October 26, 2010
Acne Cream? Tax-Sheltered. Breast Pump? No.
By DAVID KOCIENIEWSKI

Denture wearers will get a tax break on the cost of adhesives to keep their false teeth in place. So will acne sufferers who buy pimple creams.

People whose children have severe allergies might even be allowed the break for replacing grass with artificial turf since it could be considered a medical expense.

But nursing mothers will not be allowed to use their tax-sheltered health care accounts to pay for breast pumps and other supplies.

That is because the Internal Revenue Service has ruled that breast-feeding does not have enough health benefits to qualify as a form of medical care.

With all the changes the health care overhaul will bring in the coming years, it nonetheless will leave those regulations intact when new rules for flexible spending accounts go into effect in January. Those allow millions of Americans to set aside part of their pretax earnings to pay for unreimbursed medical expenses.

While breast-feeding supplies weren’t allowed under the old regulations either, one major goal of the health care overhaul was to control medical costs by encouraging preventive procedures like immunizations and screenings.

Despite a growing body of research indicating that the antibodies passed from mother to child in breast milk could reduce disease among infants — including one recent study that found it could prevent the premature death of 900 babies a year — the I.R.S. has denied a request from the American Academy of Pediatrics to reclassify breast-feeding costs as a medical care expense.

In some respects, the biggest roadblock for mothers’ groups and advocates of breast-feeding is one of their central arguments: nursing a child is beneficial because it is natural.

I.R.S. officials say they consider breast milk a food that can promote good health, the same way that eating citrus fruit can prevent scurvy. But because the I.R.S. code considers nutrition a necessity rather than a medical condition, the agency’s analysts view the cost of breast pumps, bottles and pads as no more deserving of a tax break than an orange juicer.

Many mothers’ groups and medical experts say that breast milk provides nutrition and natural supplements that prevent disease, and would like to see its use expanded. Hospital accreditation groups have been prodding maternity wards to encourage parents to feed only breast milk until a child is 6 months old.

The new health law does include one breakthrough for nursing mothers, a mandate that they be permitted unpaid breaks to use breast pumps. Spurned by tax authorities, breast-feeding advocates say they will return to Congress to get a tax break, too.

“There’s been a lot of progress in the past few years making the public, the medical establishment and even Congress recognize the health benefits of breast-feeding,” said Melissa Bonghi, a lactation consultant in Bainbridge Island, Wash. “But I guess the I.R.S. will just take a little longer.”

With the new regulations set to take effect in two months, millions of American workers now in the open enrollment period at their employers have to determine whether, and how much, to set aside for 2011. More than 20 million people have flexible spending or other tax-exempt health care savings accounts, and the programs are projected to cost the federal Treasury about $3.8 billion this year and $68 billion over the next decade.

The most far-reaching change involves over-the-counter medicines. Since 2003, most of them have been eligible expenses, making flexible spending accounts so popular that some plans issued debit cards that allowed users to make purchases without having to file for reimbursement later.

As of Jan. 1, however, over-the-counter medications — including allergy remedies, cough suppressants or even pain relievers like aspirin or ibuprofen — will be eligible only if they are prescribed by a doctor. That change is so drastic that the National Association of Chain Drug Stores, which represents 37,000 pharmacies, last week asked the I.R.S. for a two-year delay in that regulation, to allow merchants to recalibrate the computer systems that determine which products are eligible for purchase with flexible spending account debit cards.

Many factors, including the length of maternity leave, affect how long a woman breast-feeds.

According to a survey by the Centers for Disease Control and Prevention, about 75 percent of the 4.3 million mothers who gave birth in 2007 started breast-feeding. By the time the baby was 6 months old, the portion dropped to 43 percent, and on the child’s first birthday, to 22 percent.

A study released this year by Harvard Medical School concluded that if 90 percent of mothers followed the standard medical advice of feeding infants only breast milk for their first six months, the United States could save $13 billion a year in health care costs and prevent the premature deaths of 900 infants each year from respiratory illness and other infections.

“The old adage that breast-feeding is a child’s first immunization really is true,” said Dr. Robert W. Block, president-elect of the American Academy of Pediatrics. “So we need to do everything we can to remove the barriers that make it difficult.”

To continue breast-feeding once they return to work, many mothers need to use pumps to extract milk, which can be chilled and bottle-fed to the child later. The cost of buying or renting a breast pump and the various accessories needed to store milk runs about $500 to $1,000 for most mothers over the course of a year, according to the United States Breastfeeding Committee, a nonprofit advocacy group. Lactation consultants, who can cost several hundred dollars, also would not be an eligible expense.

Roy Ramthun, a former Treasury Department official, said that tax officials’ reluctance to classify those costs as medical expenses stemmed from a fear that the program might be abused.

“They get very uneasy about anything that smacks of food because they fear it will open up all sorts of exceptions,” said Mr. Ramthun, who runs a consulting company that specializes in health savings accounts. “It’s a matter of cost and of protecting the integrity of the tax code.”

Bills introduced last year by Representative Carolyn B. Maloney, Democrat of New York, and Senator Jeff Merkley, Democrat of Oregon, would have allowed nursing mothers to claim the tax break. But breast-feeding advocates say that effort, like many before, was undone by economic and cultural factors.

“Everyone says they support breast-feeding, but getting businesses and Congress to act on it has been surprisingly difficult,” said Barbara Emanuel, executive director of the breast-feeding advocacy group La Leche League International. “We get resistance from the formula companies and cultural resistance, so it can be hard to get nursing mothers the support that everyone agrees they deserve.”

Unless the law changes, some mothers may ask their pediatricians for a note that breast-feeding is medically necessary. Jody L. Dietel, who works for a company that processes claims from flexible spending accounts, says that many patients who receive orthodontic procedures have used such a tactic.

“Orthodontia is really so you have nice, straight teeth,” said Ms. Dietel, chief compliance officer for WageWorks. “But the doctors write notes warning that the patient’s jaw might be damaged without treatment or their overbite could cause health problems, and it becomes an eligible expense. For breast-feeding there are two components, too: nutritional and preventative medicine.”