Proton beam radiation therapy is used to treat various forms of cancer. Rather than using X-rays, proton therapy directs focused energy from protons at tumors.
Although the proven benefits of proton therapy have expanded its usage to different types of cancers, health insurers have balked at expanding coverage for such treatment, resulting in multiple lawsuits around the country.
A recent decision issued by the 5th U.S. Circuit Court of Appeals, Salim v. Louisiana Health Service and Indemnity Company, 2023 WL 3222804 (5th Cir. May 3, 2023) (unpublished), upheld a lower court ruling directing a health insurer to cover proton therapy.
The case was brought by Robert Salim, who sought coverage for proton beam therapy to treat throat cancer. The insurer denied his claim, maintaining the treatment was not medically necessary according to its claim guidelines. Salim challenged the denial but was unsuccessful. Salim then brought suit and won both in the district court and in the appeals court.
Because Salim’s insurance coverage was provided through a group policy he purchased for himself and his employees, his claim was subject to the Employee Retirement Income Security Act and was decided based on an arbitrary and capricious standard of judicial review. Nonetheless, both the trial court and the reviewing court found the denial unreasonable.
After the initial claim denial, Salim’s treating doctor pointed out to the insurer that the guideline relied upon as the basis of the denial had been updated by the American Society for Radiation Oncology (ASTRO) to specifically encompass head and neck cancers. Proton beam therapy for treatment of head and neck cancers was also recommended by the National Comprehensive Cancer Network Head and Neck Guidelines. In addition, Salim’s doctor cited more than a dozen peer-reviewed studies that supported the use of proton therapy for treatment of his cancer.
However, a consultant hired by the insurance company disagreed, claiming that Salim did not meet medical criteria to receive treatment.
The court framed the issue as raising the question of whether proton beam therapy was medically necessary to treat Salim’s cancer. It answered that question in the affirmative, finding the denial was unsupported by substantial evidence. The court defined substantial evidence as meaning that so long as “there is more than a scintilla of evidence supporting denial, then Blue Cross prevails.” (Citations and internal quotations omitted.) The court explained that under ERISA’s deferential review standard, its job was not to weigh the evidence, but that it could overturn the denial if the denial was unreasonable.
The court pointed out that the initial denial was based on the insurer’s reliance on an outdated guideline. Because the guideline was based on evidence-based treatment standards developed by ASTRO, the guideline in use became invalid when ASTRO updated its treatment recommendations to deem proton beam therapy the standard of care for head and neck cancers. Hence, the court explained:
“The updated ASTRO Policy is not competing evidence that requires a court to weigh one policy against another. Rather, the updated Policy is superseding evidence showing that ASTRO — a source which [the defendant] treated as reliable — in fact classifies proton therapy as medically necessary for Salim’s condition.”
The court added that while the insurer had discretion to make a benefit determination, it did “not have discretion to deny Salim’s claim by attributing to ASTRO a view that ASTRO does not hold.”
The court was also troubled by the independent review, which generically stated without providing specific citations that “most investigators recommend additional study … before adopting [proton therapy] as a standard treatment option for patients with head and neck cancer.” The court viewed that conclusory statement as unreliable since it conflicted with the ASTRO guidelines and the peer-reviewed studies cited by Salim’s physician.
The court further pointed out that the independent reviewer misstated the medical criteria developed by both ASTRO and the National Comprehensive Cancer Network for treatment since the updated policies recommended proton beam therapy to treat “advanced head and neck cancers,” which was precisely the diagnosis Salim had received.
Finally, although the defendant argued that Salim failed to establish that he fully met the policy’s medical necessity criteria, his physician had asserted that proton beam therapy was less costly and otherwise superior to other treatment options. Absent any rebuttal to that opinion, the treatment was found medically necessary.
There are many lessons to be drawn from this ruling. First and foremost, while a deferential standard of judicial review poses a difficult hurdle for benefit claimants to overcome, it is not impossible, although had there been differing views on the efficacy of proton beam therapy by the experts in the field, the defendant would have easily won. Instead, the insurer’s reliance on an outdated and superseded medical guideline failed to pass muster with the court, and the defendant’s doubling down when the plaintiff proved the guideline was outdated was an even poorer choice.
This ruling also illustrates the value of claim appeals and the importance of the treating physician’s involvement in the appeal process. The 5th Circuit’s opinion also mapped out a best practice that is not only advisable for medical claims, but also applies to any type of benefit claim involving medical evidence. Because medicine is rapidly changing, as new and better treatments become available, the place to start when challenging a benefit denial is to determine whether the criteria used as the basis for a denial remains up to date. Yesterday’s experimental or investigational treatment is today’s recognized standard of care.
The treating doctor won this case by doing much more than merely offering his opinion. By providing the insurance company with the most recent treatment guidelines and with peer-reviewed studies supporting his treatment recommendation, he established that proton beam therapy was medically necessary. That lesson cannot be overstated and should be used as a blueprint in future cases.
Mark DeBofsky is a shareholder at DeBofsky Law Ltd. ). He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage issues.
This article was first published by the Chicago Daily Law Bulletin on May 30, 2023.