United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY UNITED STATES DISTRICT JUDGE
Laura Briscoe, Kristin Magierski, and Emily Adams gave birth
while insured by Blue Cross and Blue Shield of Illinois
(BCBSIL). Plaintiffs, on behalf of three proposed classes,
allege that Defendants Health Care Service Corporation (HCSC)
and BCBSIL violated the Patient Protection and Affordable
Care Act (ACA) by failing to cover lactation counseling
services. Plaintiffs amended their complaint in May 2017.
. Defendants moved to dismiss that complaint under
Federal Rule of Civil Procedure 12(b)(6). . For the
reasons explained below, this Court partially grants and
partially denies Defendants' motion.
The ACA's Requirements
requires health plans to cover certain preventive services
without imposing cost sharing. 42 U.S.C. § 300gg-13.
“Cost sharing” means costs that members pay
themselves, such as copayments, coinsurance, and deductibles.
29 C.F.R. § 2590.715-2713(a)(1). For women, health plans
must fully cover “preventive care and screenings”
that the Health Resources and Services Administration (HRSA)
identifies in its guidelines. § 300gg-13(a)(4).
HRSA's guidelines require coverage during and after
pregnancy for “lactation support and counseling”
and “renting breastfeeding equipment.” Health
Res. & Servs. Admin., Women's Preventive Services
visited Nov. 3, 2017).
does not require health plans to maintain a network of
lactation counselors, but plans lacking in-network providers
must cover lactation counseling performed by out-of-network
providers without imposing cost sharing. 45 C.F.R. §
147.130(a)(3). Simply put, those plans must pay all expenses
for out-of-network lactation services. Plans that offer
“networks of providers” must give participants
some information about their providers: namely, “an
Internet address (or similar contact information) for
obtaining a list of network providers.” 45 C.F.R.
gave birth in November 2014 while insured by BCBSIL through
her then-employer, the Field Museum.  ¶¶ 16,
99. She called BCBSIL to identify in-network lactation
consultants, and a representative told her that BCBSIL
“had no network of providers for lactation
services.” Id. ¶ 100. Briscoe then tried
BCBSIL's online Provider Finder (PF), but could not
locate an in-network provider because PF did not allow
“lactation, ” “breastfeeding, ” or
related terms as searchable provider types or specialties.
Id. After BCBSIL's resources proved unhelpful,
Briscoe independently found an International Board Certified
Lactation Consultant (IBCLC) who gave her a $200 in-home
consultation. Id. ¶¶ 101-03. When Briscoe
submitted a claim for reimbursement, BCBSIL denied the
lactation consultation as an excluded service. Id.
¶ 103. After Briscoe appealed, BCBSIL paid $160 and held
her responsible for $40 in coinsurance. Id. ¶
gave birth in April 2016 while insured by a plan she bought
directly through BCBSIL. Id. ¶¶ 17, 106.
Magierski contacted BCBSIL twice to get a list of in-network
providers for lactation services. Id. ¶ 107.
Representatives told her that BCBSIL had no in-network
lactation services providers, so she could use any provider
and BCBSIL would fully cover the services. Id.
Magierski still tried using PF to find an in-network
provider, but ran into the same problems as Briscoe.
Id. ¶ 108. Like Briscoe, she then independently
found an IBCLC for an in-home consultation that cost $245.20.
Id. ¶ 109. When Magierski submitted a claim for
reimbursement, BCBSIL covered $137.59, but applied that
covered amount to Magierski's out-of-network deductible,
leaving her responsible for paying the full $245.20.
Id. ¶ 110. Magierski appealed, but to no avail.
Id. ¶ 111.
gave birth in May 2016 while insured by BCBSIL through her
employer, the Illinois Attorney Registration and Disciplinary
Commission (ARDC). Id. ¶ 113;  at 11.
Before contacting an IBCLC that her pediatrician recommended,
Adams tried using PF to find an in-network lactation
consultant, but found PF as unhelpful as Briscoe and
Magierski did.  ¶ 114. Adams then called BCBSIL to
ask about providers; a representative told her that BCBSIL
would reimburse her an undisclosed “allowed
amount” for out-of-network lactation services because
BCBSIL “had no network of providers for lactation
services.” Id. ¶ 115. So, Adams saw her
pediatrician's IBCLC for an in-home lactation
consultation, paid $235 out of pocket, and submitted a claim
to BCBSIL for reimbursement. Id. ¶¶
116-17. BCBSIL reimbursed her only $109.64, applying $27.40
to coinsurance and denying the rest of the claim as not
covered (without explaining how it calculated the covered
amount). Id. ¶ 117. BCBSIL upheld that decision
when Adams appealed. Id. ¶ 118.
an independent licensee of the Blue Cross and Blue Shield
Association, operates Blue Cross and Blue Shield plans in
Illinois, Montana, New Mexico, Oklahoma, and Texas that serve
more than 15 million members. Id. ¶ 19. More
than 12 million of those members come from HCSC's
employer-group segment. Id. BCBSIL is a division of
HCSC. Id. ¶ 20. The largest health insurance
company in Illinois, BCBSIL serves more than 8 million
members. Id. HCSC operates group and individual
health insurance plans within the ACA's purview.
Id. ¶ 22. BCBSIL and other HCSC divisions offer
and administer plans directly through ACA Exchanges.
Id. ¶ 23.
survive a motion to dismiss, a complaint must provide a
“short and plain statement of the claim showing that
the pleader is entitled to relief, ” Fed.R.Civ.P.
8(a)(2), so Defendants have “fair notice” of the
claim “and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
A complaint must also contain “sufficient factual
matter” to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). A claim has facial plausibility “when the pleaded
factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). This plausibility
standard “asks for more than a sheer possibility that a
defendant has acted unlawfully.” Williamson v.
Curran, 714 F.3d 432, 436 (7th Cir. 2013).
“threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Limestone Dev. Corp. v. Vill. of
Lemont, 520 F.3d 797, 803 (7th Cir. 2008). In evaluating
a complaint, this Court accepts all well-pleaded allegations
as true and draws all reasonable inferences in
Plaintiffs' favor. Iqbal, 556 U.S. at 678. This
Court does not, however, accept legal conclusions as true.
Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).
putative class action alleges that BCBSIL violated the ACA by
denying them coverage for, and access to, lactation
counseling. Plaintiffs assert their claims under various
legal theories, including ERISA (Counts I, II, and III), the
ACA's anti-discrimination provision (Count IV), and state
law (Counts V and VI). Plaintiffs concede that Adams cannot
pursue ERISA claims because ERISA does not apply to her plan
sponsored by her government employer, the ARDC. See
 at 24-25;  at 21 n.8. This Court dismisses Counts I,
II, and III as to Adams.
Defendants argue that Counts II through VI fail because
Plaintiffs do not allege a plausible ACA violation.
Defendants also attack most of Plaintiffs' claims with
more targeted arguments. This Court first addresses whether
Plaintiffs allege a plausible ACA violation-a necessary
predicate to most of their claims- and then addresses each
count of the amended complaint in turn.
Whether Plaintiffs Allege a Plausible ACA Violation
claim that Defendants violated the ACA in two main ways: (1)
by improperly imposing cost sharing for lactation services;
and (2) by creating administrative barriers that block access
to lactation services. See .
Improper Cost Sharing
claim that Defendants violated the ACA by imposing cost
sharing for lactation counseling services that should have
been fully covered under 45 C.F.R. § 147.130(a)(3).
Defendants argue that the ACA allows them to impose cost
sharing for out-of-network services because their network has
lactation counseling providers. This Court finds that
Plaintiffs state a plausible claim that Defendants violated
the ACA by improperly imposing cost sharing for lactation
Adams, and Magierski each allege that BCBSIL representatives
told them in varying ways that no in-network providers
existed. A BCBSIL representative told Briscoe that BCBSIL
“had no network of providers for lactation services,
” and Adams got the same message when she contacted
BCBSIL.  ¶¶ 100, 115. Magierski heard from two
representatives that BCBSIL had no in-network lactation
services providers; those representatives told her that she
could see any provider and BCBSIL would fully cover the
lactation counseling. Id. ¶ 107. Each Plaintiff
also found it impossible to locate in-network providers
through BCBSIL's online search. Id. ¶¶
100, 108, 114.
what its representatives told Plaintiffs, BCBSIL imposed cost
sharing on Plaintiffs' claims for lactation counseling
services. Defendants agree that the ACA prohibits plans
without in-network lactation counseling providers from
imposing cost sharing for those services when members see
out-of-network providers.  at 10-11. Accepting
Plaintiffs' allegations as true and drawing all
reasonable inferences in their favor, Iqbal, 556
U.S. at 678, they adequately allege that BCBSIL had no