The Tide Is Turning For Insureds Seeking Coverage For Proton Beam Radiation Therapy

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Proton Beam Radiation Therapy (“PBRT”) is a type of radiation cancer treatment. PRBT delivers a beam of protons directly to the cancerous tumor causing less damage to surrounding healthy tissue. Traditional radiation therapy provides for a less targeted approach, damaging surrounding tissue and causing greater side effects. Insurers have been reluctant to approve PRBT claiming that it is experimental.

It is worth noting that PBRT is more expensive than traditional radiation treatment which is why insurers are reluctant to pay for it. There has been a great deal of litigation surrounding insurers’ refusals to cover PRBT and insurers have fared well in these disputes. The tide appears to be turning based on two recent court cases.

The first case, Sharon Prolow and Mark Lemmerman v. Aetna Life InsuranceCompany, No. 20-80545-CIV-Marra, --F.Supp.3d--, 2022 WL 263165 (S.D. Fla., January 27, 2022), represents the first win on dispositive motion of individual or putative class’s ERISA claims challenging insurers’ denials of PBRT for various forms of cancer (most often in litigation it is prostate cancer that is the underlying issue). The decision also represents how courts in the Eleventh Circuit (the appellate court for the federal courts of Alabama, Georgia and Florida) may interpret ERISA standards of review and determine what constitutes a plan.

Putative class representative, Sharon Prolow was diagnosed with breast cancer in 2017 and went through a double mastectomy the following month. Less than a year later, she relapsed and had surgery for removal of her recurrent tumor followed by six cycles of chemotherapy.

Her oncologists recommended PBRT because of the lower risk of radiation-based side effects as well as lower risks of cardiac issues, given Prolow’s family history of cardiac disease. In its first denial of coverage in March 2019, Aetna said that PBRT was experimental/investigational because clinical studies had not proven that the treatment was effective for breast cancer.

Aetna’s denials relied on the application of internal Clinical Policy Bulletin 270 (CPB 270), which restricted PBRT coverage to individuals either under the age of 21 or diagnosed with a narrow range of diagnoses (certain brain, spine and eye sarcomas or melanomas for persons of any age 21).

Like Prolow, Mark Lemmerman’s oncologist recommended PBRT to treat in his case his diagnosis of localized, nonmetastatic prostate cancer found in January 2020. Aetna also denied this request stating that medical studies had not shown that PBRT is better than other radiation treatments for prostate cancer.

In analyzing the denials Aetna sent to Prolow and Lemmerman, its reliance on CPB 270 in supporting those denials, and the lack of discretionary authority contained in the applicable plan documents at issue, the Court held that Aetna’s decision to deny PBRT coverage for Prolow and Lemmerman was “de novo wrong, reflecting improper importation of CPB 270 criterion not found in the Policy terms.”

The Court further held that Aetna’s sole reliance on CPB 270—without serious consideration of the applicable plans’ definitions of “medically necessary” or “experimental/investigational” required the Court to conclude that Aetna erred in deciding that (1) Prolow’s PBRT treatment for breast cancer was experimental/ investigational and (2) that Lemmerman’s PBRT treatment for prostate cancer was not medically necessary.

The Court also held that because Aetna’s failed to incorporate language vesting it with discretionary authority in its Plan Booklets, Aetna’s decisions to deny Prolow’s and Lemmerman’s claims would be reviewed de novo by the Court. Now that Prolow and Lemmerman have prevailed on their ERISA, the case will proceed to class certification and trial.

The second case, Sandra L. Eskew, as Special Administrator of the Estate of William George Eskew v. Sierra Health and Life Insurance Company, No. A-19- 788630-C, in the Eighth Judicial District Court of the State of Nevada, on April 5, 2022, resulted in a jury award of $40 million in compensatory damages and $160 million in punitive damages against Sierra Health, a subsidiary of UnitedHealthcare, a United Health Group Company.

This case involved the denial of PRBT to William George Eskew “Bill” for the treatment of lung cancer. PRBT had been recommended by Bill’s physician at MD Anderson Cancer Center. Despite this recommendation, Sierra Health denied the request on the grounds that PRBT is “unproven and not medically necessary for treating lung cancer.” As a result, Bill underwent a more traditional form of therapy, which had been approved by Sierra Health, called Intensity-Modulated Radiation Therapy (“IMRT”).

Mrs. Eskew alleged that Bill’s esophagus, which was not the target of IMRT, was seriously damaged, causing him great difficulty eating which impacted his overall health. Bill died in March of 2017. Mrs. Eskew also alleged that Sierra Health engaged in a systematic claims process in which PRBT was automatically denied without consideration of the side effects that would result from other forms of cancer treatment. Sierra Health alleged that managed care was essential to maintain the affordability of insurance and that IMRT did not injure Bill. Sierra Health has appealed the verdict.

There is hope that insurers will begin to approve PRBT which in the long run is likely more cost efficient as it minimizes the treatment for side effects and may provide for a better quality of life for those individuals fighting cancer.

You deserve coverage for the cancer treatment you need. The attorneys at Kantor & Kantor, LLP will advocate for you. If your claim has been denied, the first step is reaching out to a knowledgeable member of our team who can direct you on the next steps. We are available to answer your questions, address your concerns, and guide you through the entire process with care and compassion.

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