Background
Matthew and Jamie Skipper experienced years of diagnosed infertility before obtaining a CareFirst BlueChoice HMO Silver Policy through the Maryland Health Benefit Exchange. In 2018, CareFirst pre-authorized three rounds of IVF treatment but refused to cover embryo thawing — a $900 cost the Skippers paid out of pocket — citing Exclusion 16.11, which excluded coverage for “[o]vum transplants and gamete intra-fallopian tube transfer, zygote intra-fallopian transfer, or cryogenic or other preservation techniques used in these or similar procedures.” After an internal appeal was denied as untimely, the Skippers filed a complaint with the Maryland Insurance Administration and, in April 2021, a putative class action in federal court on behalf of all CareFirst insureds who were denied coverage for IVF-related embryo thawing.
Twenty-three days after the federal complaint was filed, CareFirst reversed its position and reimbursed the $900 claim in full. The federal district court subsequently dismissed the case in March 2023 for lack of jurisdiction, finding the putative class claims did not meet the Class Action Fairness Act’s $5 million threshold. Fifteen days later, the Skippers refiled a materially identical complaint in the Circuit Court for Prince George’s County, invoking Maryland Rule 2-101’s 30-day savings provision for actions dismissed by federal courts for lack of jurisdiction. The circuit court granted CareFirst’s motion to dismiss on mootness grounds. The Appellate Court of Maryland reversed, and the Supreme Court of Maryland granted certiorari.
Two justices dissented.
The Court’s Holding
The Supreme Court of Maryland first held that the Skippers’ putative class action was not moot. Extending its 2013 decision in Frazier v. Castle Ford, Ltd., 430 Md. 144 (2013), the Court ruled that a defendant cannot escape class action liability by “picking off” the named plaintiff’s individual claim before class certification — and that this anti-pick-off rule applies even when the payment occurred during a prior filing in a different court that was later dismissed for lack of jurisdiction and promptly refiled in state court. Because CareFirst had not alleged that the Skippers were given a reasonable opportunity to seek class certification in either court, the case was not moot.
On the merits, the Court held that Insurance Article § 15-810(c) requires insurers to cover expenses arising from IVF procedures to the same extent as expenses arising from other pregnancy-related procedures. Reading subsections (c)(2) and (c)(3) together, the Court rejected CareFirst’s argument that excluding only “some” IVF expenses was permissible. The Court further held that Maryland Insurance Administration Bulletin 13-01 and COMAR 31.11.06.06B(11), properly read, do not permit insurers to exclude IVF benefits from individual policies purchased through the Health Benefit Exchange. The statutory small-employer exemption expressly does not apply to individual purchasers such as the Skippers.
The Court also held, as a matter of contract interpretation informed by the statutory and regulatory background, that Exclusion 16.11 does not authorize exclusion of any medically necessary expenses arising from IVF procedures, including embryo thawing. The listed procedures in the exclusion — ovum transplants, GIFT, ZIFT, and cryogenic techniques “used in these or similar procedures” — do not encompass IVF itself, and ambiguity in the exclusion must be construed against the insurer as drafter. The judgment of the Appellate Court was affirmed and the case remanded for further proceedings.
Key Takeaways
- Maryland’s anti-pick-off rule from Frazier v. Castle Ford now extends across forum transitions: a payment tendering full individual relief during a prior federal filing does not moot a state court class action refiled promptly after federal dismissal for lack of jurisdiction.
- Insurance Article § 15-810(c) mandates coverage for all outpatient IVF expenses on par with other pregnancy-related procedures; an insurer may not carve out component services such as embryo thawing by invoking boilerplate cryogenic preservation exclusions.
- MIA Bulletin 13-01 and COMAR 31.11.06.06B(11) do not provide a regulatory safe harbor permitting IVF exclusions in individual Exchange policies; the small-employer exemption in § 15-810(c)(1) does not apply to individual insureds.
- Policy exclusions are construed against the insurer, and courts will read applicable statutes and regulations into the policy as if expressly incorporated — particularly where policy language mirrors or operates against a statutory backdrop.
Why It Matters
Maryland was the first state in the nation to mandate IVF coverage, enacting the predecessor to § 15-810 in 1985. This decision gives that mandate its broadest reading yet, foreclosing efforts by insurers to honor the mandate in form while undermining it through targeted exclusions of necessary procedural components. Insurers offering individual policies through the Maryland Health Benefit Exchange should audit their exclusion language for any provisions that could be read to carve out medically necessary steps in a covered IVF cycle.
The standing ruling carries equal significance for class action practice. By extending Frazier to the cross-forum refiling scenario, the Court closes a gap that could have allowed defendants to neutralize putative class representatives through a strategic early payment, then argue mootness each time the case changed venues. The decision aligns Maryland with the growing consensus among federal circuits that the “pick-off” tactic cannot defeat class certification before plaintiffs have a fair opportunity to pursue it.