According to a ruling upheld by the Fifth Circuit, Blue Cross is required to pay for proton beam therapy to treat throat cancer. The district court’s ruling that Louisiana Health Service & Indemnity Company’s (“Blue Cross”) refusal to cover proton therapy to treat the plaintiff’s throat cancer was an abuse of discretion. It ordered Blue Cross to provide coverage in Salim v. Louisiana Health Service & Indemnity Company, No. 22-30573, 2023 WL 3222804 (5th Cir. May 3, 2023).
When throat cancer was discovered in the plaintiff-appellant Robert Salim, his doctor asked the Blue Cross health insurance plan administrator, AIM Specialty Health, for preauthorization for proton therapy. AIM cited the “Radiation Oncology: Proton Beam Therapy” guideline (the “Guideline”) to reject the therapy as not being medically essential. Salim filed an appeal with Blue Cross, which was rejected. It was discovered that adult patients with head and neck cancer are not considered for proton beam therapy.
Blue Cross received a second-level appeal from Alim. His physician, Dr. Clifton Fuller, who outlined three issues with the Guideline, supported his appeal. The first problem was that the Guideline was based on an old, outmoded policy from the American Society for Radiation Oncology (the “ASTRO Policy”). Second, the National Comprehensive Cancer Network Head and Neck Guidelines (the “NCCN Policy”) were not mentioned in the guideline. Last but not least, the Guideline mentioned three articles on head and neck cancer, all of which expressly supported the use of proton treatment for cancer.
Salim’s appeal was forwarded by Blue Cross to the Medical Review Institute of America, an impartial examiner. The Institute rejected the appeal on the grounds that the majority of researchers advise more research before proton therapy is accepted as a regular option for treating patients with head and neck cancer, and only when a patient has a lesion that significantly involves structures at the base of the skull. The Institute came to the conclusion that the ASTRO and NCCN Policies did not support proton therapy as being medically essential for Salim because there was no severe macroscopic illness in the base of his skull.
Despite the denials, Salim had proton therapy and then sued Blue Cross for insurance coverage. By concluding that proton treatment was not the acknowledged standard of care for Salim’s head and neck cancer, the Magistrate Judge found that Blue Cross had abused its discretion. In its appeal, Blue Cross claimed that the district court erred in treating the need for proton therapy as a legal rather than a factual issue. Additionally, it countered that its decision to refuse coverage was supported by strong evidence.
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