Blue Cross Found to Be Behind the Times: Fifth Circuit Finds Blue Cross’ Proton Beam Treatment Guidelines Are Outdated, Superseded by New National Standards


Revisiting the topic from an article published earlier this year, another plaintiff has successfully challenged a commercial insurer’s internal Proton Beam Radiation Treatment (“PBT”) policy. PBT is a proven method of cancer treatment that insurers often refuse to cover, on the basis that PBT is “experimental” or “not medically necessary,” although it has been approved by the FDA since 1988. In Salim v. Louisiana Health Service & Indemnity Co., the United States Court of Appeals for the Fifth Circuit affirmed a district court’s summary judgment ruling in favor of the plaintiff and concluded that Blue Cross’ PBT Policy was outdated and superseded by new national PBT guidelines. This recent ruling underscores the need for careful scrutiny of health insurers’ internal PBT policies that often are unduly restrictive and unfairly limit patient access to PBT despite diagnostic and clinical support for the treatment. What does this mean for insureds, proton centers, and radiation oncologists?

Impact of Salim v. Louisiana Health Service & Indemnity Co.

Aetna, Humana, United, and Blue Cross Blue Shield have all faced immense scrutiny because of their internal Proton Beam Radiation Treatment (“PBT”) policies that patients and healthcare providers have argued unreasonably limit access to PBT. Most recently, an insured named Robert Salim prevailed against Blue Cross Blue Shield of Louisiana. Blue Cross’ PBT policy was based on outdated clinical guidelines. Because Blue Cross failed to update its policies according to new guidance published by nationally recognized oncology organizations, Mr. Salim was denied coverage for PBT to treat his head and neck cancer. Mr. Salim and his doctors appealed Blue Cross’ denial. In support of their appeal, the doctors informed Blue Cross that the American Society for Radiation Oncology (“ASTRO”) and the National Comprehensive Cancer Network (“NCCN”), two organizations leading cancer treatment research, had updated their clinical policies as early as 2017 to specifically recommend PBT to treat head and neck cancer, like Mr. Salim’s. Nevertheless, Blue Cross again denied Mr. Salim’s claim.

After paying out of pocket for his PBT, Mr. Salim sued Blue Cross under ERISA in the Western District of Louisiana. The district court agreed with Mr. Salim’s doctors and found that Blue Cross had abused its discretion in denying his pre-authorization for PBT in light of the new clinical PBT policies published by ASTRO and NCCN, which superseded Blue Cross’ internal policy. The district court granted summary judgment in favor of Mr. Salim and ordered Blue Cross to provide coverage for Mr. Salim’s PBT. Blue Cross appealed to the Fifth Circuit, and the Fifth Circuit affirmed the district court’s decision. The Fifth Circuit found that Blue Cross had misrepresented the 2017 ASTRO policy to Mr. Salim and his doctors when it denied his claim on the basis of medical necessity. However, the Fifth Circuit stated, “[p]erhaps Blue Cross has discretion to ignore ASTRO altogether, but it may not misrepresent ASTRO’s policy to its insured. Salim v. La. Health Serv. & Indem. Co., No. 22-30573, 2023 WL 3222804, at *5 (5th Cir. May 3, 2023). This statement is concerning as the court implies that commercial insurers are free to ignore the research and recommendations of nationally recognized organizations in favor of their own internal policies if the plan permits. Nevertheless, the Fifth Circuit held that substantial evidence did not support Blue Cross’s denial on the basis of medical necessity because the plan defined “medically necessary” as “in accordance with nationally accepted standards of medical practice.” Salim proves insureds and their doctors should continue to question commercial insurance companies and their independent reviewers when PBT claims are denied on the basis of medical necessity, as the insurer may be misconstruing clinical guidelines to support their denials.

As discussed in our previous article, commercial insurers have resisted covering PBT because they contend it is too expensive compared to traditional forms of radiation, or that the increased cost is not supported by demonstrable evidence of increased positive outcomes compared to traditional radiation. However, new research and guidelines like the ASTRO policy continue to prove that PBT is effective, safe, and necessary to treat certain types of cancer. In the years to come we expect commercial insurers will be forced to update their internal PBT guidelines to expand access. Coverage expansion is but the first challenge, as we anticipate commercial insurers will develop draconian reimbursement policies to counter the cost of covering PBT. Proton centers and radiation oncologists who provide PBT will spend less time appealing authorization denials and more time managing revenue cycles and negotiating proper reimbursement rates for covered PBT. For more information about this article, payor/provider disputes, or healthcare reimbursement litigation in general, please contact AGG Healthcare Litigation attorneys Rich Collins or Landen Benson.