Cancer Survivor Sues Blue Cross Blue Shield for Wrongful Denial of Cancer Treatment

Roslyn Gonzalez was out of options when she decided on her cancer treatment. Blue Cross Blue Shield of Texas (BCBS) chose to save a few thousand dollars to ensure more profits for its shareholders. In doing so, it denied Ms. Gonzalez a safer course of treatment and ensured that she would never bear children.

Ms. Gonzalez was a lawyer for the U.S. Department of Homeland Security and the Army Corps of Engineers. As a federal employee, she was provided health insurance through the Federal Employees Health Benefits Act (FEHBA). Although the U.S. Office of Personnel Management (OPM) is responsible for administering the federal employee health plans, the OPM contracted with BCBS to issue and administer the health plans, leaving BCBS responsible for deciding what health care services to cover and how much to pay for them. As a federal employee covered by FEHBA, Ms. Gonzalez should have been covered for all medically necessary treatment if she was ill or injured. Like so many other cancer patients who depend on insurance companies like BCBS, that promise of coverage was nothing more than an illusion. 

One year ago today, on August 13, 2019, Ms. Gonzalez was overwhelmed with fear and anxiety as she underwent a biopsy of what was revealed to be a softball-sized tumor in her left lower abdomen, next to critical muscle tissue and the descending colon. She was diagnosed with atypical lipomatous tumor of the left retroperitoneum. She was shaken to her core as she came to grips with her new reality and the uncertain future. Unfortunately for Ms. Gonzalez, the diagnosis was only the first blow. 

Ms. Gonzalez was referred to the world-renowned MD Anderson Cancer Center  in Houston, where her oncology team went to work. They described a type of radiation treatment called Proton Beam Therapy Radiation (PBT) that is safer and more effective than traditional radiation for her tumor, which was located near healthy tissue and vital organs, including her reproductive organs. PBT is an established form of cancer treatment accepted by doctors, government agencies, and government payers, including Medicare and Medicaid. There is overwhelming evidence that PBT is safe, effective, and less damaging to surrounding organs. It is an accepted standard of medical practice for the treatment of cancer. For BCBS, however, only one thing mattered – it was too expensive.

Despite her doctors’ recommendations and multiple levels of overwhelming appeals, Ms. Gonzalez was denied PBT. BCBS claimed that PBT was “experimental and investigational.” MD Anderson experts pushed back, insisting that Ms. Gonzalez had to undergo radiation immediately to stop the tumor’s growth and warning BCBS of the grave and potentially life-threatening danger if Ms. Gonzalez had traditional radiation treatment. BCBS did not care.

Ms. Gonzalez and her husband pooled all of their resources and they tried desperately to raise the rest of the $167,000 needed for the PBT, but it was too late. If she did not start radiation treatment had to begin, the cancer would inflict greater damage. In an effort to save her life, Ms. Gonzalez made the difficult decision to undergo the radiation treatment her doctors had discouraged. Today, she is still alive. She has difficulty walking due to nerve damage in her leg. She can no longer have children.

But BCBS’s behavior is even worse when you learn more. If Ms. Gonzalez had been an employee of the University of Texas System, BCBS would have covered proton beam therapy. At the same time BCBS was denying Ms. Gonzalez’ treatment, it was concluding a successful three-year pilot project that covered all University of Texas employees for whom PBT was recommended. The pilot project demonstrated the safety and efficacy of PBT, as well as actual cost-savings over time due to not having to treat secondary cancers and other side effects of traditional radiation. BCBS never claimed that any University of Texas employees were undergoing “unnecessary”, “experimental”, or “investigational” treatment, but they denied Ms. Gonzalez for those reasons.  

BCBS cannot be allowed to put profit over lives. That is why, on August 13, 2020, one year from the day of her fateful biopsy, Ms. Gonzalez filed a Class Action Lawsuit against BCBS for its bad faith denial of coverage for proton beam therapy. Ms. Gonzalez will take BCBS to task for its unfair and deceptive policies and procedures for determining whether a prescribed PBT is medically necessary. She seeks an injunction that the OPM order BCBS to perform its contract in good faith and change its practice of denying PBT for cancer patients who need it.

The lawsuit was filed in the United States District Court, Northern District of Texas on behalf of Ms. Gonzalez by her attorneys, Amar Raval of Berg, Plummer, Johnson & Raval LLP, and Richard Collins and Damon Eisenbrey of Callahan & Blaine in Santa Ana, California.

How Can an ERISA Plaintiff Recover Attorneys’ Fees in the Fifth Circuit?

On June 29, 2020, the Fifth Circuit Court of Appeals – in Katherine P. v. Humana, an ERISA health benefits case where the plan administrator denied benefits – ruled against our client, Katherine P., concluding that she was not currently entitled to attorneys’ fees. This ruling came one month after the same court ruled in favor of Katherine, reinstating her case and sending us back for a bench trial later this year. How did we get here, and what does it mean for other ERISA plaintiffs in the Fifth Circuit?

Factual Background

In 2012, Katherine was a 21-year-old who was suffering from a severe eating disorder, related physical ailments, and bipolar disorder. When she followed the advice of her doctors and sought a more intensive partial hospitalization treatment protocol for her mental health disorders, Humana initially approved this treatment under her plan, which promises to pay for all medically necessary mental health treatment. But after only 12 days, and without examining Katherine or speaking with her treating providers, Humana determined that this treatment was no longer medically necessary. It immediately stopped paying for the treatment, leaving Katherine and her family financially responsible for the rest of her treatment. Fortunately, they were able to personally pay for the final two and a half months of treatment.

Katherine filed an appeal with Humana, providing all of her medical records, plus other evidence showing that her treatment was medically necessary. Humana denied the appeal, forcing Katherine to file this lawsuit in February 2014.

The Mihalik Criteria v. The Plan

The central issue in this case is whether Katherine’s ongoing treatment was medically necessary. The Plan defines medically necessary as “health care services that a health care practitioner exercising prudent clinical judgment would provide” that are “[i]n accordance with nationally recognized standards of medical practice,” “clinically appropriate,” “[n]ot primarily for the convenience of the patient” or her providers, and “[n]ot more costly than an alternative” that would be just as effective. “Medically necessary” services must also have a grounding in “standards that are based on credible scientific evidence.”

Rather than rely on the Plan, Humana instead relied on something called the Mihalik Criteria, a set of guidelines created for the insurance industry that it has tried to keep secret from the public. The Criteria provide four factors for determining if partial hospitalization is medically necessary. Per the criteria, partial hospitalization is medically necessary if a patient meets the first two factors (ED.PM.1 and ED.PM.2) and either one of the last two (ED.PM.3 and ED.PM.4). Humana determined that Katherine did not meet two of these criteria. The district court granted Humana summary judgment, concluding that Katherine failed ED.PM.3 and the ED.PM.4.2 sub-criteria.

Fifth Circuit’s Analysis

In this lawsuit, Katherine argued that Humana’s medical record reviewers were biased, unqualified, and used improper criteria in reviewing the claim. In the May 14, 2020 opinion, the Fifth Circuit found evidence that there was a genuine dispute about whether Katherine met the ED.PM.4.2 sub-criteria. The ED.PM.4.2 requires that a patient show that “[t]reatment at a less intense level of care has been unsuccessful in controlling” her eating disorder. The Court found evidence that Katherine met that requirement. For example, in her last appeal to Humana, Katherine provided a declaration describing her history of failed treatment. In it, she listed past failed treatment regimens, including outpatient treatment. Her mother likewise provided a declaration with the same evidence. Furthermore, Katherine’s physicians said she was “unable to follow a weight gain meal plan and to abstain from symptoms of purging and restricting while she was at a lower level of care.” The Court noted that although it would not give her doctors’ opinions “special weight,” it was competent summary judgment evidence.

The Court found that summary judgment for Humana was inappropriate. it thus remanded the case back to the district court for a bench trial. The district court will have the ability to decide exactly how this trial will proceed. For instance, it could have oral argument, review the administrative record, then make findings of fact and conclusions of law.

The Attorneys’ Fee Issue

Based on the Court’s May ruling, Katherine filed a motion for her attorneys’ fees. Under ERISA, a court may award attorneys’ fees “in its discretion”. 29 U.S.C. §1132(g)(1). The party seeking fees does not have to be a prevailing party, and it is entitled to fees if it can show “some degree of success on the merits”. Because Katherine’s case was revived from the dead and remanded back for a bench trial, she sought her reasonable attorney’ fees for the successful appeal. Humana responded by personally attacking Katherine’s lawyers, arguing that the case was driven by their greed and that their rates were unreasonably high.

On June 29, the Fifth Circuit concluded that its discretion to award attorneys’ fees under these facts was limited. In denying Katherine’s motion, the Court stated that Katherine had not achieved any success on the merits: her victory was “purely procedural” because the Court was simply allowing her to proceed forward with her claim.

Consequences for Future ERISA Attorneys’ Fees Cases

The decision of the Fifth Court in this case shows a lack of willingness to award attorneys’ fees to plaintiffs when they successfully fight off summary judgment in appeal. Although the Court noted some factual arguments that might justify Katherine’s success at trial, it would not award attorneys’ fees for keeping the case alive to actually get to trial.

What does this mean for other ERISA plaintiffs in the Fifth Circuit? Unless you are a prevailing party on the merits of your case, your chances of recovering your attorneys’ fees are not great. After all, the Court already ruled last year that overturning 26 years of caselaw and fundamentally changing the standard of review in the Fifth Circuit was not enough to justify attorneys’ fees. (“Securing a change in the standard of judicial review of Humana’s factual determinations is certainly a procedural success, but it’s not success on the merits of Ariana’s benefits claim.”). Ariana M. v. Humana Health Plan of Tex., Inc., 792 F. App’x 287, 290 (5th Cir. 2019), cert. denied, 591 U.S. ____ (U.S. June 22, 2020) (No. 19-980).

There is a Circuit split on when ERISA plaintiffs can recover attorneys’ fees after winning at the appellate level. The U.S. Supreme Court has decided that issue is not currently ripe, but perhaps it will change its mind in time. Although the Fifth Circuit has shifted to a broader, more participant-friendly standard of review, ERISA plan participants in the Fifth Circuit must remind courts that ERISA’s purpose is to protect the interests of employees.

In the meantime, Katherine’s case proceeds to trial. At trial, the district will get a second chance to review whether Katherine’s partial hospitalization treatment was medically necessary. Humana had previously approved only 12 days out of Katherine’s nearly three month stay. If Katherine “achieves some success on the merits on remand, she may ask for these fees then.” Katherine P. v. Humana, June 29, 2020.

FIfth Circuit Remands ERISA Eating Disorder Case for Bench Trial

On May 14, 2020, the Fifth Circuit Court of Appeals – in Katherine P. v. Humana, an ERISA health benefits case where the plan administrator denied benefits — ruled in favor of our plan participant client, Katherine P., sending us back for a bench trial later this year. At trial, the district will get a second chance to review whether Katherine’s partial hospitalization treatment was medically necessary. Humana had previously approved only 12 days out of Katherine’s nearly three month stay.

In coming to this decision, the Court applied the de novo standard of review that was previously modified in Ariana M. v. Humana. When a court applies the de novo standard of review, it does not defer to the decision of the ERISA benefits plan administrator. It considers the issue as though it were doing so with a “blank slate”.

Link to oral argument by Mr. Raval:
http://www.ca5.uscourts.gov/OralArgRecordings/19/19-50276_2-5-2020.MP3

Factual Background

In 2012, Katherine was a 21-year-old who was suffering from a severe eating disorder, related physical ailments, and bipolar disorder. When she followed the advice of her doctors and sought a more intensive partial hospitalization treatment protocol for her mental health disorders, Humana initially approved this treatment under her plan, which promises to pay for all medically necessary mental health treatment. After only 12 days, however, and without examining Katherine or speaking with her treating providers, Humana determined that this treatment was no longer medically necessary. It immediately stopped paying for the treatment, leaving Katherine and her family financially responsible for any further treatment. Fortunately, they were able to personally pay for the final two and a half months of treatment.

Katherine filed an appeal with Humana, providing all of her medical records, as well as other evidence showing that her treatment was medically necessary. Humana denied the appeal, forcing Katherine to file this lawsuit in February 2014. The case has taken many twists and turns: it has transferred from one district to another, had two separate rounds of summary judgment briefing, been on hold while part of the claim was remanded back to Humana, and then appealed to the United States Court of Appeals for the Fifth Circuit.

Humana Used Mihalik Criteria to Deny Claim

The central issue in this case is whether Katherine’s ongoing treatment was medically necessary. The Plan defines medically necessary as “health care services that a health care practitioner exercising prudent clinical judgment would provide” that are “[i]n accordance with nationally recognized standards of medical practice,” “clinically appropriate,” “[n]ot primarily for the convenience of the patient” or her providers, and “[n]ot more costly than an alternative” that would be just as effective. “Medically necessary” services must also have a grounding in “standards that are based on credible scientific evidence.”

Rather than rely on Plan language, Humana instead relied on something called the Mihalik Criteria, a set of guidelines created for the insurance industry that it has tried to keep secret from the public. The Criteria provide four factors for determining if partial hospitalization is medically necessary. Per the criteria, partial hospitalization is medically necessary if a patient meets the first two factors (ED.PM.1 and ED.PM.2) and either one of the last two (ED.PM.3 and ED.PM.4). Humana determined that Katherine did not meet two of these criteria. The district court granted Humana summary judgment, concluding that Katherine failed ED.PM.3 and the ED.PM.4.2 sub-criteria.

Fifth Circuit’s Analysis

On appeal, Katherine argued that Humana’s medical record reviewers were biased, unqualified, and used improper criteria in reviewing the claim. The Fifth Circuit did not address those issues. However, it found evidence that there was a genuine dispute about whether Katherine met the ED.PM.4.2 sub-criteria.

The ED.PM.4.2 requires that a patient show that “[t]reatment at a less intense level of care has been unsuccessful in controlling” her eating disorder. The Court found evidence that Katherine met that requirement. For example, in her last appeal to Humana, Katherine provided a declaration describing her history of failed treatment. In it, she listed past failed treatment regimens, including outpatient treatment. Her mother likewise provided a declaration with the same evidence. Furthermore, Katherine’s physicians said she was “unable to follow a weight gain meal plan and to abstain from symptoms of purging and restricting while she was at a lower level of care.” The Court noted that although it would not give her doctors’ opinions “special weight,” it was competent summary judgment evidence.

The Path Forward

The Court found that summary judgment for Humana was inappropriate. it thus remanded the case back to the district court for a bench trial. The district court will have the ability to decide exactly how this trial will proceed. For instance, it could have oral argument, review the administrative record, then make findings of fact and conclusions of law.

Consequences for Future ERISA Denial of Benefits Cases

The decision of the Fifth Court in this case shows a willingness for the Court to conduct an exhaustive and careful de novo review of the facts of these types of claims. It shows an ongoing trend that ERISA plan participants in the Fifth Circuit will have their benefits determination assessed as though it were being presented for the very first time. The court will not defer to the decision of the plan administrator. Instead, the court will consider the evidence with fresh eyes.

In light of this shift from a stricter to a broader, more participant-friendly standard, ERISA plan participants in the Fifth Circuit will be in a more advantageous position when having their denial of benefits claim evaluated in court. This approach better serves the purpose of ERISA, which is to protect the interests of employees. It has already helped Katherine, who will finally have the chance to have her day in court.

Link to Full Opinion:

Katherine P. v. Humana Health Plan of Texas, Inc.

UnitedHealthcare Level of Care Guidelines Criticized Again

Last week, another court weighed in on UnitedHealthcare’s use of its Level of Care Guidelines in the use of residential treatment claims. In Bain v. United Healthcare Inc., No. 15-CV-03305-EMC (N.D. Cal. Feb. 15, 2020), the court ruled that it is settled law that UnitedHealthcare’s use of its Level of Care Guidelines were motivated by its own financial self interest.

The Bains sought residential treatment benefits for their daughter under a group health plan administered by United Behavioral Health.  UBH denied the treatment based on a lack of medical necessity. After the Bains exhausted all internal appeals, they filed suit. The parties filed cross-motions for summary judgment on the Bains’ claim for benefits under ERISA 502(a)(1)(B). 

The Bains first argued that the legal principle of collateral estoppel should apply on the issue of liability. Put another way, UBH should not be able to contest that its Level of Care Guidelines were found by the Wit court to be inconsistent with standards of care generally accepted in the mental health field.  The court rejected this approach. 

However, the court found that collateral estoppel applied to the “significant skepticism” to give to UBH’s benefit decision due to its financial conflict of interest. The court explained that even if was not immediately clear how UBH applied its Level of Care Guidelines in this case, the finding in Wit was reason to apply “a healthy amount of skepticism” to the standard of review.

The court concluded that UBH abused its discretion by denying the Bains’ benefits. It then remanded the claim back to UBH because it could not determine if the Bains are entitled to benefits based on valid guidelines or other criteria. 

What’s the takeaway lesson? If you have a UnitedHealthcare health insurance claim, and it is using the Level of Care Guidelines in your claim, there is legal authority you must know before you can adequately respond.

At Berg Plummer Johnson & Raval, we have represented clients whose health insurance claims have been denied by UnitedHealthcare. If your health insurance claim has been denied, it’s vital that you connect with a qualified attorney as soon as possible so that the claims can be properly evaluated. Get in touch with an experienced health insurance attorney here at Berg Plummer Johnson & Raval, LLP for assistance with your health insurance claim.

Court in Fifth Circuit Applies De Novo Review in Long Term Disability Case

At Berg Plummer Johnson & Raval, we monitor cases that affect our clients’ rights, including those involving long term disability claims. The following case shows how the Fifth Circuit’s new way of reviewing ERISA cases, changed in Ariana M. v. Humana in 2018, is applied in district court.

The case of Pike v. Hartford Life and Accident Insurance Company, __F.Supp.3d__, 2019 WL 1375178 (E.D. Tex. Mar. 27, 2019) is one of the most extensively briefed disability cases under the new de novo standard of review. Ms. Pike suffered from chronic back pain and degenerative disc disease, After eight years of paying the claim, Hartford terminated it, arguing that Ms. Pike was now able to work in other occupations. After the parties submitted their briefs and participated in a 2 hour oral hearing, the Court issued a detailed opinion in favor of Ms. Pike. Hartford then filed 5 main objections: (1) the report misstated the insurance policy’s definition of “disability”, (2) the report relied on old medical records to support its conclusion that Ms. Pike was still disabled, (3) the report applied a “treating physician rule” that favored Ms. Pike’s physicians over Hartford’s, (4) the report relied on Ms. Pike’s subjective complaints of pain instead of “objective medical evidence”, and (5) the report improperly “cherry-picked” from the administrative record.

The Court rejected all of Hartford’s arguments. In doing so, it cited to evidence that it found more probative than Hartford’s evidence. The Court also cited to cases that explained the nature of de novo review and how it is to be applied in this context. Under de novo review, its role is to independently weigh the facts and opinions to determine if Ms. Pike met her burden to show she was disabled under the terms of the Hartford policy. Hartford’s previous decision to terminate Ms. Pike’s claim did not get any deference. This means the Court must resolve material questions of fact, assess expert credibility, and weigh the evidence.

What’s the takeaway lesson? The ripples from Ariana M. continue to resonate in the district courts. Insurance companies who deny disability claims are no longer getting the benefit of doubt, and courts are making independent determinations. This helps further the goal of ERISA, which is to protect the interest of employees.

Contact a Houston Disability Insurance Lawyer Today

If you have had your legitimate disability insurance claim wrongfully denied by an insurer, undervalued, or unreasonably delayed, then it’s important to get in touch with an experienced Texas disability insurance attorney here at Berg Plummer Johnson & Raval, LLP for assistance. With the aid of a qualified attorney, you can effectively and timely appeal the denial of benefits. If the internal appeal is unsuccessful, we are prepared to represent you in court.

Proton Therapy Treatment Approved After Insurer Initially Denied Claim

Proton Therapy Treatment Approved After Insurer Initially Denied Claim

There is a tension in the American health care system between innovative medical procedures designed to save or prolong patients’ lives against the financial costs of that treatment. This tension has long simmered in proton therapy treatment of cancer. Standard radiation therapy has improved over the years and effectively controls many cancers. However, X-ray beams tend to deliver radiation to healthy tissues along with the tumor site. It can damage the normal tissue or organs near the tumor. The advantage of proton therapy is that the beam can be specifically targeted to conform to the shape and depth of a tumor, sparing healthy tissues and organs. It is cleared by the FDA and approved by Medicare as an effective treatment for cancer.

MD Anderson Cancer Center in Houston has pioneered the use of proton therapy and is one of the only centers in the world offering this type of targeted cancer treatment. Even though many patients travel from around the world to benefit from proton therapy, many local patients benefit from the treatment as well. Randy Montgomery was one of those people. Born and raised in Texas, Mr. Montgomery was a former country radio show host and voice-over actor in commercials. He depended and relied on his voice for his profession. In 2017, he got the news that too many people get: he was diagnosed with oral cancer.

After multiple tests, Mr. Montgomery learned that traditional radiation therapy would destroy healthy tissue in his neck and throat, potentially damaging his taste buds, jaw, thyroid, and voice box. However, proton therapy would avoid all of those harmful side effects.  Mr. Montgomery applied for coverage of this treatment with Blue Cross Blue Shield (“BCBS”), his health insurance company. BCBS denied the claim, contending that proton therapy was “unproven”. It then denied three different rounds of appeals from Mr. Montgomery and the cancer experts at MD Anderson. Mr. Montgomery was forced to pay for 33 treatments out of his own pocket.

With few options left, Mr. Montgomery turned to his state representative for assistance. The representative requested that the Texas Department of Insurance look into the matter. Not long afterwards, BCBS paid for 27 of the 33 proton therapy treatments. But before long, BCBS reversed its decision, claiming that it made the payments “in error”. This falls in line with statistics from the Alliance for Proton Therapy’s research showing that insurance companies deny 2 out of every 3 claims for proton therapy treatment.

Mr. Montgomery refused to quit. He wrote an article in the Houston Chronicle about his struggle that was published on September 26, 2018[1]. His story was also picked up by other news sources[2]. Five days later, BCBS finally approved his proton therapy treatment.

At Berg Plummer Johnson & Raval, we have represented clients whose claims for proton therapy treatment have been denied. Whether you have been denied coverage for proton therapy treatment or another medical procedure, it’s vital that you connect with a qualified attorney as soon as possible so that the claims at-issue can be properly evaluated.  Get in touch with an experienced health insurance attorney here at Berg Plummer Johnson & Raval, LLP for assistance with your health insurance claim.

Amar Raval

Berg Plummer Johnson & Raval, LLP

araval@bergplummer.com

[1] https://www.houstonchronicle.com/opinion/outlook/article/My-cancer-lost-but-my-insurer-is-winning-in-13258326.php?cmpid=gsa-chron-result

[2]  https://www.texomashomepage.com/news/local-news/local-man-fights-insurance-company-over-payment-of-cancer-treatment/1480053198

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