Accused of wrongfully denying coverage for proton therapy, Aetna Life Insurance Co. has agreed to pay a settlement of $3.4 million to 142 cancer patients collectively in the suit, Molloy v. Aetna.

Patients who were denied coverage but could not or chose not pay out-of-pocket are entitled to at least $10,000. Those denied who paid out-of-pocket can receive up to $24,000 with proof of their expenses. Separately, patients can seek up to $1.5 million to cover counsel fees and expenses, according to reported Bloomberg Law.

Rich Collins, a partner at Arnall Golden Gregory with 25 years in healthcare litigation, told HCB News that these cases are the “catalyst for change” that are making insurers reconsider their stance on proton therapy.

“I have seen over the past five years since we started litigating these cases that a number of insurers have revised their guidelines to allow for greater utilization of proton therapy for more types of cancer diagnoses. I view each revision as the insurers’ incremental concession of their losing basis for denying coverage,” he said.

Numerous studies have illustrated proton therapy's efficacy in treating various cancers. The treatment is generally covered by Medicare, according to Mayo Clinic, and universally covered by commercial insurers for children.

But for years, commercial insurers have limited coverage for adults to only a small number of indications, saying the treatment's results are comparable to that of conventional radiotherapy in some cases and calling it "experimental and investigational" and not "medically necessary." It also costs at least twice as much as the latter, say experts in the field.

In the last few years, several payers — UnitedHealthcare, Humana Insurance Co., Blue Shield of California, Blue Cross Blue Shield of North Carolina — have been hit with lawsuits for their denials. Many have been successful, putting more pressure on them to expand coverage guidelines.

Numerous studies have illustrated that proton therapy, which precisely targets cancerous lesions and causes less damage to nearby tissue than conventional radiotherapy, yields superior results for many indications. The treatment is generally covered by Medicare, according to Mayo Clinic, and universally covered by commercial insurers for children.

But for years, commercial insurers have limited coverage for adults to only a small number of indications, saying its results in certain cases are comparable to radiotherapy and calling it "experimental and investigational" and not "medically necessary." Studies also show that the price is at least twice that of radiotherapy.

“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 hardline positions relating to PT especially when the science so clearly establishes PT's superiority for many cancer diagnoses over other traditional forms of radiation," Timothy J. Rozelle, associate attorney for Kantor & Kantor, told HCB News in 2021.

Molloy v. Aetna
Paul Molloy and his wife, Jacqueline filed their suit against Aetna in the U.S. District Court for the Eastern District of Pennsylvania in 2020 after it refused to cover proton therapy to treat his brain tumor. The insurer described the treatment as "experimental and investigational" and not medically necessary.

According to the case, Aetna refused to cover the treatment for 142 patients between June 2017 and October 2020. Aetna filed a motion to dismiss the case in 2019. But Judge Cynthia M. Rufe has not made a decision on that request yet, nor on the settlement agreement.

Shortly after the suit was filed, the health insurer expanded the number of conditions for which proton therapy was covered, according to Bloomberg Law.

The health insurer lost a similar case in 2022 against a non-metastatic breast cancer patient and a prostate cancer patient. Aetna argued that proton therapy did not meet its definition of "medically necessary," but failed to justify how it did not, according to the judge.

Collins says that the current Aetna case, unlike other lawsuits, was not litigated long, with no depositions or expert witness testimonies. "I believe Aetna recognized that it is time for insurers to move on from the unduly restrictive proton therapy utilization guidelines that invite wrongful denials and consequential litigation, and to instead focus on a favorable financial solution," he said.

As part of the settlement, both Paul and Jacqueling will receive an additional $25,000 each.

Affordable access in the future
Several initiatives underway are also expected to propel insurers to expand coverage. President Joe Biden's Cancer Moonshot initiative, for example, aims to reduce the cancer death rate by half within 25 years by accelerating cancer research and fostering greater collaboration. As a result, scientists will be able to add new findings to the growing amount of evidence that further supports the use of proton therapy.

This, along with more successful litigation, will make it more challenging and financially draining from legal expenses for insurers to continue to deny coverage and force them to reevaluate and expand their policy guidelines, says Collins.

“I believe over the next five years, commercial insurers will be focusing less on their proton therapy utilization guidelines, and focusing more on their reimbursement policies, developing alternative payment models that allow for greater access to proton therapy without the concomitant increase in medical loss ratios and premiums that insurers always bemoan when defending their inadequate guidelines,” he said.

If true, then lawsuits like Molloy v. Aetna can be considered a driving force for increasing the number of patients who not just qualify but can affordably undergo proton therapy, raising questions about what the future of cancer care and survival will look like in both the near future and long-term.