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.”

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Maintenance of Effort in Maine

After the NFIB decision in June, Maine tried to expand Justice Roberts’ remedy to also make the “maintenance of effort” provision optional for states. Maine was unsuccessful in the First Circuit with the argument, for procedural reasons.  Prior coverage here.

The Obama Administration is sticking to the letter of the law, and announced Tuesday that it is refusing to allow cuts for Medicaid beneficiaries at or below 133% (138% after the 5% income disregard) of FPL in Maine.

Maine has not yet announced whether it will take the case back to the First Circuit. With Huberfeld & Leonard, we’ve argued at length (see esp. pp. 75-83) that Maine does not have the winning argument, in an article to be published in the BU Law Review later this month. SSRN version here. The short version is that MOE is a common tool to lock-in states during transition to a new program, was discussed in the briefing, but was not part of the coercion analysis in Justice Roberts’ plurality. The key provision was 42 USC 1396c, the Secretary’s authority to reduce some or all of the funding to non-compliant states. But we will see if Maine wants to argue the substance of this point at the First Circuit.