On February 15, 2019, Aetna Inc. announced a settlement of allegations Aetna wrongfully denied mental health treatment. The plaintiff and a group of Aetna insureds had filed a class action lawsuit under ERISA alleging Aetna wrongfully denied health insurance for a specific treatment for major depression called Transcranial Magnetic Stimulation (“TMS”).
The lawsuit alleges Aetna had a uniform policy of denying coverage for TMS on the basis TMS was purportedly “experimental and investigational.” Experimental/investigational exclusions are common in health plans, particularly plans issued through employers under ERISA. In theory, such exclusions limit the insurer’s obligation to pay for treatment where there’s insufficient evidence the treatment will effectively treat the insured. Unfortunately, in practice, experimental/investigational exclusions are frequently used as a justification for health plans’ refusal to cover any treatment that is new or novel enough to be expensive.
If approved by the judge, the settlement would require Aetna to pay $6.2 million to reimburse insureds who were wrongfully denied coverage for TMS treatment. Aetna had already changed its policies to allow coverage for TMS earlier in the lawsuit. The settlement class includes participants in employee-sponsored health plans administered by Aetna who were denied health insurance coverage for TMS on the basis of Experimental, Investigational, or “Unproven Services.”