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Blue Cross’ War on Proton Therapy - Not Medically Necessary?

Posted by David P. Martin | Jun 12, 2023 | 0 Comments

Mr. Salim owned a small business, perhaps like many of you. He wanted to provide health insurance for himself and his employees, so he bought a health insurance plan from Blue Cross.  (the “Plan”). These facts typically push the plan under the federal law called ERISA, although Mr. Salim did not know this.  

Unfortunately, as happens all too often these days, he developed cancer. He was diagnosed with throat cancer in September 2018. His medical provider, Dr. Fuller, determined “proton therapy”  (PBT) was necessary for treatment. “Dr. Fuller stated the goal of using PBT on Salim was to decrease the short-term risk for a feeding tube by 50% and long-term complications, such as permanent hearing loss, swallowing dysfunction, and neurocognitive deficits.” Salim v. La. Health Serv. & Indem. Co., CIVIL 1:19-CV-00442, at *6 (W.D. La. June 13, 2022). Salim sought preauthorization for PBT from AIM Specialty Health, a company that helps Blue Cross administer the Plan.

AIM, for Blue Cross, denied the treatment as “not medically necessary.” Those words are all too common and cause so much anguish for people fighting cancer. There are few times in life when a claimant wants their care in the hands of a cancer specialist who is successful rather than an insurer. Mr. Salim read further and saw that AIM contended that “Salim had no history of cancer, and that proton therapy is used only ‘when the same area has been radiated before.' AIM also denied Salim's appeal. AIM's denials cited only one source: the “clinical appropriateness guideline titled Radiation Oncology: Proton Beam Therapy” (the “Guideline”).” Salim v. La. Health Serv. & Indem. Co., No. 22-30573, at *2 (5th Cir. May 3, 2023). 

Was this reason true? Why was it not in his policy so he knew about the guideline?  Many Blue Cross policies have a clause that incorporates by reference a guideline like this. Sometimes that guideline will rely on a medical resource that is not in the plan, and it incorporates the guideline creating floating or varying plan terms. That can create a big concern as, typically, the insured does not have this document.

Salim was not taking chances with his health. He self-paid for the proton therapy and went forward with treatment. He was anguished and frustrated over this refusal to pay a claim in his hour of need. After getting the treatment and seeing its success, he wanted to sue for damages, and so he sought counsel. Initially, he filed suit in state court under state law. However, the case was removed to federal court. ERISA governed, and federal question jurisdiction supported removal.

Salim also learned that despite the mental anguish, distress, and anger, under ERISA no mental anguish or punitive damages could be recovered. All state law claims were preempted. He could only sue for the benefits that should have been paid. It would also be a struggle to win under the onerous arbitrary, and capricious standard of review. Maybe the court would allow interest and attorney's fees. Maybe.

Salim's case was strong. Dr. Fuller had gone to bat for him during the claim process. Many physicians struggle to find time to help a claimant like this, but Dr. Fuller found the time. He argued during the claim process, that the guideline relied on to deny the claim, which was in a third-party resource outside the plan, had been updated to specifically approve proton therapy for exactly this condition. Blue Cross was relying on old data. It did not care, and, nonetheless, refused to pay the claim. It had the arbitrary and capricious standard of review on its side, and even a wrong reason to refuse to pay a claim was good enough, as long as it had a reasonable basis.

Now almost 4 years after his diagnosis, the district court agreed with Dr. Fuller's arguments and ruled for Salim. “Because Salim showed that PBT was a nationally accepted standard of care for advanced head and neck cancer in 2018, BCBSLA abused its discretion in finding Salim's PBT treatment was not medically necessary.” Salim v. La. Health Serv. & Indem. Co., CIVIL 1:19-CV-00442, at *1 (W.D. La. June 13, 2022). The court held that the denial then was an abuse of discretion, and it ordered Blue Cross to pay.

Salim may have wondered if this was all finally over. It was not, however, as Blue Cross appealed to the 5th Circuit Court of Appeals. The win might be erased he feared. However, the 5th Circuit affirmed for the very reasons cited by Dr. Fuller. Salim v. La. Health Serv. & Indem. Co., No. 22-30573, at *1 (5th Cir. May 3, 2023).

Blue Cross and other insurers can be held accountable, but it takes a strong effort during the claim process to accomplish that. May you never find yourself in the unenviable position of Mr. Salim. But if you do, in this war, the battle is won during the claim process and with a pointed challenge to the precise medical standards relied on to deny the claim.

By David P. Martin

About the Author

David P. Martin

Senior & Managing Attorney

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