JODI HAUSEN, Chronicle Staff Writer, November 10, 2011

A health insurer that withdrew medical coverage for a Bozeman nurse’s pregnancy after learning it was a surrogacy was ordered by the state to pay her medical bills.

Jameson C. Walker, attorney for the Montana Commissioner of Securities and Insurance, notified New West Health Services that the insurer has to reimburse Anicee Acosta-Yearick for costs associated with her 2009 surrogate pregnancy.

“New West attempt to exclude coverage for surrogacy” but the exclusion outlined in the plan “only applies to costs associated with treatment of infertility – not an ensuing pregnancy by the insured surrogate,” Walker wrote in bold in the Nov. 1 letter.

“The policy also provides for coverage for all pregnancy and does not specifically exclude surrogacy pregnancy,” he continued.  “Even if the exclusion applied to the insured’s surrogacy pregnancy, this would be a violation” of Montana law that makes it unlawful to discriminate “solely on the basis of sex or marital status in the issuance or operation of any type of insurance policy.”

Citing a previous Montana Supreme Court case, Walker continued: “Since pregnancy was a condition unique to women, and the exclusion subjected women to fewer benefits than men, (the policy in question) unlawfully discriminated on the bases of gender.”
New West was given until Dec. 1 to provide the commissioner’s office with proof Acosta-Yearick’s covered pregnancy costs have been paid.

In a lawsuit filed against New West, Acosta-Yearick and her husband, Christopher Yearick, sued to recover more than $11,500 in medical claims.
Although it appears her medical bills will be paid, Acosta-Yearick is still awaiting resolution on a related wrongful discharge lawsuit she filed in Gallatin County District Court against Billings Clinic.

According to the lawsuit, Acosta-Yearick contends Billings Clinic wrongly fired her on grounds she violated the organization’s code of ethics when she agreed to carry an infertile patient’s baby.

Acosta-Yearick worked for Bozeman OB/GYN, owned by Billings Clinic, for 16 years before she was fired in January.  She was terminated because “as a licensed professional nurse, she used her knowledge of private, protected health information to influence and solicit a Billings Clinic patient to enter into a surrogacy contract resulting in personal gain,” which violates the clinic’s code of conduct and a nursing code of ethics, court documents state.

Billings Clinic filed an ethics violation complaint against Acosta-Yearick with the Montana Nursing Board, but the board determined the complaint did not justify legal or disciplinary action, court documents state.

Acosta-Yearick claims she is friendly with the couple who asked for her help.  She did not ask for financial compensation other than expenses.  She carried the woman’s baby as a gift.

Medical providers, who worked with Acosta-Yearick, supported her decision to be a surrogate mother for the patient.  They submitted written statement that called into question the clinic’s motives for firing her.

In her statement Dr. Stacey H. Shomento said that the complaint filed with the nursing board was “a personal vendetta” against Acosta-Yearick.  “I feel very strongly that Anicee has been wrongly accused,” she wrote.

Todd Shea, Acosta-Yearick’s attorney, also alleges in the suit that Billings Clinic violated the nurse’s privacy when they reviewed her medical records without her permission.
The clinic filed to dismiss the case, saying state law protects employers from being sued for wrongful discharge when they have good cause to do so.

The clinic’s attorney, Ed Butler, of Colorado Springs, Colo., calls the case “wholly frivolous” and claims the accusations of insurance fraud, nursing ethics violations and “specifically the propriety of Mrs. Yearick’s decision to become a surrogate mother for a patient…and her financial gain from that decision” are all valid reasons for having fired her.