Lawsuit against UnitedHealthcare over refusal to cover proton therapy moves forward

por John R. Fischer, Senior Reporter | March 16, 2021
Insurance Rad Oncology Proton Therapy
UnitedHealthcare allegedly administered the ERISA plans for three cancer survivors so it would not have to cover the costs of each one's proton therapy treatment
A federal judge has ruled in favor of moving forward with a potential class action lawsuit against UnitedHealthcare for its refusal to cover proton beam radiation therapy for three cancer survivors.

The suit alleges that UnitedHealthcare “deceptively and unfairly administered” the ERISA plans of all three survivors rather than cover the costs of the treatment itself “because it is more expensive than more traditional cancer treatments,” reports Reuters.

ERISA refers to a set of federal laws that are part of the Employee Retirement Income Security Act of 1974. Under this Act, employers pay employer-based plans to create clinical guidelines for judging and approving claims such as those for PT.

U.S. District Judge Allison Burroughs denied a motion Monday by UnitedHealthcare to dismiss the lawsuits on the basis of the complaint, which “plausibly alleged that defendants acted arbitrarily and capriciously” in denying coverage.

Kate Weissman of Massachusetts, and Zachary Rizzuto and Richard Cole of Florida, were each denied coverage before 2019 by UnitedHealth for PBRT to treat their respective cervical, brain, and prostate cancers. The three each filed separate suits for reimbursement, disgorgement and injunctive relief in 2019, after each paying between $85,000 and $126,000 for treatment. Their cases were consolidated last year, according to Reuters.

“Employers often don't have any clue that when they hire an insurer to administer their plans they will run into issues where their participant-employees or beneficiaries of the employees will have health or mental health claims that insurers don't want to pay. Frequently, employers defer to their insurer to handle the defense of any claims that arise from these insurer denials,” Timothy J. Rozelle, associate attorney for Kantor & Kantor, told HCB News.

ERISA plans are written in a way that incorporates insurer or third party coverage guidelines in the collection of documents used to interpret and exercise coverage based on what is a medical necessity, says Rozelle. He says that ERISA plans under most insurers are more likely to deny PT claims and that employees in these situations do not have extracontractual damages to seek under ERISA, limiting the number of lawsuits filed.

UnitedHealthcare “generally” considers PBRT to be experimental or investigational under its internal medical policy. It did, however, approve the treatment for patients younger than 19 and decided PBRT was no longer experimental for prostate cancer in 2019.

“What has always been so stunning to me is that statistically only 1.5% of all radiation-related claims made in the U.S. healthcare system annually are for proton therapy. So it is truly a wonder why insurers take such hard-line positions relating to PT especially when the science so clearly establishes PT's superiority for many cancer diagnoses over other traditional forms of radiation. I believe change will come through various forms of pressure,” said Rozelle.

The case is titled, Weissman et al. v. UnitedHealthcare Insurance Company, U.S. District Court for Massachusetts No. 19-10580.

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