Hoy’s son with a tongue tie. Plaintiff Hoy was charged and paid $155 for the initial visit on 

September 10, 2015, $95 for the second visit on September 28, 2015, and $95 for the third visit on 

October 5, 2015, resulting in a total out-of-pocket expenditure of $345. 

101. On October 22, 2015, Plaintiff Hoy contacted UHC Services again to address coverage 

for the lactation services she had received. This time, the UHC Services representative informed 

Plaintiff Hoy that UHC would cover out-of-network services at 60%, in contrast to 100% for innetwork services. The representative acknowledged that since Comprehensive Lactation Benefits 

were considered a preventive care service under the ACA and in the absence of a network for the 

service, Plaintiff Hoy may be eligible for a “gap exception.” The UHC Services representative 

advised Plaintiff Hoy to file a written appeal with supporting information to UHC Services, and that 

she would receive a substantive response within 30 days. 

102. Following the representative’s advice and in accordance with the plan’s claims 

procedures, Plaintiff Hoy submitted a written appeal with the denied claims on October 23, 2015. 

Plaintiff Hoy received a form letter from UHC Services dated October 28, 2015, acknowledging that 

the written appeal had been received and informing her that a substantive response would be provided 

within 30 days. 

103. On November 17, 2015, Plaintiff Hoy received another form letter from UHC Services, 

this time informing her that her “questions and concerns . . . do not qualify as an appeal,” and “[a]s a 

result, [her] letter and any attached documents have been forwarded to the appropriate [UHC Services] 

department for review.” That letter further stated that Plaintiff Hoy would receive a response 

“shortly.” Plaintiff Hoy received no such response. 

104. On December 29, 2015, Plaintiff Hoy called UHC Services to follow up on her October 

23, 2015 written appeal. The UHC Services representative informed Plaintiff Hoy that UHC Services 

did not keep a record of what “department” Plaintiff Hoy’s October 23, 2015 written appeal was 

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forwarded to pursuant to UHC Services’ November 17, 2015 letter, and advised Plaintiff Hoy to send 

another letter describing her appeal. Plaintiff Hoy specifically asked the representative to review her 

claim and appeal information in UHC Services’ “system” to identify any missing information. The 

representative did so and confirmed that everything was in order. The representative instructed 

Plaintiff Hoy that, out of an abundance of caution, she should resubmit her appeal with the claim 

numbers provided to Plaintiff Hoy by the representative. The representative gave Plaintiff Hoy a fax 

number to use. Following these instructions, Plaintiff Hoy faxed a letter to UHC Services on the same 

day, December 29, 2015, again describing her claims, the erroneous denial of the claims, and the 

issues described above. 

105. On the same date, December 29, 2015, Plaintiff Hoy filed a complaint with the 

Pennsylvania Insurance Department, describing her experience with the appeals process and UHC 

Services’ failure to issue a timely and substantive response. 

106. On December 31, 2015, Plaintiff Hoy received another form letter from UHC Services 

– which was identical to the form letter she received on October 28, 2015 – again acknowledging that 

the written appeal had been received and informing her that a substantive response would be provided 

within 30 days. 

107. On January 11, 2016, Plaintiff Hoy received yet another form letter from UHC – which 

was identical to the letter Plaintiff Hoy received on November 17, 2015. Like the November 17, 2015 

letter, Plaintiff Hoy was informed that her “questions and concerns . . . do not qualify as an appeal,” 

and “[a]s a result, [her] letter and any attached documents have been forwarded to the appropriate 

[UHC Services] department for review.” That letter further stated that Plaintiff Hoy would receive a 

response “shortly.” Again, Plaintiff Hoy received no such response. 

108. On January 19, 2016, Plaintiff Hoy received a letter from the Pennsylvania Insurance 

Department regarding her December 29, 2015 complaint. In the letter, the Pennsylvania Insurance 

Department informed Plaintiff Hoy that it was unable to assist her because, according to UHC 

Services, Plaintiff Hoy never appealed her claim denials internally and/or UHC Services never 

formally denied her appeal, notwithstanding Plaintiff Hoy’s repeated contact with UHC Services as 

detailed above, and her two written appeals on October 23, 2015 and December 29, 2015. 

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109. Even assuming, arguendo, that Plaintiff Hoy’s claim should have been treated as a 

claim for out-of-network services (which it should not because, as set forth supra, there were no innetwork providers identified in the UHC portal or otherwise available), such treatment was contrary to 

her plan’s claims procedures, under which a participant may make three types of claims for benefits 

for out-of-network services: (1) Urgent Care request for benefits; (2) Pre-Service request for 

Benefits13; and (3) Post-Service request for Benefits.14

110. An Urgent Care request for benefits is defined as “a request for Benefits provided in 

connection with Urgent Care services, as defined in Section 14, Glossary,” with “Urgent Care 

services” defined as “treatment of an unexpected Sickness or Injury that is not life-threatening but 

requires outpatient medical care that cannot be postponed. An urgent situation requires prompt 

medical attention to avoid complications and unnecessary suffering, such as high fever, a skin rash, or 

an ear infection.” 

111. To submit a claim, the participant can either fill out a claim form or “attach a brief 

letter of explanation to the bill, and verify that the bill contains the information listed below,” or 

include the following information in the letter:

 [the participant or beneficiary’s] name and address; 

 the patient’s name, age and relationship to the Employee; 

 the number as shown on [the participant or beneficiary’s] ID card; 

 the name, address and tax identification number of the provider of the service(s); 

 a diagnosis from the Physician; 

 the date of service; 

 an itemized bill from the provider that includes: 

 - the Current Procedural Terminology (CPT) codes; 

 - a description of, and the charge for, each service; 

 - the date the Sickness or Injury began; and 

- a statement indicating either that [the participant or beneficiary is], or [is] 

not, enrolled for coverage under any other health insurance plan or program. If 

 

13 A Pre-Service request for benefits is defined as “a request for Benefits which the Plan must 

approve or in which you must obtain prior authorization from UnitedHealthcare before non-Urgent Care 

is provided.” 

14 A Post-Service request for benefits is defined as “a claim for reimbursement of the cost of nonUrgent Care that has already been provided.” 

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[the participant or beneficiary is] enrolled for other coverage [the participant 

or beneficiary] must include the name and address of the other carrier(s). 

Failure to provide that information “may delay any reimbursement.” 

112. To appeal a denied pre-service or post-service claim for benefits, the participant or 

his/her representative must submit in writing the following: 

 the patient’s name and ID number as shown on the ID card; 

 the provider’s name; 

 the date of medical service; 

 the reason [the participant or beneficiary] disagree[s] with the denial; and 

 any documentation or other written information to support [the participant or 

beneficiary’s] request. 

Denials for Urgent Care request for benefits need not be in writing, and may be completed over the 

phone. 

113. The following tables provide for the required timing under which UHC Services must 

respond, based upon the type of request: 

Urgent Care Request for Benefits 

Type of Request for Benefits or Appeal Timing

If your request for benefits is incomplete, 

UHC must notify the claimant within:

24 hours

The claimant must then provide completed 

request for benefits to UHC within:

48 hours after receiving notice of additional 

information required

UHC must notify the claimant of the benefit 

determination within:

72 hours

If UHC denies the claimant’s request for 

benefits, you must appeal an adverse benefit 

determination no later than:

180 days after receiving the adverse benefit 

determination

UHC must notify the claimant of the appeal 

decision within:

72 hours after receiving the appeal

* Urgent Care appeals need not be in writing. 

Pre-Service Request for Benefits 

Type of Request for Benefits or Appeal Timing

If the claimant’s request for benefits is filed 

improperly, UHC must notify the claimant 

within:

5 days

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If the claimant’s request for benefits is 

incomplete, UHC must notify the claimant 

within:

15 days

The claimant must then provide completed 

request for benefits to UHC within:

45 days

UHC must notify the participant of the benefit determination:

- if the initial request for benefits is complete, 

within:

15 days

- after receiving the completed request for 

benefits (if the initial request is incomplete), 

within:

15 days

The participant must appeal an adverse 

benefit determination no later than:

180 days after receiving the adverse benefit 

determination

UHC must notify the participant of the first 

level appeal decision within:

15 days after receiving the first level appeal

The participant must appeal the first level 

appeal (file a second level appeal) within:

60 days after receiving the first level appeal 

decision

UHC must notify the participant of the second 

level appeal decision within:

15 days

Post-Service Request for Benefits 

Type of Request for Benefits or 

Appeal

Timing

If the claimant’s claim is 

incomplete, UHC must notify the 

claimant within:

30 days

The claimant must then provide 

completed request for benefits to 

UHC within:

45 days

UHC must notify the participant of the benefit determination:

- if the initial claim is complete,

within:

30 days

- after receiving the completed claim 

for benefits (if the initial request is 

incomplete), within:

30 days

The participant must appeal an 

adverse benefit determination no 

later than:

180 days after receiving the adverse benefit

determination

UHC must notify the participant of 

the first level appeal decision within:

30 days after receiving the first level appeal

The participant must appeal the first 

level appeal (file a second level 

appeal) within:

60 days after receiving the first level appeal decision

UHC must notify the participant of 

the second level appeal decision 

within:

30 days

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114. In sum, more than 120 days had passed since Plaintiff Hoy first requested and was 

informed that she would be denied complete coverage for services on September 9, 2015 and more 

than 81 days had passed since Plaintiff Hoy filed her first appeal on October 23, 2015, until UHC 

informed Plaintiff Hoy on January 11, 2016, that, yet again, her written appeal did not qualify as an 

appeal—which was not a substantive response. Plaintiff Hoy has not received any updates regarding 

her claims from UHC subsequent to the January 11, 2016 letter and prior to the filing of this Second 

Amended Complaint. 

115. Plaintiff Hoy estimates that she spent approximately 20 hours trying to have her claim 

for lactation support and counseling processed and paid for by UHC Services, only to be fully denied 

reimbursement, resulting in an outstanding out-of-pocket expenditure of $345. Accordingly, because 

of Defendants’ wrongful conduct, Plaintiff Hoy was denied the no-cost ACA preventive service to 

which she was entitled. 

Plaintiff Endicott

116. A few weeks after the birth of her child on July 22, 2015, Plaintiff Endicott was 

experiencing pain while breastfeeding. She and her daughter were diagnosed and treated for thrush, a 

common infection that can affect breastfeeding. However, after the infection cleared, Plaintiff 

Endicott continued to endure difficulties breastfeeding, at which point she decided to seek the 

professional assistance of a lactation consultant. 

117. Initially, Plaintiff Endicott attempted to access Comprehensive Lactation Benefits 

through her hospital, Hartford Hospital, as suggested by her plan documents. After several unreturned 

phone calls, Plaintiff Endicott was finally able to reach the hospital-based consultant who determined, 

over the phone, that Plaintiff Endicott’s condition did not require care. 

118. Frustrated and in need of immediate help, Plaintiff Endicott turned to the internet,

where she identified Lori Atkins, RN, IBCLC, as a qualified, trained provider. Plaintiff Endicott had 

two in-home lactation consultations on September 23, 2015 and October 1, 2015. Plaintiff Endicott 

paid $215 for the first consultation and $40 for the second appointment, for a total out-of-pocket 

expenditure of $255. 

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119. Plaintiff Endicott submitted a superbill for the lactation consultations to UHC Services 

for coverage and reimbursement in October 2015. In response to these claims, Plaintiff Endicott 

received a notification from UHC Services which enclosed copies of two letters dated October 29, 

2015 addressed to Ms. Atkins. The letters confirmed that UHC Services had received two claims for 

Plaintiff Endicott for health care services provided by Ms. Atkins, but that neither claim could be 

processed because revised claim forms needed to be submitted containing the valid ICD-9 diagnosis 

code and ICD-9 indicator for the September 23, 2015 consultation, and revised ICD-10 diagnosis 

code(s) and indicator were needed for the October 1, 2015 consultation. The letters further stated that 

Plaintiff Endicott’s claims were on hold for 45 days to allow for the health care professional to submit 

the requested documentation, at which time, Plaintiff Endicott’s claims would be processed within 15 

days. 

120. Plaintiff Endicott then received another notification from UHC Services dated 

November 26, 2015, informing her of the status of her claims and instructing that no action was 

required because the two enclosed letters had been sent directly to the health care professional. 

Enclosed were copies of two letters dated November 26, 2015, addressed to Ms. Atkins advising her 

that UHC Services had received two claims for Plaintiff Endicott for health care services provided by 

Ms. Atkins, but that neither claim could be processed because revised claim forms needed to be 

submitted containing the valid ICD-9 diagnosis code(s) for the September 23, 2015 consultation, and 

the revised ICD-10 diagnosis code(s) and indicator were needed for the October 1, 2015 consultation. 

The letters further stated that Plaintiff Endicott’s claims were on hold until the requested 

documentation was provided by the health care professional, at which time, Plaintiff Endicott’s claims 

would be processed within 15 days. 

121. Plaintiff Endicott then received an EOB dated February 12, 2016 from UHC Services 

that processed both lactation consultation claims by applying $173 of the $215 charge for Plaintiff 

Endicott’s September 23, 2015 consultation to her deductible and applying the full $40 charge for her 

October 1, 2015 consultation to her deductible, leaving her responsible for the full $255. The 

explanation provided for the manner in which Plaintiff Endicott’s September 23, 2015 claim was 

processed was, “[y]our deductible has not been met. The amount shown is owed to your physician or 

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health care provider.” Meanwhile, the explanation provided for the manner in which Plaintiff 

Endicott’s October 1, 2015 claim was processed was, “[y]our plan covers the eligible expense amount 

reimbursable under your plan for covered out-of-network health services. The eligible amount is 

based on a database of competitive fees for similar services or supplies in your area. Benefits are not 

available for that portion of the charge that exceeds the eligible amount determined for this service.” 

122. When Plaintiff Endicott contacted UHC Services by phone about the denied claims, she 

was informed that the ICD-9 and 10 diagnosis codes on the superbill were not effective on the dates of 

service and that new codes existed, which, according to UHC Services, providers refused to learn. 

When Plaintiff Endicott asked for UHC Services to provide the correct codes, UHC Services refused 

to divulge that information. 

123. In addition, and in contrast to the UHC Services notifications Plaintiff Endicott 

received, the UHC Services representative told her that UHC Services had not sent Ms. Atkins the 

letters dated October 29, 2015 and November 26, 2015. Rather, UHC Services informed Plaintiff 

Endicott that it was her responsibility to notify Ms. Atkins about UHC Services’ request for additional 

information. Plaintiff Endicott contacted Ms. Atkins who confirmed that she had not received any 

letter from UHC Services concerning Plaintiff Endicott’s claims. 

124. Frustrated by UHC Services’ inconsistent, misleading, and inaccurate information, 

Plaintiff Endicott submitted a written complaint to the State of Connecticut Insurance Department on 

February 1, 2016, which prompted UHC Services to reprocess Plaintiff Endicott’s claim. According 

to UHC Services’ response to the Connecticut Insurance Examiner, UHC Services made an exception 

and re-processed Plaintiff Endicott’s claims on February 11, 2016 using the invalid ICD-10 diagnosis 

code originally provided on Plaintiff Endicott’s superbill, but since the lactation consultant was not a 

contracted provider with UnitedHealthcare, UHC Services applied the “eligible expense amount” of 

$213 ($173 for the first consultation and $40 for the second consultation) to Plaintiff Endicott’s $1,100 

non-network deductible. UHC Services further explained that “[p]er the Summary Plan Description, 

non-network providers may bill the member for any difference between the providers billed charges 

and the eligible expenses”, leaving Plaintiff Endicott responsible for the full $255. 

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125. Plaintiff Endicott estimates that she spent approximately 20 hours trying to access 

timely Comprehensive Lactation Benefits, and have her claim for lactation support processed and paid 

for by UHC Services, only to be fully denied reimbursement. Accordingly, because of UHC Services’ 

wrongful conduct, Plaintiff Endicott was denied the no-cost ACA preventive service to which she was 

entitled, resulting in an out-of-pocket expenditure of $255. 

Plaintiff Bishop

126. After the birth of her son on July 2, 2015, while still admitted in the hospital, Plaintiff 

Bishop experienced difficultly breastfeeding because her son was not latching properly. Initially she 

received lactation support from the hospital-based RN, BSN, IBCLC, Diba Tillery; however, when 

Plaintiff Bishop sought additional assistance later that day and the next day, Ms. Tillery was not 

working. Plaintiff Bishop tried to seek assistance from the available nurses, but the services rendered 

were ineffective. 

127. Soon after being discharged from the hospital, Plaintiff Bishop returned to the hospital 

to ensure that her son was gaining weight. Plaintiff Bishop learned that her son had actually lost 

weight which spurred her to request lactation services; however, Ms. Tillery was once again not 

available. The nurse on duty told Plaintiff Bishop that her son needed to be fed immediately, or that 

the newborn would have to be re-admitted to the hospital. Plaintiff Bishop tried to hand express milk, 

but the nurse said that was not sufficient and suggested that Plaintiff Bishop feed her son formula, 

which Plaintiff Bishop did to avoid having her son re-admitted to the hospital.

128. At home, Plaintiff Bishop resorted to using a combination of pumping, nursing and 

formula to feed and nourish her son. However, her son became ill from the formula. Plaintiff Bishop 

tried numerous brands, yet her son continued to cry for up to 10 hours a day. Eventually Plaintiff 

Bishop’s son was diagnosed with a dairy allergy and the only formula he could barely tolerate was a 

hypoallergenic formula that cost approximately $30 per can. 

129. At the same time, Plaintiff Bishop was suffering from postpartum depression that was 

only deepening as her milk production began depleting. In need of immediate professional support, 

Plaintiff Bishop accessed UHC Services’ online portal and tried to locate an in-network lactation 

provider, but UHC Services did not have any provider listed. 

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130. Desperate for help and in danger of her milk production ceasing, Plaintiff Bishop 

contacted Ms. Tillery, who agreed to see her on a private-patient basis because neither Plaintiff 

Bishop’s nor her son’s conditions warranted admission to the hospital. On August 5, 2015, Plaintiff 

Bishop paid $130 out-of-pocket for an in-office lactation consultation with the RN, BSN, IBCLC, who 

successfully developed a supplementary nursing system, including pumping as well as nursing, which 

re-established Plaintiff Bishop’s milk supply. By week 9 postpartum, Plaintiff Bishop’s son was 

nursing exclusively and all illness symptoms were resolved as a result of Plaintiff Bishop committing 

to a diary-free diet. 

131. Plaintiff Bishop submitted the lactation claim to UHC Services for coverage and 

reimbursement. In an EOB dated September 28, 2015, UHC Services processed and fully denied the 

claim for lactation services, which was listed as a “Preventive Med” service. The EOB stated, “This is 

not a reimbursable service. There may be a more appropriate CPT or HCPCS code that describes this 

service and/or the use of the modified or modifier combination is inappropriate.” 

132. Plaintiff Bishop submitted a written appeal as instructed by the EOB and Ms. Tillery, 

separately, sent a letter to UHC Services dated October 19, 2015, which outlined the treatment 

rendered, the issuance of nipple cream, and listed corresponding ICD-9 diagnosis codes. In response 

to her appeal, Plaintiff Bishop received another EOB dated October 30, 2015 fully denying the 

“Preventive Med” claim, again, and noting that, “[t]his claim was already reviewed and processed. If 

this is a corrected claim, the provider must submit and indicate it is a corrected claim . . .”. 

133. Plaintiff Bishop re-submitted the claim in accordance with the instructions contained on 

the October 30, 2015 EOB. Yet, this renewed attempt proved to be futile. Plaintiff Bishop received 

another EOB on November 11, 2015, which fully denied the lactation claim which was reflected on 

the EOB as “Special Medial” services and “Medical Supplies.” According to the EOB, the “Special 

Medical” services were denied for two distinct reasons: 

(1) “Payment for this service or supply is denied based on our reimbursement policy. This 

service was included in a service already reported or it is not paid separately. If you used a 

network provider, you don’t owe anything.” 

(2) “Payment for services is denied. We asked the member for more information and didn’t 

receive it.” 

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134. In addition, the EOB listed two distinct explanations for denying the “Medical 

Supplies”: 

(1) “Your plan does not cover this medical supply, prosthetic, orthotic appliance, or durable 

medical equipment, or the repair, modification or customization of any of these non-covered 

items.”

(2) “Payment for services is denied. We asked the member for more information and didn’t 

receive it.” 

135. After spending an estimated 20 hours trying to access timely Comprehensive Lactation 

Benefits and have her claim for lactation support processed and paid for by UHC Services, Plaintiff 

Bishop was fully denied any reimbursement. Accordingly, because of UHC Services’ wrongful 

conduct, Plaintiff Bishop was denied the no-cost ACA preventive service to which she was entitled, 

resulting in an out-of-pocket expenditure of $130. 

Plaintiff Barber

136. Immediately after the birth of her son in February 2016, Plaintiff Barber had problems 

breastfeeding and her son was losing weight quickly. In need of immediate professional support, 

Plaintiff Barber’s pediatrician recommended that she consult with Caroline Kerherve, IBCLC, a 

qualified, trained provider at Lactation and Postpartum Services LLC in San Francisco. 

137. Plaintiff Barber had two lactation consultations on February 19, 2016 and February 24, 

2016. Plaintiff Barber paid $345 for the first consultation and $245 for the second appointment, for a 

total out-of-pocket expenditure of $590. These visits with a qualified, trained provider of 

Comprehensive Lactation Benefits revealed that Plaintiff Barber’s son was unable to latch due to a 

tongue tie, a diagnosis which necessitated that Plaintiff Barber’s son undergo a surgical procedure to 

be able to breastfeed. 

138. Plaintiff Barber submitted a claim for the lactation consultations to UHC Insurance for 

coverage and reimbursement on April 5, 2016. Plaintiff Barber received an EOB dated April 29, 2016 

from UHC Insurance that denied both lactation consultation claims. The explanation provided was, 

“[y]our plan does not cover this non-medical service or personal item.” 

139. Plaintiff Barber submitted a written appeal in February 2017. On February 6, 2017, 

Plaintiff Barber received from UHC Insurance an acknowledgment of her appeal and, on February 9, 

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2017, Plaintiff Barber received a letter from UHC Insurance stating, “You asked us to look at this 

claim again. We reviewed the claim and determined it was processed correctly. This service is not 

covered by the health benefit plan.” 

140. Plaintiff Barber has spent approximately 7 hours attempting to access timely 

Comprehensive Lactation Benefits and to have her claim for lactation support and counseling 

processed and paid for by UHC Insurance. However, because of Defendants’ wrongful conduct, 

Plaintiff Barber was denied the no-cost ACA preventive service to which she was entitled, resulting in 

an out-of-pocket expenditure of $590. 

Plaintiff Carroll

141. Shortly after the birth of her daughter on August 25, 2015, Plaintiff Carroll and her 

daughter began experiencing difficulties breastfeeding. In need of immediate professional support, 

Plaintiff Carroll sought the assistance of Virginia Martin, CLC, a qualified, trained provider at A 

Nurtured Path, LLC. 

142. Plaintiff Carroll had two lactation consultations on September 16, 2015 and September 

19, 2015. Plaintiff Carroll paid $65 for the first consultation and $40 for the second appointment, for a 

total out-of-pocket expenditure of $105. Plaintiff Carroll submitted both claims to UMR for coverage 

and reimbursement. Plaintiff Carroll received an EOB dated November 17, 2015 for her September 

16 claim which stated that the charges were denied because the charges exceeded “the usual, 

reasonable and customary fees.” The claim was processed at the “Out of Network Level of Benefits” 

in which $12.30 constituted an “amount not payable” and $52.70 was applied to Plaintiff Carroll’s 

deductible; ultimately resulting in Plaintiff Carroll being responsible for the full $65. Plaintiff Carroll 

then received another EOB dated December 29, 2015 from UMR for her September 19 claim denying 

the claim in its entirety, stating “[t]his service is excluded by your health plan.” 

143. When Plaintiff Carroll contacted UMR about the denied claims, the UMR 

representative told her that the claims were applied to her out-of-network deductible. When Plaintiff 

Carroll inquired about the appeals process, the UMR representative told her that she could easily 

access the appeal form online. Plaintiff Carroll attempted to locate those forms online, but was unable 

to find them. 

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144. A few months later, Plaintiff Carroll and her daughter were still struggling with 

breastfeeding. In need of additional professional assistance, Plaintiff Carroll sought two more 

lactation consultations from Cara Munson, RD, IBCLC, on November 2, 2015 and November 14, 

2015. Plaintiff Carroll paid $125 for the first consultation and $50 for the second appointment, for a 

total out-of-pocket expenditure of $175. These visits with a qualified, trained provider of 

Comprehensive Lactation Benefits revealed that Plaintiff Carroll’s daughter was unable to latch due to 

a tongue tie, a diagnosis which necessitated that her daughter undergo a surgical procedure to be able 

to breastfeed. Dr. Jesse Witkoff, a pediatric dentist at A Wild Smile located in Denver, Colorado 

performed the surgery. 

145. Plaintiff Carroll submitted both the $525 claim for her daughter’s surgery and the $175 

claim for the lactation consultations to UMR for coverage and reimbursement. Plaintiff Carroll 

received an EOB from UMR dated December 15, 2015 that fully denied her daughter’s pediatric 

dentistry surgery. The explanation provided was, “[t]his service is excluded by your health plan.” 

Plaintiff Carroll then received another EOB dated December 29, 2015 from UMR denying both 

lactation consultation claims. The explanation provided was, once again, “[t]his service is excluded 

by your health plan.” 

146. Plaintiff Carroll estimates that she has spent approximately 6.5 hours attempting to 

access timely Comprehensive Lactation Benefits and to have her claims for lactation services 

processed and paid for by UMR. However, because of Defendants’ wrongful conduct, Plaintiff 

Carroll was denied the no-cost ACA preventive service to which she was entitled, resulting in an outof-pocket expenditure of $280 for lactation services. 

147. Based on Plaintiffs’ counsels’ investigation, the Plaintiffs’ experiences characterize the 

experience of numerous other women covered under UnitedHealth plans in a wide cross-section of the 

United States. Therefore, although Defendants operate a multi-tiered web of entities that provide 

health care coverage, it is apparent that the directives with respect to the handling of claims for 

breastfeeding support, supplies and counseling, including the failure to provide adequate or reasonable 

in-network providers for such services, emanate from a central UnitedHealth authority. 

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G. Defendants’ Conduct Violates the Non-Discrimination Provision of the ACA.

148. Section 1557(a) of the ACA contains a “nondiscrimination” provision that provides, in 

relevant part: 

[A]n individual shall not, on the ground prohibited under . . . title IX of the Education 

Amendments of 1972 (20 U.S.C. 1681 et seq.) . . . be excluded from participation in, 

be denied the benefits of, or be subjected to discrimination under, any health program 

or activity, any part of which is receiving Federal financial assistance, including 

credits, subsidies, or contracts of insurance, or under any program or activity that is 

administered by an Executive Agency or any entity established under this title (or 

amendments). The enforcement mechanisms provided for and available under ... title 

IX ... shall apply for purposes of violations of this subsection. 

42 U.S.C. § 18116(a). 

149. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, 

or disability in certain health programs and activities. 

150. The ACA nondiscrimination provision specifically prohibits discrimination on the basis 

of those grounds that are prohibited under other federal laws, including Title IX of the Education 

Amendments of 1972, 20 U.S.C. § 1681(a) (“Title IX”). 

151. The Office for Civil Rights (OCR), Office of the Secretary HHS, issued the final rule 

(81 FR 31375) implementing Section 1557 of the ACA (“Final Rule”), stating as follows: 

Comment: Many commenters requested that OCR clarify that all enforcement mechanisms 

available under the statutes listed in Section 1557 are available to each Section 1557 plaintiff, 

regardless of the plaintiff's protected class.... 

The commenters primarily rely on reasoning in Rumble v. Fairview Health Services, in 

which the U.S. District Court for the District of Minnesota discussed the standards to be 

applied to Section 1557 private right of action claims and stated: “It appears Congress 

intended to create a new, health-specific, anti-discrimination cause of action that is subject to 

a singular standard, regardless of plaintiff's protected class status. Reading Section 1557 

otherwise would lead to an illogical result, as different enforcement mechanisms and 

standards would apply to a Section 1557 plaintiff depending on whether plaintiff's claim is 

based on her race, sex, age, or disability. For example, it would not make sense for a Section 

1557 plaintiff claiming race discrimination to be barred from bringing a claim using a 

disparate impact theory but then allow a Section 1557 plaintiff alleging disability 

discrimination to do so.”  

Similarly, many commenters requested that the regulation clarify that a private right of action 

exists for disparate impact claims, arguing, like commenters discussed above, that all 

enforcement mechanisms should be available to all Section 1557 complainants. A few 

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commenters requested that the availability of a private right of action be addressed in the 

final rule itself, rather than in the preamble. 

Response: OCR interprets Section 1557 as authorizing a private right of action for claims 

of disparate impact discrimination on the basis of any of the criteria enumerated in the 

legislation.

81 Fed. Reg. 31375, 31439 (emphasis added). 

152. Accordingly, the Final Rule confirms that a private right of action exists for claims of 

disparate impact discrimination on the basis of any of the criteria enumerated in the ACA (45 CFR 92; 

81 FR 31375). 

153. Title IX prohibits discrimination on the basis of sex. Plaintiffs and the members of the 

Classes are being excluded from participation in and being denied the benefits of the enumerated 

preventive health benefit for breastfeeding women, and being subjected to discrimination by 

Defendants (in Defendants’ capacity as insurers and administrators of insurance plans) on the basis of 

sex.

154. In addition, as confirmed by the Final Rule, Title IX prohibits discrimination on the 

basis of sex, and “the definition of ‘on the basis of sex’ established by [the Final Rule] is based upon 

existing regulation and previous Federal agencies’ and courts’ interpretations that discrimination on 

the basis of sex includes discrimination on the basis of pregnancy, childbirth, ....” 81 Fed. Reg. at 

31388. 

155. Furthermore, as confirmed by the Final Rule, the term, “[o]n the basis of sex includes, 

but is not limited to, discrimination on the basis of pregnancy, false pregnancy, [ ] or recovery 

therefrom, childbirth or related medical conditions....” 81 Fed. Reg. at 31467; see also, id. at 31434 

(“on the basis of sex” under Section 1557 includes “discrimination on the basis of pregnancy, false 

pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical 

conditions.”); see 45 CFR 86.40(b) (prohibiting discrimination on the basis of “pregnancy, childbirth, 

false pregnancy...”). 

156. The anti-discrimination provision, as well as other provisions of the ACA recognize, as 

stated by OCR in the Final Rule, “the difficulty many pregnant people experience in accessing certain 

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health care services.” See 81 Fed. Reg. at 31428 (“In response to this concern, OCR is clarifying here 

that the equal program access provision under § 92.206 is simply a specific application of the more 

general prohibition of discrimination under § 92.101(a). Under both provisions, denial of program 

access on any of the prohibited bases, including pregnancy or related medical conditions, is 

prohibited.”) 

157. Moreover, lactation is a medical condition related to pregnancy and childbirth. The 

term “medical condition” includes any physiological condition. See, e.g., Joseph Segen, McGraw-Hill 

Concise Dictionary of Modern Medicine 405 (2006); The American Heritage Medical Dictionary 

(2007); Miller-Keane Encyclopedia & Dictionary of Medicine, Nursing, and Allied Health (7th ed. 

2003); Mosby's Medical Dictionary (8th ed. 2009). Lactation, the postpartum production of milk, is a 

physiological process, triggered by hormones, of secreting milk from mammary glands and is directly 

caused by hormonal changes associated with pregnancy and childbirth. See, e.g., Arthur C. Guyton, 

Textbook of Med. Physiology 1039-40 (2006) (describing physiological processes by which milk 

production occurs), cited at https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm; Collins 

English Dictionary—Complete and Unabridged (HarperCollins Pub. 2003), available at: 

http://www.thefreedictionary.com/lactation (defining lactation as “the secretion of milk from the 

mammary glands after parturition”). Lactation is a physiological result of being pregnant and bearing a 

child, or induced lactation for the benefit of an adopted child or child borne through a surrogate. 

158. Further, to continue producing an adequate milk supply and to avoid painful 

complications associated with delays in expressing milk, a nursing mother will typically need to 

breastfeed or express breast milk using a pump two or three times over eight hours, thus, when facing 

lactation issues, breastfeeding women must be able to not only access the necessary care but do so 

promptly, to avoid further complications or even the inability to continue breastfeeding. See, e.g.,

Overcoming Breastfeeding Problems, U.S. NAT’L LIBRARY OF 

MED., http://www.nlm.nih.gov/medlineplus/ency/article/002452.htm (last visited 9/4/2017). 

159. Defendants’ practice with respect to coverage for preventive health benefits and not 

identifying in-network providers of Comprehensive Lactation Benefits, singles out lactating and 

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breastfeeding insured women for less favorable treatment with respect to ACA mandated preventive 

health benefits. 

160. Because only women lactate and breastfeed, and because lactation is a pregnancyrelated medical condition, Defendants’ misconduct affects only women and therefore is facially sexbased. 

161. Less favorable treatment of a lactating insured, specifically in failing to give access to 

in-network providers of Comprehensive Lactation Benefits, is unlawful sex discrimination. 

162. By their conduct, Defendants are providing disparate levels of ACA mandated 

preventive services to breastfeeding and lactating women. Defendants’ seemingly facially neutral 

policies of stating that they purportedly have in-network lactation consultants but not identifying such 

in-network providers, not giving lactating and breastfeeding insureds access to such in-network 

providers for this preventive service, and failing to provide information and access in a timely manner 

(which is critical for lactation and breastfeeding), has a disparate impact on breastfeeding and lactating 

insured women. 

163. Defendants’ failures with respect to providing breastfeeding women their preventive 

health benefits (including their refusal to establish processes to provide timely identification of innetwork trained providers of Comprehensive Lactation Benefits)15, results in breastfeeding women 

being excluded from participation in and being denied the benefits of the enumerated preventive health 

benefit for breastfeeding women. 

 

15 PHS Act section 2706(a), as added by the ACA, and as incorporated into section 715(a)(1) of 

ERISA and section 9815(a)(1) of the Internal Revenue Code, states that a “group health plan and a 

health insurance issuer offering group or individual health insurance coverage shall not discriminate 

with respect to participation under the plan or coverage against any health care provider who is acting 

within the scope of that provider’s license or certification under applicable state law.” Section 2706(a) 

is applicable to non-grandfathered group health plans and health insurance issuers offering group or 

individual health insurance coverage for plan years (in the individual market, policy years) beginning 

on or after January 1, 2014. From the standpoint of providers of lactation counseling, Defendants’ 

conduct runs afoul of Section 2706(a), at minimum by discriminating against those who are licensed 

providers who are also IBCLCs or lactation consultants, and against IBCLCs who are state licensed 

(currently in Georgia and Rhode Island), by failing to identify them as in-network providers to insured 

breastfeeding women.

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164. And, moreover, Defendants’ policies, and lack thereof, impose a significant burden on 

breastfeeding and lactating women – a protected class. Defendants’ practices are unlawful and 

discriminatory, and can be so irrespective of motivation or intent. 

165. By their conduct alleged herein, Defendants are providing disparate levels of health 

benefits, and specifically ACA-mandated preventive services, for women. The challenged practice, of 

not, at a minimum, identifying and timely identifying in-network providers of Comprehensive 

Lactation Benefits has a substantial disparate impact on women. 

166. Defendants are subject to Section 18116 because Defendants are health programs and 

activities which are “receiving Federal financial assistance, including credits, subsidies, or contracts of 

insurance” may not discriminate on the basis of sex. See 42 U.S.C. § 18116(a) (incorporating Title IX 

by reference). 

167. Defendants are health programs and activities because they provide and administer 

health insurance and plans. 

168. Defendants are receiving Federal financial assistance, including credits, subsidies and 

contracts of insurance, at least in the following ways. 

169. UnitedHealth Group serves as a plan sponsor offering Medicare Part D prescription 

drug insurance coverage under contracts with CMS. Under the Medicare Part D program, 

UnitedHealth Group receives the following payments from CMS:

(A) Low-Income Premium Subsidy. For qualifying low-income members, CMS pays 

some or all of the member’s monthly premiums to UnitedHealth Group on the 

member’s behalf. 

(B) Catastrophic Reinsurance Subsidy. CMS pays UnitedHealth Group a cost 

reimbursement estimate monthly to fund the CMS obligation to pay approximately 

80% of the costs incurred by individual members in excess of the individual annual 

out-of-pocket maximum. 

(C) Low-Income Member Cost Sharing Subsidy. For qualifying low-income 

members, CMS pays on the member’s behalf some or all of a member’s cost sharing 

amounts, such as deductibles and coinsurance. 

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170. Defendants also provide health plans through the ACA Exchanges (see ¶31 supra) and 

thereby receive Federal financial assistance in the form of the direct and/or indirect subsidies, 

including the “premium tax credit,” provided for under the ACA for qualified individuals who 

purchase health insurance from Defendants through the Exchange. A premium tax credit is a 

refundable tax credit designed to help eligible individuals and families with low or moderate income 

afford health insurance purchased through the Exchange. When enrolled in an Exchange plan, the 

insured can choose to have the Exchange compute an estimated credit that is paid to the insurance 

company to lower what the insured pays for monthly premiums (advance payments of the premium 

tax credit, or APTC). See http://fas.org/sgp/crs/misc/R41137.pdf (last visited 1/11/2017). On 

information and belief, Defendants have and will receive such credits. 

171. In addition to the premium credits, the ACA establishes subsidies that are applicable to 

cost-sharing expenses. The HHS Secretary will provide full reimbursements to exchange plans that 

provide cost-sharing subsidies. It was estimated in early 2014, that such cost-sharing subsidies would 

increase federal outlays from FY2015 through FY2024 by $167 billion. See

http://fas.org/sgp/crs/misc/R41137.pdf (last visited 1/11/2017). On information and belief, Defendants 

have and will receive such credits. 

172. Furthermore, the federal government provides funds, grants and/or other financial 

assistance to Defendants and their segments and operating businesses. A review of the federalgovernment-run www.USASpending.gov – a website mandated by the Federal Funding 

Accountability and Transparency Act of 2006 (S. 2590) to give the American public access to 

information on how their tax dollars are spent – indicates as follows: 

(A)UnitedHealth Military & Veterans Services, LLC has received over $9 Billion 

from 2012 through present from the federal government (DoD)16: 

 

16 See https://www.usaspending.gov/Pages/TextView.aspx?data=RecipientFundingTrends& 

dunsnumber=826295136&fiscalyear=2016; https://www.usaspending.gov/transparency/Pages/ 

RecipientProfile.aspx?DUNSNumber=826295136&FiscalYear=2016 (last visited 1/9/2017). 

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Fiscal Year Award Type Funds Awarded Number of Transactions

2012 Contracts $11,475,879 52

2013 Contracts $1,026,605,169 84

2014 Contracts $2,970,075,676 124

2015 Contracts $2,505,344,547 124

2016 Contracts $2,723,068,419 194

2017 Contracts $260,491,446 2

(B) United Healthcare Services, Inc. has been paid $1,120,592 to date for FY 2017 

by the Department of Treasury.17 

173. As alleged in ¶¶31-35 supra, Defendants have entered into agreements or contracts of 

insurance with the federal government.

174. Defendants violated and continue to violate Section 1557(a) of the ACA on the basis of 

sex discrimination because, as set forth herein, Defendants’ refusal and failure to comply with the 

ACA’s provisions with respect to preventive women’s care for Comprehensive Lactation Benefits has 

a disparate discriminatory impact on breastfeeding and lactating women. 

175. By violating the women’s preventive services requirements under the ACA, plan 

participants have been and continue to be denied mandated access to coverage for breastfeeding 

benefits. Defendants’ denial of benefits and unlawful cost sharing has – in addition to violating the 

ACA – unjustly enriched Defendants and deprived thousands of women of their mandated lactation 

benefits. If Defendants’ unlawful and discriminatory conduct is not foreclosed, many more mothers 

will be wrongfully denied the benefits they are entitled to receive under the ACA. 

H. Defendants’ Status as, and Duties of, ERISA Fiduciaries.

176. ERISA fiduciaries include not only parties explicitly named as fiduciaries in the 

governing plan documents or those to whom there has been a formal delegation of fiduciary 

responsibility, but also any other parties who, in fact, performs fiduciary functions. Under ERISA, a 

person is a fiduciary “to the extent . . . . he exercises any discretionary authority or discretionary 

control respecting management of such plan or exercises any authority or control respecting 

 

17 https://www.usaspending.gov/transparency/Pages/RecipientProfile.aspx?DUNSNumber=071 

778674&FiscalYear=2017 (last visited 1/2/2017). 

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management or disposition of its assets. . . .,” ERISA § 3(21)(A)(i), 29 U.S.C. § 1002(21)(A)(i), or “he 

has any discretionary authority or discretionary responsibility in the administration of such plan.” 

ERISA § 3(21)(A)(iii), 29 U.S.C. § 1002(21)(A)(iii). Thus, if a Defendant exercises discretionary 

authority or control in managing or administering the plan, or, if it exercises any authority or control 

(discretionary or not) with respect to management or disposition of plan assets, it is an ERISA 

fiduciary. 

177. At all relevant times, Defendants have been fiduciaries of the Defendants’ health plans 

because: (a) they had the authority with respect to the Defendants’ health plans’ compliance with the 

ACA requirements; (b) they exercised discretionary authority and/or discretionary control with respect 

to their compliance with the ACA requirements for their health plans; (c) they had the authority to 

establish a network of providers for Comprehensive Lactation Benefits for their health plans; (d) they 

exercised discretionary authority and/or discretionary control with regard to establishing a network of 

providers for Comprehensive Lactation Benefits for their health plans; (e) they had the authority 

and/or discretionary responsibility over the management and administration of preventive services as 

required by the ACA for their health plans; and/or, (f) they exercised discretion over provider lists for 

their plans with respect to providers of Comprehensive Lactation Benefits, and, on information and 

belief, failed to establish a network of providers in order to maximize their profits and minimize their 

costs of coverage for ACA women’s preventive services. 

178. ERISA §§ 404(a)(1)(A) and (B), 29 U.S.C. §§ 1104(a)(1)(A) and (B), provide, in 

pertinent part, that a fiduciary shall discharge its duties with respect to a plan solely in the interest of 

the participants and beneficiaries, for the exclusive purpose of providing benefits to participants and 

their beneficiaries, and with the care, skill, prudence, and diligence under the circumstances then 

prevailing that a prudent person acting in a like capacity and familiar with such matters would use in 

the conduct of an enterprise of a like character and with like aims. These fiduciary duties under ERISA 

§§ 404(a)(1), 404(a)(1)(A), and (B) are referred to as the duties of loyalty and prudence and are the 

“highest known to the law.” Donovan v. Bierwirth, 680 F.2d 263, 272 n.8 (2d Cir. 1982). 

179. In addition, a fiduciary that appoints another person to fulfill all or part of its duties, by 

formal or informal hiring, subcontracting, or delegation, assumes the duty to monitor that appointee to 

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protect the interests of the ERISA plans and their participants. An appointing fiduciary must take 

prudent and reasonable action to determine whether the appointees are fulfilling their fiduciary 

obligations. 

180. ERISA also holds fiduciaries liable for the misconduct of co-fiduciaries. ERISA § 

405(a), 29 U.S.C. § 1105(a). Co-fiduciary liability is an important part of ERISA’s regulation of 

fiduciary responsibility. Because ERISA permits the fractionalization of the fiduciary duty, there may 

be, as in this case, more than one ERISA fiduciary involved in a given issue. Even if a fiduciary 

merely knows of a breach with which it had no connection, it must take steps to remedy that breach. 

See 1974 U.S.C.C.A.N. 5038, 1974 WL 11542, at 5080 (“[I]f a fiduciary knows that another fiduciary 

of the plan has committed a breach, and the first fiduciary knows that this is a breach, the first 

fiduciary must take reasonable steps under the circumstances to remedy the breach. . . .[T]he most 

appropriate steps in the circumstances may be to notify the plan sponsor of the breach, or to proceed to 

an appropriate Federal court for instructions, or bring the matter to the attention of the Secretary of 

Labor. The proper remedy is to be determined by the facts and circumstances of the particular case, 

and it may be affected by the relationship of the fiduciary to the plan and to the co- fiduciary, the 

duties and responsibilities of the fiduciary in question, and the nature of the breach.”). 

181. ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), authorizes individual participants and 

fiduciaries to bring suit “(A) to enjoin any act or practice which violates any provision of this 

subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress 

such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” The 

remedies set forth in § 502(a)(3) include remedies for breaches of the fiduciary duties set forth in 

ERISA § 404, 29 U.S.C. §1104.

182. In addition, Plaintiffs and the members of the Classes were not required to exhaust their 

administrative remedies and any pursuit, or further pursuit, of any administrative remedies would be 

futile. Futility here is clear because pursuit of administrative remedies could not address Defendants’ 

failure to establish in-network providers of Comprehensive Lactation Benefits nationwide, and to 

provide, cover, and administer Comprehensive Lactation Benefits as a no-cost preventive service in 

accordance with the ACA. Defendants’ health plans fail to comply with the provisions of the ACA 

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with respect to preventive services, the redress for which could not be accomplished by pursuit of 

administrative remedies. Since the action concerns Defendants’ violations with respect to the 

fundamental constructs of Defendants’ plans and networks, and does not evoke Defendants’ discretion 

with respect to the payment of an individual claim, any effort to exhaust administrative remedies 

would be futile and is not required as a matter of law. 

183. Plaintiffs therefore bring this action under the authority of ERISA § 502(a)(3), 29 

U.S.C. § 1132(a)(3), for appropriate equitable relief from Defendants as fiduciaries (and, in the 

alternative, from Defendants as knowing participants in breaches of any of ERISA’s fiduciary 

responsibility provisions), including, without limitation, injunctive relief and, as available under 

applicable law, imposition of a constructive trust, equitable surcharge, and restitution. 

CLASS ACTION ALLEGATIONS

184. Plaintiffs bring this action on behalf of themselves and the proposed Classes pursuant 

to FED. R. CIV. P. 23(a), 23(b)(2), 23(b)(2), and/or 23(b)(3). Specifically, Plaintiffs seek to represent 

the following Classes: 

ACA Class: All persons who, on or after August 1, 2012, are or were 

participants in or beneficiaries of any non-grandfathered health plan and 

non-federal employee health plan, sold, underwritten or administered by 

Defendants in their capacity as insurer or administrator, who did not 

receive full coverage and/or reimbursement for Comprehensive Lactation 

Benefits. 

Claims Review Class: All participants and beneficiaries in one or more of 

the ERISA employee health benefit plans administered by Defendants in 

the United States, which provide benefits for healthcare services and for 

which claims administration duties are delegated to one or more of the 

Defendants. 

Lactation Services Class: All participants and beneficiaries in one or 

more of the ERISA employee health benefit plans administered by 

Defendants in the United States for which Defendants fail and refuse to 

provide payment or reimbursement for Comprehensive Lactation Benefits 

without cost to such participants and beneficiaries. 

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185. Excluded from the Classes are Defendants, their subsidiaries or affiliate companies, 

their legal representatives, assigns, successors, and employees. 

186. Numerosity/Impracticability of Joinder: The members of the Classes are so numerous 

that joinder of all members is impracticable. The exact number of the members of the Classes is 

unknown to Plaintiffs at this time, and can only be ascertained through appropriate discovery, but 

Plaintiffs are informed and believe that there are at least thousands of members of the Classes 

throughout the United States. 

187. Commonality and Predominance: This action is properly brought as a class action 

because of the existence of questions of law and fact common to the Classes. Common questions of 

law and fact include, but are not limited to, the following: 

(a) For the ACA Class, whether Defendants utilize a system that administers claims 

from participants and beneficiaries of any non-grandfathered health plan and nonfederal employee health plan in contravention of the express terms and conditions 

of the ACA and plans’ documents by failing to provide timely and substantive 

responses to requests for out-of-network benefits and/or appeals to denials of 

requests for out-of-network benefits; 

(b) For the ACA Class, whether Defendants violate the express terms and conditions 

of the ACA and plans’ documents by failing to offer either in-network lactation 

service providers within a reasonable distance of the plan participants and/or 

beneficiaries or full coverage of out-of-network lactation service providers for 

plan participants and/or beneficiaries who do not have in-network lactation 

service providers within a reasonable distance; 

(c) For the Claims Review Class, whether Defendants utilize a system that 

administers claims from ERISA plan participants and beneficiaries in 

contravention of the express terms and conditions of the ERISA plans’ documents 

by failing to provide timely and substantive responses to requests for out-ofnetwork benefits and/or appeals to denials of requests for out-of-network benefits; 

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(d) For the Claims Review Class, whether Defendants utilize a system that 

administers claims from ERISA plan participants and beneficiaries that violates 

ERISA by failing to provide timely and substantive responses to requests for outof-network benefits and/or appeals to denials of requests for out-of-Network 

benefits; 

(e) For the Lactation Services Class, whether Defendants violate the express terms 

and conditions of the ERISA plans’ documents by failing to provide either innetwork lactation service providers within a reasonable distance of the plan 

participants and/or beneficiaries or full coverage of out-of-network lactation 

service providers for plan participants and/or beneficiaries who do not have innetwork lactation service providers within a reasonable distance; 

(f) For the Lactation Services Class, whether Defendants breaching their fiduciary 

duties under ERISA by failing to provide either in-network lactation service 

providers within a reasonable distance of the plan participants and/or beneficiaries 

or full coverage of out-of-network lactation service providers for plan participants 

and/or beneficiaries who do not have in-network lactation service providers 

within a reasonable distance; 

(g) Whether the ERISA plans and/or their beneficiaries and participants are entitled 

to declaratory and injunctive relief; 

(h) Whether the ERISA plans and/or their beneficiaries and participants are entitled 

to an accounting, disgorgement, restitution, and/or other appropriate equitable 

relief; 

(i) Whether Defendants are violating the ACA’s mandate of providing access to and 

coverage for Comprehensive Lactation Benefits to the members of the Lactation 

Services Class and the ACA Class; 

(j) Whether Defendants unlawfully discriminate on the basis of sex in violation of 

the ACA by virtue of the conduct described herein; 

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(k) Whether Plaintiffs and the members of the Lactation Services Class and the ACA 

Class are entitled to a declaration regarding their rights under the ACA; 

(l) Whether Plaintiffs and the members of the Lactation Services Class and the ACA 

Class are entitled to an Order enjoining Defendants from violating the ACA 

requirements related to Comprehensive Lactation Benefits and compelling 

compliance with the ACA; and 

(m)Whether Defendants have been unjustly enriched (and if so, in what amount). 

188. Typicality: Plaintiffs’ claims are typical of the claims of the members of the Classes 

because, inter alia, Plaintiffs and all members of the Classes have been injured and damaged in the 

same way as a result of Defendants’ failure to provide access to coverage for Comprehensive 

Lactation Benefits; Plaintiffs Condry, Hoy, Endicott, Bishop, and Carroll, and all members of the 

Claims Review Class, have been injured and damaged in the same way as a result of Defendants’ 

systematic process for handling claims and appeals for out-of-network benefits; and, Plaintiffs Condry, 

Hoy, Endicott, Bishop, and Barber, and all members of the Lactation Services Class, have been injured 

and damaged in the same way as a result of Defendants’ refusal to provide either in-network lactation 

service providers within a reasonable distance of the plan participants and/or beneficiaries or full 

coverage of out-of-network lactation service providers for plan participants and/or beneficiaries who 

do not have in-network lactation service providers within a reasonable distance. 

189. Adequacy of Representation: Plaintiffs will fairly and adequately protect the interests 

of the members of the Classes because their interests are aligned and do not conflict with the interests 

of the members of the Classes they seek to represent. Plaintiffs have retained highly competent 

counsel who are experienced in class action litigation, including ERISA litigation, and possess the 

requisite resources and ability to vigorously prosecute this case as a class action. The interests of the 

Classes will be fairly and adequately protected by Plaintiffs and their Counsel. 

190. Superiority: A collective action is superior to all other available means for the fair and 

efficient adjudication of this controversy. Most of the members of the Classes would not be likely to 

file individual lawsuits because they lack adequate financial resources, access to attorneys or 

knowledge of their claims, because the damages suffered by individual members of the Classes may 

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be relatively small, and because the expense and burden of individual litigation would make it 

impossible for such persons to individually to redress the wrongs done to them. Individualized 

litigation presents a potential for inconsistent or contradictory judgments, and increases the delay and 

expense to all parties and to the court system presented by the complex legal and factual issues raised 

by Defendants’ conduct. Moreover, Plaintiffs’ claims for equitable relief are based on actions, and 

refusals to act, by Defendants that are generally applicable to Plaintiffs and all other members of the 

Classes, making final injunctive relief or other relief appropriate with respect to the Classes as a 

whole. Class treatment is also appropriate because Defendants engaged in a uniform and common 

practice, and all Class Members have the same legal right to, and interest in, redress for relief 

associated with violations of the ACA’s lactation coverage requirements. 

191. Plaintiffs know of no difficulty which will be encountered in the management of this 

litigation that would preclude its maintenance as a class action. 

EXHAUSTION/FUTILITY OF ADMINISTRATIVE REMEDIES

192. Also as detailed above, Plaintiff Condry’s claim for her first lactation consultation was 

processed and completely denied as “not a reimbursable service.” Plaintiff Condry did not submit 

claims for the second or third lactation consultation, nor did she take further action by appealing the 

first denied claim because she believed it would have been futile. 

193. As detailed above, Plaintiff Hoy has spent a significant amount of time and resources 

attempting to resolve her benefit disputes with Defendants, and complied with the appeals process set 

forth in the Santander Plan. Notwithstanding her efforts, including her appeal to the Pennsylvania 

Insurance Department, Defendants have either ignored or “lost” Plaintiff Hoy’s repeated written 

appeals, and have failed to respond substantively to Plaintiff Hoy’s repeated written appeals. 

Accordingly, Plaintiff Hoy has exhausted the administrative remedies available to her and/or further 

pursuit of the administrative remedies would be futile. 

194. As detailed above, despite Plaintiff Endicott’s attempts to resolve her benefit disputes 

with Defendants, and her appeal to the State of Connecticut Insurance Department, Plaintiff Endicott’s 

claims for Comprehensive Lactation Services were erroneously applied to her out-of-network 

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deductible. Accordingly, Plaintiff Endicott has exhausted the administrative remedies available to her 

and/or further pursuit of the administrative remedies would be futile. 

195. As detailed above, Plaintiff Bishop repeatedly attempted to comply with Defendants’ 

appeals process in an attempt to obtain coverage for her lactation benefits. Yet, Plaintiff Bishop’s 

investment of time and energy resulted in Defendants fully denying the claim and categorizing the 

service as, “not a reimbursable service.” Accordingly, Plaintiff Bishop has exhausted the 

administrative remedies available to her and/or further pursuit of the administrative remedies would be 

futile. 

196. Also as detailed above, despite her attempt to appeal Defendants’ rejection of her 

claim, Plaintiff Barber’s claim was processed and completely denied as “not covered by the health 

benefit plan.” Accordingly, Plaintiff Barber has exhausted the administrative remedies available to her 

and/or further pursuit of the administrative remedies would be futile. 

197. Also as detailed above, Plaintiff Carroll’s claims for lactation benefits were erroneously 

processed as not a covered service and/or applied to her out-of-network deductible, resulting in no 

reimbursement. Plaintiff Carroll attempted to file an appeal, but was unable to successfully locate the 

form online. After additional claim denials, Plaintiff Carroll did not take any further action because 

she believed it would have been futile. 

198. Futility is also particularly clear since Plaintiffs have sufficiently alleged breaches of 

fiduciary duty by Defendants, and the existence of an inherent conflict of interest between Defendants’ 

obligation as fiduciaries for ERISA plan participants and their business incentives, as alleged above. 

199. Plaintiffs allege that Defendants fail to provide either in-network lactation service 

providers within a reasonable distance of the plan participants and/or beneficiaries, or full coverage of 

out-of-network lactation service providers for plan participants and/or beneficiaries who do not have 

in-network lactation service providers within a reasonable distance. Since Plaintiffs are challenging 

systematic processes, rather than an exercise of discretion with respect to an individual claim, any 

further effort to exhaust administrative remedies would be a futile act that is not required as a matter of 

law.

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200. Moreover, Plaintiffs Condry, Hoy, Endicott, Bishop, and Barber allege that, contrary to 

the plans’ documents and ERISA, Defendants use an administrative system that fails to provide timely 

responses to requests for out-of-network benefits and/or appeals to denials of requests for out-ofnetwork coverage, which is another systematic process rather than an exercise of discretion with 

respect to an individual claim. As such, any further effort to exhaust administrative remedies in this 

regard would be a futile act that is not required as a matter of law. 

COUNT I 

Declaratory and Injunctive Relief for UnitedHealth’s Breaches of Fiduciary Duty 

in Violation of 29 U.S.C. §§ 1104(a)(1)(A)(I), 1104(a)(1)(B), and 1104(a)(1)(D), 

Violation of 29 U.S.C. § 1133, and For Other Appropriate Equitable Relief 

(On Behalf of the Claims Review Class) 

201. Plaintiffs Condry, Hoy, Endicott, Bishop, and Barber re-allege and incorporate the 

preceding paragraphs as if fully set forth herein. 

202. Pursuant to 29 U.S.C. § 1132(a), Plaintiffs Condry, Hoy, Endicott, Bishop, and Barber 

bring this Count individually and on behalf of the Claims Review Class under ERISA, 29 U.S.C. § 

1101, et seq. By having been given and/or assumed discretionary authority and responsibilities for 

administering healthcare benefits under employee benefit plans, Defendants are fiduciaries as defined 

in 29 U.S.C. §§ 1002(21)(A), 1102(a)(2). 

203. As the plans’ fiduciaries, Defendants are obligated to discharge their duties “solely in

the interest of the participants and beneficiaries” and exclusively for the purpose of providing and 

administering benefits to plan participants and beneficiaries. 29 U.S.C. §§ 1104(a)(1) and

1104(a)(1)(A)(I). 

204. In carrying out these fiduciary duties, Defendants are obligated to exercise ordinary 

care and must seek to administer plan benefits in strict accordance with the terms of the 

underlying plan documents. 29 U.S.C. §§ 1104(a)(1)(B) and 1104(a)(1)(D). 

205. In addition, ERISA § 503, 29 U.S.C. 1133, requires every ERISA plan to provide 

adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has 

been denied, setting forth the specific reasons for such denial, written in a manner calculated to be 

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understood by the participant, and afford a reasonable opportunity to any participant whose claim for 

benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision 

denying the claim. 

206. By utilizing a system when administering claims from ERISA plan participants and 

beneficiaries that fails to provide timely and substantive responses to requests for out-of-network 

benefits and/or appeals to denials of requests for out-of-network benefits, Defendants have breached 

their fiduciary duties to: (1) discharge their duties “solely in the interest of the participants and 

beneficiaries” and exclusively for the purpose of providing and administering benefits to plan 

participants and beneficiaries; (2) exercise ordinary care; and/or (3) administer the plans’ benefits in 

strict accordance with the terms of the underlying plan documents. 

207. By utilizing a system when administering claims from ERISA plan participants and 

beneficiaries that fails to provide timely and substantive responses to requests for out-of-network 

benefits and/or appeals to denials of requests for out-of-network benefits, Defendants have violated 

ERISA 503, 29 U.S.C. § 1133. 

COUNT II 

Declaratory and Injunctive Relief for UnitedHealth’s Breaches of Fiduciary Duty 

in Violation of 29 U.S.C. §§ 1104(a)(1)(A)(I), 1104(a)(1)(B), and 1104(a)(1)(D) 

and for Other Appropriate Equitable Relief 

(On Behalf of the Lactation Services Class) 

208. Plaintiffs Condry, Hoy, Endicott, Bishop, and Barber re-allege and incorporate the 

preceding paragraphs as if fully set forth herein. 

209. Pursuant to 29 U.S.C. 1132(a), Plaintiffs bring this Count individually and on behalf of 

the Lactation Services Class under ERISA, 29 U.S.C. §1101, et seq. By having been given and/or 

assumed discretionary authority and responsibilities for administering healthcare benefits under 

employee benefit plans, Defendants are fiduciaries as defined in 29 U.S.C. §1102(21)(A). 

210. As the plans’ fiduciaries, Defendants are obligated to discharge their duties “solely in

the interest of the participants and beneficiaries” and exclusively for the purpose of providing and 

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administering benefits to plan participants and beneficiaries. 29 U.S.C. §§ 1104(a)(1) and

1104(a)(1)(A)(I). 

211. In carrying out these fiduciary duties, Defendants are obligated to exercise ordinary 

care and must seek to administer plan benefits in strict accordance with the terms of the 

underlying plan documents. 29 U.S.C. §§ 1104(a)(1)(B) and 1104(a)(1)(D). 

212. By failing to provide either in-network lactation service providers within a reasonable 

distance of the plan participants and/or beneficiaries or full coverage of out-of-network lactation 

service providers for plan participants and/or beneficiaries who do not have in-network lactation 

service providers within a reasonable distance, Defendants have breached their fiduciary duty to 

discharge their duties “solely in the interest of the participants and beneficiaries,” and exclusively for 

the purpose of providing and administering benefits to plan participants and beneficiaries, exercise 

ordinary care, and/or administer the plans’ benefits in strict accordance with the terms of the 

underlying plan documents. 

COUNT III 

For Co-Fiduciary Breach and Liability for Knowing Breach of Trust 

(On Behalf Of Both ERISA Classes) 

213. Plaintiffs Condry, Hoy, Endicott, Bishop, and Barber re-allege and incorporate the 

preceding paragraphs as if fully set forth herein. 

214. As Defendants are fiduciaries under ERISA, they are liable under ERISA § 405(a) for 

each other’s violations of ERISA. 

215. Under ERISA § 405(a), 29 U.S.C. § 1105(a), a fiduciary with respect to a plan shall be 

liable for a breach of fiduciary responsibility of another fiduciary with respect to the same plan in the 

following circumstances: 

a. if he participates knowingly in, or knowingly undertakes to conceal, an act or omission of 

such other fiduciary, knowing such act or omission is a breach; 

b. if, by his failure to comply with ERISA § 404(a)(1) in the administration of his specific 

responsibilities which give rise to his status as a fiduciary, he has enabled such other 

fiduciary to commit a breach; or 

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c. if he has knowledge of a breach by such other fiduciary, unless he makes reasonable 

efforts under the circumstances to remedy the breach. 

ERISA §§ 405(a)(1)-(3), 29 U.S.C. §§ 1105(a)(1)-(3). 

216. Each Defendant knowingly participated in and enabled the other Defendants’ breaches 

of fiduciary duty by allowing Defendants to, as alleged herein, provide and administer health plans 

that were not in compliance with the preventive services provisions of the ACA with respect to 

Comprehensive Lactation Benefits thereby causing Plaintiffs and members of the Classes to 

wrongfully pay for Comprehensive Lactation Benefits and/or to forego Comprehensive Lactation 

Benefits, and by failing to monitor Defendants’ compliance with the ACA and plan documents. 

217. Defendants failed to fulfill their ongoing and continuing duty to determine whether 

their health plans were being established and administered in accordance with the ACA, and in the 

best interests of Plaintiffs and the members of the Classes.

218. Each Defendant knew that each of the other Defendants provided and administered 

health plans that were not in compliance with the preventive services provisions of the ACA with 

respect to Comprehensive Lactation Benefits and each Defendant failed to make reasonable efforts 

under the circumstances to remedy the breach of fiduciary duty. 

219. Co-fiduciary liability is joint and several under ERISA, and thus Defendants are jointly 

and severally liable to Plaintiffs and the members of the Classes for the others’ breaches of ERISA’s 

fiduciary responsibility provisions. 

220. In the alternative, to the extent Defendants are not deemed fiduciaries or co-fiduciaries 

under ERISA, Defendants are liable to Plaintiffs and the Classes for all equitable relief as nonfiduciaries that knowingly participated in a breach of trust. 

COUNT IV 

Discrimination in Violation of Section 1557(a), 42 U.S.C. § 18116(a), 

of the Patient Protection and Affordable Care Act 

Against Defendants 

(On Behalf of the ACA Class) 

221. Plaintiffs re-allege and incorporate the preceding paragraphs as if fully set forth herein. 

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222. Section 1557(a) of the ACA contains a “nondiscrimination” provision that provides, in 

relevant part: 

[A]n individual shall not, on the ground prohibited under . . . title IX of the 

Education Amendments of 1972 (20 U.S.C. 1681 et seq.) . . . be excluded 

from participation in, be denied the benefits of, or be subjected to 

discrimination under, any health program or activity, any part of which is 

receiving Federal financial assistance, including credits, subsidies, or 

contracts of insurance, or under any program or activity that is administered 

by an Executive Agency or any entity established under this title (or 

amendments). The enforcement mechanisms provided for and available 

under ... title IX ... shall apply for purposes of violations of this subsection. 

42 U.S.C. § 18116(a). 

223. The ACA nondiscrimination provision specifically prohibits discrimination on the basis 

of those grounds that are prohibited under other federal laws, including Title IX. 

224. Defendants are subject to Section 18116 because Defendants are health programs and 

activities which will or are “receiving Federal financial assistance, including credits, subsidies, or 

contracts of insurance” may not discriminate on the basis of sex. See 42 U.S.C. § 18116(a) 

(incorporating Title IX by reference), as alleged in ¶¶31-35, 166-175, supra.

225. Title IX prohibits discrimination on the basis of sex. Plaintiffs and the members of the 

Class, who are necessarily all women, are being excluded from participation in and being denied the 

benefits of the enumerated preventive health benefit for breastfeeding women, and being subjected to 

discrimination by Defendants (in Defendants’ capacity as insurers and administrators of insurance 

plans) on the basis of their sex. 

226. The Final Rule (¶¶151-152 supra) confirms that a private right of action exists for 

claims of disparate impact discrimination on the basis of any of the criteria enumerated in the ACA 

(45 CFR 92; 81 FR 31375). 

227. In addition, as confirmed by the Final Rule, Title IX prohibits discrimination on the 

basis of sex, and “the definition of ‘on the basis of sex’ established by [the Final Rule] is based upon 

existing regulation and previous Federal agencies’ and courts’ interpretations that discrimination on 

the basis of sex includes discrimination on the basis of pregnancy, childbirth, ....” 81 Fed. Reg. at 

31388. See also, ¶¶154-156 supra; 81 Fed. Reg. at 31434 (“on the basis of sex” under Section 1557 

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includes “discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or 

recovery therefrom, childbirth or related medical conditions.”); see 45 CFR 86.40(b) (prohibiting 

discrimination on the basis of “pregnancy, childbirth, false pregnancy...”). 

228. And, lactation is a medical condition related to pregnancy and childbirth. See also, 

¶¶157-158 supra. To continue producing an adequate milk supply and to avoid painful complications 

associated with delays in expressing milk, a nursing mother will typically need to breastfeed or 

express breast milk using a pump two or three times over eight hours, thus, when facing lactation 

issues, breastfeeding women must be able to not only access the necessary care but do so promptly, to 

avoid further complications or even the inability to continue breastfeeding. Id. 

229. Defendants’ practice with respect to coverage for preventive health benefits and not 

identifying in-network providers of Comprehensive Lactation Benefits, singles out lactating and 

breastfeeding insured women for less favorable treatment with respect to ACA mandated preventive 

health benefits. 

230. Because only women lactate and breastfeed, and because lactation is a pregnancyrelated medical condition, Defendants’ misconduct affects only women and therefore is facially sexbased. 

231. Less favorable treatment of a lactating insured, specifically in failing to give access to 

in-network providers of Comprehensive Lactation Benefits, is unlawful sex discrimination. 

232. By their conduct, Defendants are providing disparate levels of ACA mandated 

preventive services to breastfeeding and lactating women. Defendants’ seemingly facially neutral 

policy of stating that they purportedly have in-network lactation consultants but not identifying such 

in-network providers, not giving lactating and breastfeeding insureds access to such in-network 

providers for this preventive service, and failing to provide such access in a timely manner (which is 

critical for lactation and breastfeeding), has a disparate impact on breastfeeding and lactating insured 

women. 

233. Defendants’ failures with respect to providing breastfeeding women their preventive 

health benefits (including Defendants’ refusal to establish processes to provide timely identification of 

in-network trained providers of Comprehensive Lactation Benefits), results in breastfeeding women 

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being excluded from participation in and being denied the benefits of the enumerated preventive health 

benefit for breastfeeding women. 

234. And, moreover, Defendants’ policies, and lack thereof, impose a significant burden on 

breastfeeding and lactating women, a protected class. Defendants’ practices are unlawful and 

discriminatory, and can be so irrespective of motivation or intent. 

235. By their conduct alleged herein, Defendants are providing disparate levels of health 

benefits, and specifically ACA-mandated preventive services, for women. The challenged practice, of 

not, at a minimum, identifying and timely identifying in-network providers of Comprehensive 

Lactation Benefits has a substantial disparate impact on women.

236. Defendants have violated and continue to violate Section 1557(a) of the ACA by 

discriminating, on the basis of sex, by failing to provide Comprehensive Lactation Benefits as a nocost preventive service as mandated by the ACA; by failing to provide a listing of in-network 

providers for Comprehensive Lactation Benefits; by denying coverage for Comprehensive Lactation 

Benefits secured by purported out-of-network providers in the absence of the availability of innetwork providers; by imposing cost and unreasonable administrative burdens intended to deter 

Plaintiffs and the members of the Class from seeking Comprehensive Lactation Benefits; and by 

placing other restrictions or limitations on Comprehensive Lactation Benefits, all of which causes (and 

has caused) widespread detrimental, disparate consequences to breastfeeding women. 

237. By violating the women’s preventive services requirements under the ACA, Plaintiffs 

and the members of the Class have been and continue to be denied mandated access to coverage for 

Comprehensive Lactation Benefits. Defendants’ unlawful conduct violates the ACA and unjustly 

enriches Defendants, depriving thousands of women of their ACA-mandated women’s preventive

services. 

238. If Defendants’ unlawful and discriminatory conduct is not foreclosed, many more of 

their female insureds will be wrongfully foreclosed from receiving Comprehensive Lactation Benefits, 

and/or reimbursement for Comprehensive Lactation Benefits as a preventive covered services, to 

which they are entitled under the ACA. 

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239. Plaintiffs and members of the Class have been aggrieved and damaged by Defendants’ 

violation of Section 1557 of the ACA. 

COUNT V 

Violation of the Patient Protection and Affordable Care Act 

through Incorporation by Reference in Defendants’ Plan Documents 

Against Defendants 

(On Behalf of the ACA Class) 

240. Plaintiff Carroll re-alleges and incorporates the preceding paragraphs as if fully set 

forth herein. 

241. Plaintiff Carroll and the ACA Class members’ plan documents describe the plan’s 

terms and conditions related to the operation and administration of the plans.

242. Plaintiff Carroll and the ACA Class members’ health plans are subject to the ACA. In 

addition, the plan documents specifically reference and track the preventive care provisions of the 

ACA, including the women’s preventive care provisions set forth in 42 U.S.C. § 300gg-13(a)(4). 

243. Accordingly, Plaintiff Carroll has the right to seek to enforce the provisions of the 

ACA, and, in particular, as alleged herein, the provisions of the ACA requiring the provision of 

Comprehensive Lactation Benefits as a no-cost women’s preventive service. 

244. As a result of Defendants’ failure to provide Comprehensive Lactation Benefits to 

Plaintiff Carroll and the members of the Class, Plaintiff Carroll and the members of the ACA Class 

have sustained monetary damages and, if Defendants’ conduct is not stopped, will continue to be 

harmed by Defendants’ misconduct.

COUNT VI 

Unjust Enrichment 

Against Defendants 

(On Behalf of the ACA Class) 

245. Plaintiff Carroll re-alleges and incorporates the preceding paragraphs as if fully set 

forth herein. 

246. Defendants have been unjustly enriched by the conduct alleged herein, including by: (a) 

withholding money due to Plaintiff Carroll and the members of the ACA Class paid for 

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Comprehensive Lactation Benefits; (b) implementing a course of conduct that prevents Plaintiff 

Carroll and members of the Classes from seeking Comprehensive Lactation Benefits (or making them 

pay out-of-pocket), including by their failure to establish a network of providers for Comprehensive 

Lactation Benefits; and (c) shifting the cost of ACA-mandated, no-cost women’s preventive services 

to Plaintiffs and members of the ACA Class.

247. Although it is part of Defendants’ responsibilities and duties to provide and administer 

health insurance coverage that satisfies the ACA-mandated preventive care requirements, including for 

Comprehensive Lactation Benefits, Defendants have failed to fulfill such responsibilities. 

248. As a result, Plaintiffs and members of the ACA Class conferred an unearned tangible 

economic benefit upon Defendants by paying out-of-pocket for a preventive service, namely, 

Comprehensive Lactation Benefits. 

249. Equity weighs against Defendants retaining these economic benefits, which should be 

returned to Plaintiffs and members of the ACA Class. 

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, individually, and on behalf of the members of the Classes, pray for 

relief as follows as applicable for the particular cause of action: 

A. An Order certifying this action to proceed on behalf of the Classes, and appointing 

Plaintiffs and their counsel to represent the Class; 

B. An Order finding that Defendants violated their fiduciary duties to the members of the 

Classes and awarding Plaintiffs and members of the Classes such relief as the Court deems proper; 

C. An Order finding that Defendants violated the preventive services provisions of the 

ACA, and awarding Plaintiffs and members of the Classes such relief as the Court deems proper; 

D. An Order finding that Defendants violated the ACA “nondiscrimination” provision, 

Section 1557(a), 42 U.S.C. § 18116(a), and awarding Plaintiffs and members of the ACA Class such 

relief as the Court deems proper; 

E. An Order finding that Defendants were unjustly enriched and awarding Plaintiffs and 

members of the Classes such relief as the Court deems proper; 

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F. Declaratory and injunctive relief as necessary and appropriate, including enjoining 

Defendants from further violating the duties, responsibilities, and obligations imposed on them by the 

ACA and ERISA with respect to Comprehensive Lactation Benefits; 

G. An Order awarding, declaring or otherwise providing Plaintiffs and members of the 

Classes all relief under ERISA, that the Court deems proper and such appropriate equitable relief as the 

Court may order, including damages, an accounting, equitable surcharge, disgorgement of profits, 

equitable lien, constructive trust, or other remedy; 

H. An Order finding that Defendants are jointly and severally liable as co-fiduciaries, in 

violations of ERISA; 

I. An Order awarding Plaintiffs and the members of the Classes other appropriate 

equitable and injunctive relief to the extent permitted by the above claims; 

J. An Order awarding Plaintiffs’ counsel attorneys’ fees, litigation expenses, expert 

witness fees and other costs pursuant to ERISA § 502(g)(1), 29 U.S.C. 1132(g)(1), and/or the common 

fund doctrine; and 

K. Such other and further relief as may be just and proper. 

JURY DEMAND 

Plaintiffs demand a trial by jury for all claims asserted in this Second Amended Complaint so

triable. 

Dated: September 5, 2017 

CHIMICLES & TIKELLIS LLP 

By: /s/ Kimberly Donaldson Smith 

Nicholas E. Chimicles (admitted pro hac vice) 

Kimberly Donaldson Smith (admitted pro hac vice) 

Stephanie E. Saunders (admitted pro hac vice)

361 W. Lancaster Avenue 

Haverford, PA 19041 

Phone: (610) 642-8500

Fax: 610-649-3633 

NEC@Chimicles.com 

KMD@Chimicles.com 

SES@Chimicles.com 

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KRISTEN LAW SAGAFI, California Bar No. 222249 

TYCKO & ZAVAREEI LLP 

483 Ninth Street, Suite 200 

Oakland, CA 94607 

Phone: (510) 254-6808

Fax: (202) 973-0950 

ksagafi@tzlegal.com

Marc A. Goldich (admitted pro hac vice) 

Noah Axler (admitted pro hac vice) 

AXLER GOLDICH LLC 

1520 Locust Street 

Suite 301 

Philadelphia, PA 19102 

Phone: (267) 534-7400

Fax: (267) 534-7407 

mgoldich@axgolaw.com 

naxler@axgolaw.com 

James E. Miller (admitted pro hac vice)

Laurie Rubinow (to seek admission pro hac vice)

SHEPHERD, FINKELMAN, MILLER AND SHAH, LLP 

65 Main Street 

Chester, CT 06412 

Phone: (860) 526-1100 

Fax: (866) 300-7367 

jmiller@sfmslaw.com 

lrubinow@sfmslaw.com 

Jonathan W. Cuneo (to seek admission pro hac vice) 

Pamela B. Gilbert (to seek admission pro hac vice) 

Matthew E. Miller (to seek admission pro hac vice) 

Katherine Van Dyck (to seek admission pro hac vice) 

CUNEO GILBERT & LADUCA, LLP 

4725 Wisconsin Ave. NW, Suite 200 

Washington, DC 20016 

Phone: (202) 789-3960 

Fax: (202) 789-1813

Counsel for Plaintiffs and the Proposed Classes

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CERTIFICATE OF SERVICE 

 I, Kimberly M. Donaldson Smith, hereby certify that on September 5, 2017, I 

electronically filed a true and correct copy of the foregoing Second Amended Complaint with 

the Clerk of the Court using the CM/ECF system. Participants in the case who are registered 

CM/ECF users will be served by the CM/ECF system. 

 /s/ Kimberly M. Donaldson Smith 

 Kimberly M. Donaldson Smith 

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