Vol 23, 2014 Annals of Health Law 48
THE ACA AND PEOPLE LIVING WITH HIV/AIDS
3. Preventative and Experimental Treatments
Health insurance providers have also commonly excluded treatment they
classify as experimental or not medically necessary.162 Providers
accomplish this by including clauses in their contracts with the insured
excluding such treatments.163 Treatments that providers consider to be
experimental or unnecessary, however, are wide-ranging and often life-
saving.164 To make matters worse, courts have not been consistent in
interpreting what services are experimental.165 This is because whether a
treatment is experimental largely depends upon the consensus of the
medical community, a concept that courts have not defined with
precision.166
Recently, clinical tests for a new HIV prevention method called Pre-Exposure Prophylaxis (PrEP) have been promising.167 In a study of gay
men, PrEP was found to decrease a person’s chance of acquiring HIV by
forty-four percent, if taken in conjunction with other preventative
measures.168 The results caused some researchers to observe that PrEP is an
especially important preventative measure in communities with a high risk
of contracting HIV, such as among gay and bisexual men.169 However,
Truvada, the PrEP drug, costs about $14,400 a year, making it unaffordable
162. See, e.g., Sarchett v. Blue Shield of Cal., 729 P.2d 267, 272 (1987) (describing the
dispute between Sarchett and Blue Shield of California, which arose after Blue Shield denied
Sarchett’s claim for his hospital stay based on lack of medical necessity); J. Gregory Lahr,
What is the Method to Their “Madness?” Experimental Treatment Exclusions in Health
Insurance Policies, 13 J. CONTEMP. HEALTH L. & POL’Y 613, 619 (1997); see also Catherine
A. Voigt & Kevin J. Conlon, Insurance Coverage for Experimental Treatment: New Hope
for Patients, 83 ILL. B. J. 396, 396 (1995) (describing the case of Tishna Rollo, whose
Wilms’ tumor treatment was denied despite the fact that it was her only chance for survival).
163. See Sarchett, 729 P.2d at 272; Lahr, supra note 162, at 624 (describing the
judiciary’s role in contract disputes between providers and the insured over what procedures
qualify as “experimental”).
164. See Voigt & Conlon, supra note 162, at 396.
165. See Lahr, supra note 162, at 623-24.
166. See, e.g., Wilson v. Office of Civilian Health & Med. Programs of the Uniformed
Servs., 65 F.3d 361, 364, 366 (4th Cir. 1995) (noting that clinical trials are relevant but not
dispositive and relying instead on the testimony of an expert witness and a paper published
in a medical journal).
167. See Robert M. Grant et al., Preexposure Chemoprophylaxis for HIV Prevention in
Men Who Have Sex with Men, 363 N. ENGL. J. MED. 2587, 2588 (2010).
168. Ctrs. for Disease Control & Prevention, PrEP: A New Tool for HIV Prevention 1
(2012), http://www.cdc.gov/hiv/prep/pdf/PREPfactsheet.pdf.
169. Id. at 2, 5, 7; see also Emily A. Arnold et al., A Qualitative Study on Provider
Thoughts on Implementing Pre-Exposure Prophylaxis (PrEP) in Clinical Settings to Prevent
HIV Infection, PLOS ONE (July 11, 2012), available at http://www.plosone.org/
article/info:doi/10.1371/journal.pone.0040603#pone.0040603-Grant1.
