The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT AND DENYING PLAINTIFF'S CROSS MOTION FOR
From March 1995 through October 1999, plaintiff Rochelle Saks
was employed by defendant Franklin Covey, a seller of products
and services related to time management, organization and
business communication training. During that period, plaintiff
and her husband were endeavoring to have a child. Saks and her
husband had numerous treatments, prescribed by two different
doctors, to enable her to conceive and carry a child, including a
regimen of clomiphine ("Clomid") and progesterone and
intrauterine insemination ("IUI"), which were unsuccessful. She
also completed two cycles of in vitro fertilization ("IVF"), in
April 1999 and August 1999. She became pregnant three times
between September 1997 and August 1999. All three pregnancies
ended in miscarriages.
Saks made claims for insurance reimbursement for her
treatments. For purposes of this motion, defendants concede that
plaintiff suffered from the condition known as infertility and
that all of the treatments prescribed to help her become
pregnant, including in vitro fertilization and intra-uterine
implantation, were "medically necessary" as that term is defined
in Franklin Coveys' self-insured health benefits plan.*fn1 Ms.
Saks' surgical fertilization procedures, which were rendered by
American medical professionals, qualify as "a service required
for the treatment of an active illness" (that illness being the
inability to conceive a child in the usual way).
Nonetheless, Franklin Covey has declined to cover the cost of
those procedures. Its insurance Plan specifically excludes
coverage for "surgical impregnation procedures," including
artificial insemination and in vitro fertilization. Saks contends
in this lawsuit that this exclusion violates three separate
Federal statutes: The Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101 et seq.; Title VII of the Civil Rights Act of
1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq.; and
the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k).
She also contends that the exclusion violates the New York
Executive Law § 296 ("the New York Human Rights Law"), and that
Franklin Covey has breached its contractual relationship under
the Plan by declining coverage, not only for the surgical
procedures, but for other medical services relating to her failed
pregnancies. After discovery, both parties have moved for summary
judgment — defendants for dismissal of the complaint, plaintiff
for partial summary judgment on the issue of liability.
For the reasons stated below, I am dismissing plaintiff's claim
that Franklin Covey's refusal to cover surgical procedures that
create pregnancy violates the law.
Standards for Summary Judgment
The usual standards for an award of summary judgment apply: a
party is entitled to judgment if there is no dispute of material
fact and that party is entitled to judgment as a matter of law.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). I view the facts most
favorably to plaintiff for purposes of considering defendants'
motion, which I elect to consider first since, if granted, it
would dispose of the entire case.
The following facts are undisputed for purposes of this
motion.*fn2 Plaintiff was employed by defendant Franklin Covey
Co. as a store manager at the company's retail store from March
1995 until she resigned in October 1999. As part of its benefits
package, Franklin Covey offers a self-insured health benefits
plan ("the Plan") that provides coverage to all full-time
employees and their dependents. The company has a contractual
arrangement with The TPA, Inc. ("The TPA"), an administrator for
self-insured health benefit plans, to act as the third-party
processing agent for claims made under the Company's Plan.
The Plan provides coverage for all "medically necessary"
treatments, which are defined under the Plan as "any service or
supply required for the diagnosis or treatment of an active
illness or injury that is rendered by or under the supervision of
the attending physician, generally accepted by medical
professionals in the United States and non-experimental."
An "illness" is defined as "any bodily sickness, disease,
mental/nervous disorder or pregnancy." Jane Clark, a Claim
Support Manager for the TPA, testified that infertility is a
"disease" or "illness" within the meaning of the Plan. Ms. Clark
also testified that fertility drugs and assisted reproductive
techniques such as intrauterine insemination ("IUI") and in vitro
fertilization ("IVF") are not considered experimental treatments
for the disease of infertility. However, the Plan excludes
coverage for "surgical impregnation procedures," including IVF
and IUI. "[C]omplications arising from any non-covered surgery"
are also excluded from coverage.
Plaintiff has unsuccessfully attempted to conceive since May
1994. In July 1995, she consulted with Dr. Ralph Berardi, an
OB/GYN, who suspected that plaintiff suffered from polycystic
ovarian syndrome. Plaintiff underwent a test that ruled out that
possibility, and Dr. Berardi recommended that plaintiff and her
husband, Joel Saks, continue to attempt a pregnancy through
sexual relations. In February 1996, Plaintiff began seeing
another OB/GYN, Dr. Deborah Cerar, who recommended that plaintiff
undergo several diagnostic tests to determine the cause of her
infertility. None of these tests revealed the source of
plaintiff's infertility. Upon Dr. Cerar's recommendation,
plaintiff began using ovulation kits to determine when she was
ovulating so that intercourse with her husband could be timed to
maximize the likelihood of conception. This approach, however,
By May or June 1997, plaintiff had become dissatisfied with Dr.
Stangel's insemination procedures, and decided to switch to a new
reproductive endocrinologist, Dr. Gad Lavy. In or about May or
June 1997, plaintiff called defendants' third-party administrator
("TPA") to determine the benefits to which plaintiff was entitled
under the Plan for her initial visit with Dr. Lavy. The TPA
informed plaintiff that, except for the $15 co-payment required
for all doctor visits, the initial consultation would be covered
under the Plan.
Plaintiff consulted with Dr. Lavy in or about July or August
1997. Lavy diagnosed plaintiff as having a hormonal imbalance
and, consequently, ovulation disorder. Dr. Lavy recommended (1)
treatment with Clomid, estrogen and progesterone to regulate
plaintiff's ovulation, and (2) continued IUI and regular
intercourse to increase the likelihood of successful conception.
Plaintiff underwent the first cycle of IUI in August 1997. The
administration of Clomid to plaintiff of Clomid had to be
monitored with blood work and ultrasound tests, as did her course
of estrogen and progesterone treatment.
Plaintiff submitted claims to the TPA for all the expenses
incurred in connection with Dr. Lavy's treatment. However, the
TPA authorized reimbursement only for venipuncture that Lavy had
performed on plaintiff, as well for the cost of the drugs
estradiol and progesterone administered on August 29, 1997.
Payment for the remainder of Lavy's treatment was denied.
On September 8, 1997, plaintiff learned that she was pregnant.
During the following two weeks, her pregnancy was closely
monitored with ultrasound and blood tests, which defendants
refused to cover. Her first ultrasound revealed a heartbeat, as
well as a possible second gestational sac. Her second ultrasound,
however, on or about September 27, revealed no heartbeat in the
first gestational sac, and a follow-up blood test showed a
decrease in HCG, the pregnancy hormone. A subsequent test on
October 6 confirmed that plaintiff had miscarried, and she
underwent a dilation and curettage ("D & C") the next day to
remove the miscarried fetus. Further tests on the fetus to
determine the cause of the miscarriage were inconclusive.
The TPA refused to reimburse plaintiff for the cost of the D &
C, hysterosalpingogram, and the pathology tests performed after
plaintiff's miscarriage. Plaintiff successfully appealed that
denial, however, and in October 1998, the TPA provided coverage
for her pregnancy-related expenses.
Plaintiff continued her treatments with Dr. Lavy through
December 1998, or thereabouts, during which time she underwent
ten more IUIs. From November 1997 until April 1998, she continued
the course of Clomid, progesterone and estrogen accompanied by
IUIs. Beginning in May 1998, Dr. Lavy prescribed Humagon, an
injectable drug (plaintiff does not recall whether the Humagon
was administered in place of, or in conjunction with, the
Clomid). Plaintiff continued the course of progesterone, estrogen
and IUIs and the monitoring with ultrasounds and blood work that
her treatment entailed. Dr. Lavy also advised plaintiff to
undergo another hysterosalpingogram, the results of which came
back negative. Dr. Lavy then told plaintiff that the next
appropriate treatment step was in vitro fertilization ("IVF").
Plaintiff claims that she was unable to pursue that course of
action because of defendants' refusal to cover the cost of her
treatment with Dr. Lavy. The TPA refused coverage for all of the
IUIs and related drug and monitoring expenses that plaintiff
incurred while in Dr. Lavy's care. Consequently, plaintiff and
were forced to pay for this treatment personally.
In December 1998, Dr. Lavy informed plaintiff that he would not
continue to provide her with further treatment until she paid in
full the outstanding balance of Lavy's fee, which totaled
approximately $6,000. Plaintiff was ...