December 7, 1998

Making a Case for Infertility Coverage by Insurers

By JANE GROSS

"I've been up since 2:30 in the morning, thinking this is our last try," Ms. Saks said before that final visit to the doctor. "We cannot afford to go any further on our own."

But a bold decision to sue her employer could turn the tide for Ms. Saks and others like her. She is among a small but growing band of plaintiffs who have filed class action complaints with the Federal Equal Employment Opportunity Commission, charging that denying medical coverage for infertility treatments is unlawful discrimination.

The argument for coverage, closely watched by the estimated 6 million infertile couples in the United States, was bolstered by a Supreme Court ruling in June, not directly related to infertility, that declared that reproduction was "a major life activity" and that, therefore, those who could not procreate were protected under the Americans With Disabilities Act.

That decision has led to an increase in such complaints to the commission and "sends a clear message to employers" that denial of infertility coverage will come under new scrutiny, said a lawyer with the commission who spoke on the condition of anonymity. The complaints could lead to settlements brokered by the commission or wind up in U.S. Court, under Title VII of the Civil Rights Act or the newer Americans With Disabilities Act.

"Now we have a leg to stand on," said Mark Sokoloff, one of Ms. Saks' lawyers.

The idea of requiring coverage of infertility treatments is fiercely contested by insurance company advocates, business groups and some academics.

Ms. Saks, 37, is an unlikely standard-bearer, a soft-spoken store manager who until recently discussed her quest for a child only with her closest friends and relatives. But she said she was galled by what she called the hypocrisy of her employer, Franklin Covey Co., which sells motivational books and educational materials based on the Mormon principals of its owners, who say that family is their No. 1 priority.

One of those books, "The Seven Habits of Highly Effective Families," by Stephen Covey, sits on the coffee table in the Sakses' modest town house in this Putnam County village. The book is dedicated to "all children, our common mission" and begins with the author's unqualified assertion that "family is what I care the most about."

In the Franklin Covey store that Ms. Saks manages in White Plains, the shelves are filled with parenting guides. And at company management conferences, there are frequent discussions of policies to help employees balance work and family.

Yet Ms. Saks and her husband, Joel, a salesman of hair products, said they received no support from company executives during their wrangle with the insurance company that administers the Covey medical plan. That plan explicitly excludes coverage for "surgical impregnation procedures," including artificial insemination and in vitro fertilization, and for injectable drugs that assist in conception. It also excludes coverage for "complications arising from noncovered surgery," a footnote that would haunt the Sakses.

Ms. Saks, an employee of the company since 1995, began treatment for hormonal imbalance and infertility in June 1997, using a physician approved by the plan. She was prescribed a standard regimen of oral medication and was artificially inseminated with her husband's sperm.

Last September, Ms. Saks became pregnant, but miscarried a month later. Virtually all her medical claims were denied by the insurer, including those related to her miscarriage, which was deemed a "byproduct of an uncovered procedure."

Ms. Saks appealed the plan's denial of coverage and spent many months fighting over medical bills, which then totaled about $9,500. Two months ago, Ms. Saks was informed that $1,458 worth of services rendered between her positive pregnancy test and her miscarriage would be covered. But beyond that one month of care, her appeals were denied.

But Ms. Saks remained optimistic that the company's family-centered ethos would prevail if she brought her dilemma to someone's attention. Among the many letters she sent was one to Sean Covey, the company's vice president. "I would hope that a company that puts so much emphasis and value in family would see the need to help its employees achieve what matters most," Ms. Saks wrote.

That letter, and many others, went unanswered.

"It was shocking," Saks said of the company's silence. "We thought they practiced what they preached."

Last month, with the help of Resolve, an advocacy organization for infertile couples, Ms. Saks was put in touch with two New City law firms that were willing to take her case free of charge. Ms. Saks' complaint was filed late in October by the Jacob D. Fuchsberg Law Firm and the firm of Bernstein Litowitz Berger & Grossmann , and the EEOC notified Franklin Covey of the action. Several calls last week to Franklin Covey's corporate headquarters in Salt Lake City seeking comment went unanswered.

A second equal-opportunity complaint, also organized by Resolve, has been filed on behalf of a couple denied infertility treatment by the Long Island Rail Road. The second couple was not willing to be interviewed or identified. According to Resolve, the railroad paid for a procedure to remove sperm from the man, who has fertility problems. But the second half of the procedure, the injection of sperm into his wife, was not covered because the woman, also a railroad employee, is healthy.

While complaints of this kind are just now gaining ground in New York, they have already succeeded in Chicago. A police officer there won a $1.5 million class action settlement last year from the city for coverage of infertility treatment. And several other complaints to the EEOC have recently been settled, including one against a suburban police department and another against a consulting company.

Despite these recent victories for infertile couples, there is ample disagreement about whether insurance coverage for assisted reproduction is realistic, or required under the law.

George Annas, the chairman of the health law department at the Boston University School of Public Health, thinks that infertile couples have a much stronger claim for time off for treatment and other "reasonable accommodations" in the workplace than they do for medical coverage, since employers have no "affirmative obligation" to provide any insurance.

Not long ago, the New York State Task Force on Life and the Law issued a 462-page report on assisted reproductive technologies and concluded that there is "no persuasive reason" for requiring insurance coverage of infertility treatment when so many people have no health insurance at all or have coverage that excludes other conditions, including mental illness and dental problems.

That report was a blow to New York state lawmakers sponsoring a bill to mandate insurance coverage for infertility. That bill died in a committee last year but is expected to be reintroduced, with amendments that would put limits on the number of procedures, the total cost and who would qualify as a patient. Two states, Massachusetts and Illinois, already mandate infertility coverage, but self-insured companies are exempt.

Proponents of insurance reimbursements for infertility treatments, which are rarely covered, make an economic as well as a moral case. A study in Massachusetts, based on actual experience, found that the additional cost of such coverage was $1.71 a month per member. Other studies, based on projections, put the cost at about $3 a year.

The current situation encourages women to have expensive and ineffective gynecological surgery that is covered by insurance, advocates say, rather than more appropriate and effective procedures, including in vitro fertilization, which is generally not covered, but has a much higher success rate. And when women do choose in vitro procedures without insurance, they are more likely to implant many embryos to increase the odds that the expensive procedure will succeed. But that also raises the odds of highly expensive and dangerous multiple births.

The issue of insurance coverage dominates the agenda of Resolve, the advocacy group, which continues to recruit potential plaintiffs for legal action, even as it lobbies lawmakers in Albany for a state mandate. On Thursday, at Resolve's annual holiday party, Ms. Saks received a rousing ovation for filing her complaint.

She acknowledged the applause from the safe circle of her mother-in-law's embrace, her cheeks streaked with tears and mascara. Ms. Saks was clearly debilitated from a long day that began in the doctor's office. But she spoke optimistically about the artificial insemination.

"This time I was on a lot more drugs and I responded well," said Ms. Saks, who will learn in a few weeks whether the procedure was successful.

Her lawyer, Sokoloff, and Resolve's executive director, Pamela Madsen, prowled the room where the party guests included some of New York's leading infertility doctors. They were searching for someone who would take Ms. Saks as a patient, despite her inability to pay.

But by Friday morning, that hope had evaporated. "As of now, there's no new doctor," Ms. Madsen said. "She's cut off. That's it."