In 2018, an Oklahoma jury awarded $25.5 million to the family of a cancer patient denied coverage for proton radiation therapy by Aetna. The case involved the denial of coverage for Orrana Cunningham, who had stage 4 nasopharyngeal cancer near her brain stem. Her doctors wanted her to receive proton therapy, a targeted form of radiation that could pinpoint her tumor without the potential for blindness or other side effects of standard radiation. Aetna denied coverage based on their exclusion for investigational and experimental treatment and services. The jurors said their verdict was intended as a message for Aetna to change its ways.
Last year, a jury in Las Vegas, Nevada, returned a $200 million verdict against a UnitedHealthcare subsidiary, with $160 million of the award intended to punish the insurer for its malicious and oppressive conduct, and to deter them and other insurers from similarly denying coverage.
Two weeks ago, notice of a $3.4 million class action settlement with Aetna was filed in the United States District Court for the Eastern District of Pennsylvania, that will allow 142 patients who were denied coverage for proton radiation therapy to submit claims for reimbursement. Perhaps more importantly, Aetna revised its coverage guidelines after this lawsuit was filed to expand the list of cancers for which proton beam therapy could be considered an appropriate treatment.
Several other insurers have also been sued in the last few years for wrongful denials of proton therapy, including UnitedHealthcare, Humana Insurance Co., Blue Cross Blue Shield of Texas, Blue Shield of California, Blue Cross Blue Shield of North Carolina, and others.
These types of cases can be a catalyst for change, forcing insurers to reconsider their internal coverage guidelines and medical policies on proton therapy. As we’ve seen in the wake of these court decisions, insurers have revised their guidelines to allow for greater utilization of proton therapy for more types of cancer diagnoses. Each revision is an incremental concession by insurers that they can no longer justify coverage denials on grounds that proton therapy is not “medically necessary” for a patient suffering with cancer or that the treatment is excluded as “experimental” or “investigational.” This is compounded by the fact that FDA approved it in 1988, the leading cancer centers in the nation provide proton therapy as a safe form of treatment, numerous studies illustrate proton therapy’s efficacy in treating various cancers, and Medicare covers it.
Commercial insurers have resisted covering proton therapy 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. These cost-based denials are short-sighted. First, only 1.5% of all radiation-related claims made in the U.S. are for proton therapy. Second, the cases above demonstrate there can be a steep price for denying coverage. Finally, and perhaps most significantly, studies have shown that proton therapy results in less damage to healthy tissue and organs, toxic side effects, secondary cancers, and other consequences of traditional radiation that lead to hospitalizations and other forms of acute and long-term care that will prove far more expensive for the insurers.
Over the next five years, look for commercial insurers to focus less on restricting their proton therapy utilization guidelines and more on their reimbursement policies, developing alternative payment models that allow for greater access to proton therapy without the corollary increase in medical loss ratios and premiums that insurers always bemoan when defending their guidelines. If insurers are more receptive to the pleas of their members’ providers who caution of the potential negative outcomes should proton therapy be denied, and if they look to invest in the long-term health of their members, not just until the next open enrollment, they would appreciate the benefits of that investment by saving on the cost of future care. Studies have also shown that patients who receive proton therapy recover quicker and are able to return to work and resume their regular duties. For employer self-funded health plans, insurers who deny proton therapy are not only unnecessarily passing along the cost of future care to the employer, but also the cost of having a valued employee out of work for a longer period of time.
Insurers can either continue to be short-sighted investors in their members and risk losing their business and, more importantly, their employer’s business, or they can initiate programs that value membership longevity and reward plan renewals. They can use their warehouses of claims data to identify providers for network inclusion, or to establish a “center of excellence” or “blue ribbon” panel of providers, to expand access while establishing acceptable reimbursement rates and enabling economic feasibility for all stakeholders. If this is the trend for proton therapy coverage, proton centers and radiation oncologists who provide this treatment will likely see a shift in time spent appealing authorization denials to time spent managing revenue cycles and negotiating proper reimbursement rates for covered proton therapy.
For more information about this article or healthcare reimbursement litigation in general, please contact AGG Healthcare Litigation attorneys Rich Collins or Landen P. Benson.