A U.S. District Court judge in Connecticut has certified a class action against Aetna Inc. in connection with allegations that the company systematically denied insurance coverage for transcranial magnetic stimulation to treat severe depression.
In her May 4 decision, Judge Janet Hall granted class certification for anyone whose TMS claims were rejected by Aetna as experimental or investigational treatment between Sept. 3, 2009, and July 29, 2016. In the same order, Hall rejected a request to issue an injunction against Aetna and class certification for anyone whose claims may be denied in the future.
The class will consist of at least 458 people who received TMS treatment and whose claims were denied by Aetna based on an exclusion for experimental or investigational treatment. The class will also include 646 people whose requests for pre-authorization for TMS services were denied.
Hall also appointed plaintiff Christopher Meidl as class representative and appointed Zuckerman Spaeder and Psych-Appeal Inc. as co-lead counsel. Meidl’s request for coverage and subsequent appeals were denied by Aetna, according to the underlying lawsuit, which also targets MCMC L.L.C.
In the lawsuit, Meidl claims Aetna’s TMS policy violated its fiduciary obligations under the Employee Retirement Income Security Act, Aetna violated the terms of the class members’ health plans, and the insurance provider unjustly enriched itself.
“The underlying merits, we believe, is that Aetna was applying an improper standard for determining whether a procedure was experimental or investigational,” said plaintiff’s attorney D. Brian Hufford, of Zuckerman Spaeder in New York City. “In our view, there is clear evidence that TMS is an effective and well-established procedure and should be covered.”
Most insurance companies have covered costs associated with TMS, which left only Aetna and Cigna Corp. as the major providers not covering it, Hufford said. Aetna changed its policy to cover TMS treatment after the suit was filed. The amended complaint was filed in January 2016.
Aetna has argued in court pleadings that it has the authority to determine whether a treatment is experimental; that Meidl lacks standing to ask for injunctive relief, because Meidl cannot establish a likelihood of future injury, which, according to Aetna, is necessary for injunctive relief; and that the patients involved were in different types of plans and should not be part of the same class.
TMS is a noninvasive procedure that uses an electromagnet to generate repeated pulsed magnetic fields that stimulate nerve cells in the region of the brain associated with mood control, thus improving symptoms of depression.
If the plaintiffs prevail in their class action, an estimated 1,100 people denied treatment by Aetna would get to have Aetna reprocess their claims. Aetna would then have to pay each claim, which could be between $10,000 to $20,000, or identify a reason other than the experimental treatment exclusion to reject the claim, Hufford said.
The courts “are clearly saying that insurers can be held accountable, on a classwide basis, for their systematic denial of mental health and substance abuse-related coverage,” Hufford added.
Aetna was represented by attorneys Geoffrey Sigler and Heather Richardson of Gibson, Dunn & Crutcher. Neither was available for comment Wednesday.
Hufford was assisted by Andrew N. Goldfard and Jason S. Cowart of Zuckerman Spaeder; Elizabeth K. Acee and Daniel P. Ellison of LeClairRyan in New Haven; and Meiram Bendat of Psych-Appeal, which is based in California.
— Read How Drug-Company ‘Benevolence’ Silences the Sick on ThinkAdvisor