Aetna Could Face Class-Action Suit Over Proton Therapy Denials

by Peter Johnson

Due to a Jan. 27 federal court order, CVS Health Corp.’s Aetna health insurance division could be the defendant in a class-action lawsuit regarding Aetna’s restrictive coverage decisions in breast and prostate cancer treatment. In a lawsuit filed in Florida district court, a federal judge found that Aetna improperly denied coverage of proton therapy to cancer patients who ultimately had to pay for the treatment out of pocket. 

Proton therapy’s impact on mortality rates is still unclear 

• The plaintiffs of the lawsuit are two Aetna members who were denied prior authorization for proton therapy treatment for breast cancer and prostate cancer. According to an order for summary judgment written by U.S. District Judge Kenneth Marra, Aetna denied reimbursement for the patients’ treatment because it was not “medically necessary.” 
• Though the literature on the subject is still developing, indications are that proton therapy has gentler side effects than traditional radiation therapy but doesn’t necessarily increase a patient’s chance of survival.  
• According to Jeff Levin-Scherz, M.D., population health leader at WTW and an assistant professor at Harvard University’s school of public health, part of the reason proton therapy doesn’t get used as much as traditional radiation therapy is its high relative cost to traditional radiation therapy. For one thing, proton accelerators are expensive to build. 
• “The people that invest in these centers don’t simply want to use these for the relatively rare conditions where they’re very well proven to be effective, but also want to use them for much more common conditions,” he tells AIS. “There might be theoretical reasons why they’re better, but they might not yet be proved.” 

Class-action lawsuit could follow 

• In the order for summary judgment, Marra wrote “that Aetna considers PBRT to be ‘medically necessary’” for “radiosensitive tumors” in children and certain “brain, spine and eye sarcomas or melanomas for persons of any age.” However, Marra also noted that Aetna “considers PBRT ‘experimental and investigational for all other indications. 
• David Kaufman, a health care attorney at Laurus Law Group LLC, tells AIS that the judge “determined that the basis for the decision was wrong.” 
• “[Marra decided] the plans did not grant sufficient discretion to Aetna by clear and express language to warrant deferential treatment.” The judge “felt that the plaintiffs were able to establish that it is a medically appropriate treatment.” 
• “At the end, [Marra] ordered both parties to state their positions about what happened next, about damages and a class [of a class-action lawsuit],” Kaufman continues. While nothing has yet been filed to indicate that a class will be formed, Kaufman says that it’s a possibility. Still, Kaufman says that Aetna will be able to contest it. 
• As to the scope of the potential class, “I guess it would be national. If there are already pending cases on the same issue, sometimes they have what’s called multi-district litigation, where they combine all the cases into one and then have a lottery and select one court to hear them all. I don’t know whether that’s true in this case — that’s all speculation — but it could happen.” 

From Health Plan Weekly

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