By: Nick Bonds, Esq.

The baby formula shortage in the United States has been worsening for months. Our country’s supply was already squeezed by a perfect storm of pandemic-related supply chain issues and inflation costs. Then, with the detection of dangerous bacteria leading to the sickening and death of several infants, Abbott Nutrition shut down its Michigan plant in February – a plant that formerly supplied nearly one-fifth of all the baby formula in the country.

With this plant indefinitely offline, the available supply of formula dwindled even further. In early 2021, the national “out-of-stock” rate of formula on retail shelves hovered between 2% and 8%. In January 2022 it reached 23%; climbing as high as 43% in early May (and even higher in some states). These shortages led the Biden administration to invoke the Defense Production Act to make more resources available to formula manufacturers and tapped the Defense Department to help ramp up importation of formula from overseas via military and civilian cargo planes.

Despite these efforts, parents still struggle to acquire sufficient formula. This is spurring a push for greater support of breast feeding as an alternative that is not susceptible to supply chains. Of course, not every family wants to breastfeed, or even can breastfeed, but until the formula supply begins returning to normal it may be the only option for many. Accordingly, experts in pediatrics and economics have stressed that the more the American healthcare system can do to support breastfeeding the better, which includes pushing for more substantial breastfeeding training from providers, greater pumping options at work, and expanded paid family leave.

With these proposals ramping up, it’s worth taking stock of what breastfeeding support group health plans are currently obliged to provide. The ACA’s preventive services mandate requires that non-grandfathered group health plans cover certain preventive care services in-network without cost sharing. The U.S. Preventive Service Task Force (USPSTF), Health Resources and Services Administration (HRSA), and the Advisory Committee on Immunization Practices (ACIP) identify these preventive services that must be covered. Notably, the USPSTF is currently in the process of updating their recommendations on providing primary care interventions “during pregnancy and after birth to support breastfeeding.” Currently, this recommendation has a “B” grade from the USPSTF – meaning that it must be covered by non-grandfathered group health plans.

Additionally, the HRSA and Department of Health and Human Services (HHS) announced updates to their Women’s Preventive Services Guidelines in the latest release from the HHS Press Office, dated January 11, 2022. This new guidance, among other things, calls for group health plans to provide coverage without a copay or deductible for double electric breast pumps (prior guidance had not specified types of pumps that must be covered under the preventive services mandate).

This is area of compliance plans should be mindful of and ensure that their participants have the supplies to which they are entitled. We may see rapid developments in this area, particularly as the supply chain remains stretched thin and pressure mounts on Washington to do more to support families with infants and newborns.