Exclusionary clauses for experimental or investigational treatment may either be included under the “medically necessary” provision of a medical policy or as a separate exclusionary clause in the plan. Either way, exclusions for experimental treatments provide yet another obstacle in getting certain medical claims paid under ERISA plans. In cases where benefits are denied as experimental or investigational in nature, courts are often called upon to interpret whether the language governing the experimental exclusion is ambiguous or whether the insurance company’s denial under the provision was arbitrary and capricious.
The standard for what is “experimental” must be defined in the plan and cannot be “a floating standard which could rise or fall in any fact situation.” Bucci v. Blue Cross-Blue Shield of Connecticut, Inc., 764 F.Supp. 728, 733 (D.Conn. 1991). Courts may also look to the body of the medical community’s acceptance in determining whether a treatment is experimental. An insurer’s failure to consider whether a relevant segment of the medical community accepts a procedure as being within a range of appropriate medical treatment may suggest an arbitrary and capricious review of a claim. The Bucci court analogized this review to the malpractice setting, stating, “If the contemporary standards of the medical community would deem the treatment applied or used in the circumstances of the particular case, as consistent with the exercise of medical judgment, in the view of a reasonable number of practitioners qualified to treat the malady in question, then the treatment must be found to be accepted medical practice. If such were the case, then a finding that the treatment was not so accepted could only be arbitrary and capricious.” Because the standard for experimental treatment relied upon by the plan administrator was not clearly defined in the plan, the court determined that the denial was arbitrary and capricious.
The 7th Circuit Court of Appeals recognized the troubling nature of courts of law making social and ethical decisions as to which plaintiff will receive what treatment under their health benefits plan. Fuja v. Benefit Trust Life Insurance Company, 18F.3d. 1405 (7th Cir.1994). In the Fuja opinion, penned in 1994, Judge Coffey suggested the establishment of a “regional cooperative committee comprised of oncologists, internists, surgeons, experts in medical ethics, medical school administrators, economists, representatives of the insurance industry, patient advocates and politicians. Through such a collective task force perhaps some consensus might be reached concerning the definition of experimental procedures, as well as agreement on the procedures…” No such committee has been established, and health benefit plans continue to narrowly tailor policy language to exclude treatments as being medically unnecessary or experimental and to grant their plan administrators discretionary authority to make final decisions regarding whether a claimant will receive treatment that may provide enormous benefit or even save their life.
If your insurance company denied your medical claim, arguing that the procedure or treatment was experimental, contact the O’Ryan Law Firm toll free at (855) 778-5055 to discuss your claim further.