If my Virginia health insurance covers other cancer radiation treatments but denies coverage for proton radiation therapy by saying it needs more clinical evidence, is that legal?

Plain-English summary

In 2017, the Virginia General Assembly passed § 38.2-3407.14:1, an unusual insurance statute that does not mandate coverage for proton radiation therapy but does require parity in how carriers evaluate it. Delegate A.C. Cordoza asked Attorney General Jason Miyares to confirm what the statute actually does in a common scenario: a Virginia health insurer covers conventional cancer radiation therapy for a patient but denies coverage for proton radiation therapy on the ground that the clinical evidence supporting proton therapy is weaker than what the carrier requires.

Miyares confirmed that this kind of denial violates § 38.2-3407.14:1. The statute leaves carriers free to decide whether to cover cancer therapy at all. But once a carrier covers cancer therapy, it cannot apply a higher clinical-evidence threshold to proton therapy than it applies to other types of radiation therapy treatment. If the carrier would approve x-ray, brachytherapy, or stereotactic body radiation under standard X of clinical evidence, it cannot demand a higher standard X+1 for proton therapy.

The statute applies to commercial individual and group insurance, subscription contracts, and HMO plans delivered, issued, or extended in Virginia on or after January 1, 2018. It does not apply to Medicare or other state or federal government plans. Whether a particular denial is in fact based on a higher evidence standard is a question of fact that the AG's office does not decide; the AG opinion confirms the legal rule that applies to such facts.

What this means for you

Cancer patients denied proton therapy coverage in Virginia

The opinion holds that if your carrier covers cancer therapy, it cannot deny proton radiation therapy by applying a higher standard of clinical evidence than it uses for the other radiation modalities it covers. The opinion also states that whether a particular denial actually rests on a higher evidence standard is a question of fact the AG's office does not decide. A denial grounded in something else (for example, medical necessity for your specific cancer, or a plan that excludes cancer therapy entirely) is outside what the parity statute addresses.

Oncologists and patient advocates

On the opinion's reading, the rule turns on a comparison: the clinical-evidence standard the carrier applies to proton therapy versus the standard it applies to the other radiation modalities it covers. The statute forbids only a higher standard for proton therapy, not every denial of proton therapy.

Health insurance carriers and medical directors in Virginia

Under the opinion, a carrier that covers cancer therapy may not hold proton radiation therapy to a higher clinical-evidence standard than it applies to other types of radiation therapy treatment. The statute does not require the carrier to cover proton therapy; what it bars is a higher evidence threshold for proton therapy specifically.

Employers offering a Virginia health plan

By its terms the statute applies to insurance policies, subscription contracts, and health care plans issued or extended in Virginia. The opinion addresses the parity rule itself and does not opine on how it interacts with self-funded ERISA plans.

Virginia legislators

The opinion confirms the statute is a parity rule, not a coverage mandate: § 38.2-3407.14:1 states it is not to be construed to mandate proton therapy coverage. The opinion interprets the existing rule and does not extend it.

Common questions

Q: Does this statute force my insurance to cover proton radiation therapy?
A: No. § 38.2-3407.14:1(C) explicitly states the statute is not to be construed to mandate proton therapy coverage. It only requires equal clinical-evidence standards if the carrier covers cancer therapy at all.

Q: My insurer says proton therapy is "experimental" or "investigational." Is that allowed?
A: It depends on whether the insurer applies the same "experimental/investigational" threshold to other radiation modalities. If the carrier categorizes proton therapy as experimental but accepts comparable observational data for IMRT or stereotactic body radiation, that disparity is what § 38.2-3407.14:1 forbids.

Q: Does this apply to Medicare or Medicaid?
A: No. Section 38.2-3407.14:1(E) excludes Medicare and "any other similar coverage under state or federal governmental plans." The statute applies to commercial insurance, subscription contracts, and HMO plans only.

Q: When did this statute take effect?
A: 2017 Va. Acts ch. 287 enacted the statute, with subsection (D) making it apply to "insurance policies, subscription contracts, and health care plans delivered, issued for delivery, reissued, or extended in the Commonwealth on and after January 1, 2018, or at any time thereafter when any term of the policy, contract, or plan is changed or any premium adjustment is made."

Q: How do I prove the carrier is using a higher standard for proton therapy?
A: The opinion treats this as a factual question rather than a legal one, and one outside the scope of an AG opinion. The relevant comparison is the carrier's stated clinical-evidence standard for proton therapy against the standard it applies to the other radiation modalities it covers. Whether any particular denial violates the statute is for regulators or courts, not the AG, to decide.

Background and statutory framework

Proton radiation therapy uses positively charged subatomic particles instead of x-rays to deliver radiation to cancerous tissue. Its physical properties (the Bragg peak) allow more precise dose delivery than conventional x-ray radiation, theoretically reducing damage to surrounding tissue. The clinical evidence base for proton therapy is growing but remains less mature than for older modalities like IMRT and three-dimensional conformal radiation. That maturity gap is what insurers have historically used to justify higher coverage barriers.

In 2017, the Virginia General Assembly responded with § 38.2-3407.14:1, a parity statute. The statute's structure is unusual: it explicitly disclaims any general mandate to cover proton therapy. But it imposes a non-discrimination rule on carriers that do cover cancer therapy. The carrier's clinical-evidence threshold for coverage decisions about proton therapy cannot exceed the threshold it uses for other types of radiation therapy treatment. The statute defines "radiation therapy treatment" broadly to include x-ray radiation therapy, intensity modulated radiation therapy, brachytherapy, stereotactic body radiation therapy, three-dimensional conformal radiation therapy, and other forms of radiation therapy.

The statute does not define "standard of clinical evidence." The AG noted in a footnote that the term refers to the body of evidence (case reports, cross-sectional studies, case-control studies, cohort studies, randomized controlled trials, critically appraised individual articles, systemic reviews) typically considered sufficient to show that a particular treatment is reasonable, effective, and medically necessary. Carriers retain medical judgment in evaluating clinical evidence, but the statute prevents them from setting a uniformly higher bar for proton therapy.

Citations and references

Statutes:

• § 38.2-3407.14:1, Va. Code Ann. (proton radiation therapy parity)
• §§ 38.2-3408 to -3419.1, Va. Code Ann. (mandated benefits chapter)

Cases:

• Manu v. GEICO Cas. Co., 293 Va. 371 (2017) (plain-meaning canon for unambiguous statutes)
• Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96 (2007) (same)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-039-Cordoza-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
December 15, 2023
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Jason S. Miyares
Attorney General

The Honorable A.C. Cordoza
Member, Virginia House of Delegates
General Assembly Building
201 North 9th Street
Richmond, Virginia 23219

Dear Delegate Cordoza:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether an insurance company that otherwise provides coverage for radiation therapy for a particular type of cancer can deny a patient coverage for proton radiation therapy for that cancer, when the claimed proton radiation therapy meets the standard of clinical evidence used by the insurance company in making coverage determinations for other forms of cancer radiation therapy.

Background

As I understand it, your inquiry involves a scenario in which a health insurance carrier provides a patient coverage for cancer treatments that use particular forms of radiation therapy. The coverage is available based on the patient's treatment plan meeting the standard of clinical evidence supporting that treatment modality for the patient's diagnosis; however, the insurance company denies coverage for treatment that involves proton radiation therapy. While your question does not state the reason the insurance company is denying coverage for proton radiation therapy, it implies that the denial is based on the insurance company utilizing a different or higher standard of clinical evidence than used for other forms of cancer radiation therapy, such as the treatment it has already authorized.

Applicable Law and Discussion

Your inquiry implicates Virginia Code § 38.2-3407.14:1, which is among Virginia's laws addressing accident and sickness insurance. The statute defines "proton radiation therapy" as "the advanced form of radiation therapy treatment that utilizes protons as an alternative radiation delivery method for the treatment of tumors." Although § 38.2-3407.14:1 directs that it not be "construed to mandate the coverage of proton radiation therapy under any policy, contract, or plan issued or provided by a carrier[,]" the statute does provide that

each policy, contract, or plan issued or provided by a carrier that provides coverage for cancer therapy shall not hold proton radiation therapy to a higher standard of clinical evidence for decisions regarding coverage under the policy, contract, or plan than is applied for decisions regarding coverage of other types of radiation therapy treatment.

Virginia does not mandate coverage for cancer therapy, including proton radiation therapy. According to the plain language of § 38.2-3407.14:1, however, an insurance carrier, to the extent it otherwise chooses to provide coverage for cancer therapy, may not deny coverage for proton radiation therapy based on the application of a higher standard of clinical evidence for proton radiation therapy than the carrier uses for other types of radiation therapy. Ultimately, whether a particular claim is being denied in violation of § 38.2-3407.14:1 is a question of fact beyond the scope of an opinion of this Office; nevertheless, if the insurance carrier in your scenario is in fact denying coverage for proton radiation therapy based on a failure to meet a higher standard than is imposed on other radiation treatments that would be approved, the carrier is violating § 38.2-3407.14:1.

Conclusion

Accordingly, it is my opinion that Code § 38.2-3407.14:1 prohibits an insurance carrier that provides coverage for cancer therapy from denying a patient coverage for proton radiation therapy when the coverage determination is based on the carrier's application of a higher standard of clinical evidence to such treatment than it uses for treatments it otherwise approves.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General