Articles Tagged with proton therapy

Our firm is involved in litigating a proton beam cancer treatment denial case in Georgia, Ghattas v. Blue Cross Blue Shield Health Care Plan of Georgia, Inc., Case No. 1:20-CV-03157-ELR, 2020 WL 6867155 (N.D. Ga. Nov. 18, 2020). Defendants Blue Cross Blue Shield Health Care Plan of Georgia (BCBSGA) answered Plaintiff Christopher Ghattas’ Complaint alleging the wrongful denial of his life-saving proton beam radiation therapy at Emory University Proton Therapy Center for a diagnosis of brain cancer. Following Defendant’s answering of the Complaint, counsel began preparing to conduct a Rule 26(f) Conference per the Court’s Order. Prior to the setting of this conference call, counsel for BCBSGA articulated to Plaintiff’s counsel two positions: (1) that ERISA matters were exempt from the initial disclosures requirements of FRCP Rule 26 and (2) that Plaintiff—although never having received a page of the administrative record in this case nor counsel ever discussing the standard of review to be applied to this benefits denial—was not entitled to any discovery in an ERISA matter. The Court resolved these two issues as addressed in the parties’ Joint Preliminary Report to the Court.

First, the Court agreed with Plaintiff’s position that Defendant would be required to produce initial disclosures in this matter pursuant to Rule 26. Citing Golden v. Sun Life Fin., Inc., 2:08-CV-070-WKW, 2008 WL 2782736 (M.D. Ala. July 15, 2008), the Court held that “[b]ecause this [ERISA] case involves more than just the administrative  record and because the parties will be engaging in discovery, [defendant is] required to provide initial disclosures in accordance with Rule 26(a).”

Second, Plaintiff had taken the position that he was not foreclosed on any grounds from conducting targeted and limited discovery depending upon the standard of review that would apply to BCBSGA’s benefits denial. Without having produced a single page of the administrative record, BCBSGA took the position that Plaintiff was entitled to no discovery in an ERISA matter. Here, the Court agreed with Plaintiff. Citing Adams v. Hartford Life and Acc. Ins. Co., 589 F. Supp. 2d 1366 (N.D. Ga. 2008), the Court stated that it did “not agree that discovery is inappropriate here.” “In matters such as the one at hand, ‘the body of case law developed under ERISA’ requires ‘the [C]ourt, at the very least, [to] examine the facts as known to the administrator at the time the decision to deny benefits was made to determine whether the administrator’s decision was reasonable.’” Adams, 589 F. Supp. 2d at 1367. The Court held that Plaintiff was entitled to narrowly tailored discovery regarding what evidence the Plan (who claimed it was vested with discretionary authority) was aware of at the time of its decision to deny Plaintiff’s claim for proton therapy.

As we continue to learn about efforts to challenge proton therapy denials by groups such as the Proton Therapy Law Coalition, the fundamental question becomes: Will the insurers actually get the message and change their ways? A recent article suggests that even when a jury awards a large punitive damages figure against a health insurer, the carrier is likely not truly getting the message.

In November 2018, an Oklahoma jury returned a $25.5 million verdict against Aetna for improperly denying coverage for proton beam therapy, a treatment the company considered experimental. In the largest verdict for bad faith in U.S. history, the jury found that Aetna “recklessly disregarded its duty to deal fairly and act in good faith” and awarded punitive damages. During the course of deliberations, the jury specifically discussed “sending a message” to Aetna and “making a statement” so Aetna would reevaluate how it handles appeals and requests for coverage.

However, many large insurance companies, if state allows them to, carry their own liability insurance for just this occasion. It appears that about 20 states do not allow insurers to carry such liability coverage. But insurers are now turning to products sold by offshore insurers beyond the reach of state regulators. In other words, a lot of insurers are not directly paying for the punitive damages awarded against them. This undermines the importance and impact of large jury verdicts on effectuating changed insurer practices.

Kate Weissman is willing to brave litigation with a $150 billion health insurance company to bring about change in our healthcare system. On March 26, 2019, Ms. Weissman filed a class action lawsuit to challenge what she alleges to be UnitedHealthcare’s unfair and deceptive policies and procedures for determining whether a prescribed treatment or medication is medically necessary (utilization review). Ms. Weissman alleges that UnitedHealthcare’s utilization review process is skewed toward the denial of coverage based upon inadequate internal medical policies placed in the hands of unqualified medical directors.  This alleged institutional pattern and practice of wrongful conduct results in the systematic denial of coverage for medically necessary proton beam radiation therapy (“PBT “) for UnitedHealthcare’s insured members suffering with cancer, while offering coverage for far less expensive, though far more harmful, conventional radiation treatment.

In October 2015, 30-year-old Ms. Weissman was diagnosed with stage IIB cervical cancer. After various treatments and a relentless battle for her life, her doctors from Massachusetts General Hospital recommended PBT to avoid grave damage to surrounding tissue and organs. On April 6, 2016, UnitedHealthcare denied coverage, contending that PBT is experimental or investigational or unproven. Ms. Weissman alleges that PBT is an established form of treatment that is widely accepted by physicians, government agencies and many insurers and other payers, including Medicare and Medicaid. UnitedHealthcare relied on its own internal policies, as interpreted and applied to Ms. Weissman’s case by UnitedHealthcare’s medical directors, in denying coverage for PBT.  UnitedHealthcare would only agree to cover the more conventional intensity-modulated radiation therapy, which is about half the cost of PBT.

Ms. Weissman, who volunteers with Cervivor to advocate for the cervical cancer community, recognizes that she was fortunate enough to have the $95,000.00 to pay for the proton beam treatment ordered by her doctors so that she would not have to settle for the more dangerous and damaging conventional treatment. She is now fighting for those who cannot afford that choice.

A recent 2018 American Society of Radiation Oncology (ASTRO) study published findings about insurance approval and appeal outcomes at a large-volume proton therapy center, one of the estimated 111 proton therapy centers worldwide. The study showed that proton therapy prior authorization rates were substantially higher for Medicare patients vs. privately insured patients — 91% vs. 30% approval on initial request, at a median 3 days and 14 days from inquiry to determination.

Of the 306 patients initially denied coverage, 276 appealed the decision, and denial was overturned for 189 patients (68%; median time, 21 days from initial inquiry).

It is absolutely essential that proton therapy providers put together strong appeal letters for their patients to increase the chances that insurance decisions are overturned during the administrative claims/appeals review process.  If a patient is insured under an ERISA-governed plan then the administrative record becomes, in some cases, the only evidence that a court can examine if proton therapy is denied on appeal leading to civil litigation.

Insurance is our safety net.

It’s our protection against the unthinkable. Our first line of defense when something goes wrong. Our safeguard for our health and our finances. Our security for our family and our homes. Our precaution against all the “what ifs.” Our surety in protection of our resources and access to healthcare and treatment.

On paper, health insurance sounds pretty anticipative and hopeful. It sounds like if an illness or tragedy were to strike, things would be okay in the end – because someone would be there to catch you. But the harsh reality seems to be a security net with many holes and many flaws. In the hands of insurance companies, so many people seem to be falling through the holes of the net, slipping through the worn out spaces, and some even missing the net completely as they fall.

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