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Fifth Circuit Affirms Judgment Ordering Blue Cross to Pay for Proton Beam Therapy to Treat Throat Cancer

In Salim v. Louisiana Health Service & Indemnity Company, No. 22-30573, 2023 WL 3222804 (5th Cir. May 3, 2023), an unpublished opinion, the Fifth Circuit Court of Appeals affirmed the district court’s decision finding that Louisiana Health Service & Indemnity Company’s (“Blue Cross”) denial of proton therapy to treat the plaintiff’s throat cancer was an abuse of discretion and ordering Blue Cross to provide coverage. Plaintiff-Appellee Robert Salim was diagnosed with throat cancer and his medical provider requested preauthorization for proton therapy from the Blue Cross health insurance plan administrator, AIM Specialty Health. AIM denied the treatment as not being medically necessary and relied on a guideline called “Radiation Oncology: Proton Beam Therapy” (the “Guideline”). Salim appealed to Blue Cross, which denied the appeal. It found that proton beam therapy is not considered medically necessary in adult patients with head and neck cancer. Salim filed a second-level appeal with Blue Cross. His appeal was supported by his physician, Dr. Clifton Fuller, who described three flaws in the Guideline. First, the Guideline relied on outdated and superseded policy issued by the American Society for Radiation Oncology (the “ASTRO Policy”). Second, the Guideline did not reference the National Comprehensive Cancer Network Head and Neck Guidelines (the “NCCN Policy”). And last, the Guideline cited three articles related to head and neck cancer and all three specifically endorsed the use of proton therapy for head and neck cancer. Blue Cross sent Salim’s appeal to an independent reviewer, the Medical Review Institute of America. The Institute denied the appeal on the grounds that most investigators recommend additional study before adopting proton therapy as a standard treatment option for patients with head and neck cancer and only when a patient has a lesion with significant involvement of structures at the skull base. The Institute concluded that because Salim did not have significant macroscopic disease in his skull base, the ASTRO and NCCN Policies did not support proton therapy as medically necessary.

Salim underwent proton therapy despite the denials and then sued Blue Cross for coverage. The Magistrate Judge determined that Blue Cross abused its discretion in finding that proton therapy was not the accepted standard of care for Salim’s head and neck cancer. Blue Cross appealed and argued that the district court should have treated the necessity of proton therapy as a legal question rather than a factual question. And in the alternative, it argued that substantial evidence supported its decision to deny coverage.

The Fifth Circuit explained the difference between a legal dispute, that is a dispute about a plan’s meaning, and a factual dispute, which is a dispute about a plan’s application. Regarding the latter, under abuse of discretion review, the question is whether the administrator relied on evidence that clearly supports the basis for denial. A decision will be upheld if it is reasonable. The district court correctly concluded that this case involves a factual dispute. The parties agree that the health plan only covers medically necessary treatment. The dispute involves the application of plan terms, that is, whether proton therapy was medically necessary to treat Salim’s cancer. The court rejected Blue Cross’s arguments that it gave the legally correct interpretation. The court also agreed with the district court that substantial evidence does not support Blue Cross’s decision. AIM and Blue Cross denied Salim’s claim on the basis of the Guideline. The Guideline relied on the ASTRO Policy as a nationally accepted standard. Dr. Fuller pointed out that the ASTRO Policy was updated to include proton beam therapy as both appropriate and medically necessary for Salim’s diagnosis. The updated ASTRO Policy is not competing evidence against the Guideline, rather it is superseding evidence showing that a source AIM and Blue Cross treated as reliable in fact supports Salim’s claim. The court found the Institute’s review uncompelling. It relied on a generic claim about unnamed investigators and falsely claimed the ASTRO and NCCN Policies support proton therapy for head and neck cancer only when a patient has a lesion with significant involvement of structures at the skull base. Dr. Fuller explained at length that proton therapy was appropriate and was less costly and otherwise superior to other treatment options. This satisfied Salem’s initial burden demonstrating entitlement to benefits and Blue Cross did not identify any evidence disputing Salem’s evidence. Affirmed.


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*Please note that this blog is a summary of a reported legal decision and does not constitute legal advice. This blog has not been updated to note any subsequent change in status, including whether a decision is reconsidered or vacated. The case above was handled by other law firms, but if you have questions about how the developing law impacts your ERISA benefit claim, the attorneys at Roberts Disability Law, P.C. may be able to advise you so please contact us.

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