Checking in on PPACA’s Protections for Pumping Moms

By Kate Greenwood

Cross-Posted at Health Reform Watch 

For most women who work outside the home—Gisele Bundchen excepted—breastfeeding on the job is not an option.  Pumping breast milk during the work day is more likely to be a realistic, if often challenging, choice.

 As I blogged about here, Section 4207 of the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to require that employers provide their non-exempt employees  with reasonable unpaid breaks to express breast milk, and “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” in which to do it.  Employers with less than 50 employees are relieved of the requirement to the extent that it “would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”  In addition, under the Health Resources and Services Administration guidelines implementing PPACA’s women’s preventive services mandate, insurance plans must cover “costs for renting breastfeeding equipment” such as breast pumps and related supplies.

According to news reports (e.g., here, here, and here), new mothers have had some difficulty turning PPACA’s promise of a breast pump into a reality.  Many insurers require that women go through a durable medical equipment provider, but many durable medical equipment providers do not stock breast pumps.  In addition, insurers vary in what type of pump they cover.  Writing in the Winston-Salem Journal late last month, neonatal nurse practitioner Tinisha Lambeth reports that:

“Some mothers of premature infants qualify for a manual breast pump, while some mothers of full-term babies qualify for (unnecessary) hospital-grade electric pumps. Still others will get a dual electric pump, which are not as effective as a hospital-grade electric pump for an extended period of time, but are adequate for supplying full-term babies.  It all depends on your coverage.”

The breastfeeding advocacy groups the United States Breastfeeding Committee and the National Breastfeeding Center recommend that the cost of renting a powerful hospital-grade electric pump be covered upon a showing of medical necessity and that the cost of buying a regular electric pump be covered upon a showing that a nursing mother expects to be separated from her infant on a regular basis or for an extended period of time.

The women’s preventive services mandate did not go into effect until last August, and many women did not benefit until January of this year.  Some of the issues with coverage of breast pumps may be resolved as insurers and durable medical equipment suppliers gain experience with the new requirements.  At some point, though, HHS may need to step in and lend further specificity to the phrase “breastfeeding equipment”.  A hand pump or other equipment that cannot be used to express sufficient milk will not meet the Institute of Medicine’s criteria for preventive services—that they “improve well-being and/or decrease the likelihood or delay the onset of a targeted disease or condition.”

Turning to the new rule protecting time taken to pump at work, it is primarily enforced by the Department of Labor.  Individual plaintiffs can only sue if their efforts to take advantage of the rule lead to retaliation.  Caselaw is still sparse.  In a per curiam decision issued on December 26, 2012, the Eleventh Circuit affirmed the trial court’s grant of judgment as a matter of law in favor of the defendant in a case in which the plaintiff testified that she was given the breaks she needed to pump and that she had access to a private place in which to do so.  The plaintiff’s claim that she was retaliated against failed because an email that she sent asking where she could pump on a day when she would not have access to her own office did not constitute “fil[ing a] complaint.”  In a case brought in district court in the Northern District of Iowa, by contrast, the plaintiff survived a motion to dismiss, alleging, among other things, that the room in which she was told she could pump had an operating video camera in it.

The plaintiff in a case filed by the ACLU last month in Pittsburgh has a very compelling story, alleging that she was shunted from the bathroom, to a first aid room where she was subjected to harassment by her co-workers, and to “an old locker room that was furnished with nothing but a single chair on a filthy floor with dead bugs.”  When the plaintiff complained, “she was moved from the day shift to a rotating schedule that frequently required her to work an overnight shift, which disrupted her ability to breastfeed or produce enough milk for her baby.”  It will be interesting to track the progress of this case and others that give courts the opportunity to apply and interpret PPACA’s requirement of reasonable breaks in an appropriate place.

Photo Courtesy of ParentingPatch

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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