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Advocacy News

Freedom of Access to Medically Necessary Treatment

January 31, 2020
*On March 22, 2022 the Ninth Circuit Court reversed the US District Court for the Northern District of California’s February 2019 decision in Wit v. United Behavioral Health. To read more about this development and what it could mean to you, visit:
Freedom of Access to Medically Necessary Treatment is one of the Four Freedoms that is a foundation of mental health.
As clinicians know, and as Federal District Court Judge Joseph Spero made part of his verdict in the landmark Wit v. UBH class action lawsuit [which we reference later in this piece], treatment should address underlying problems and co-occurring disorders in a way that goes well beyond mere crisis stabilization. This kind of treatment pursues the goal of recovery. Freedom to Pursue Recovery is another of the Four Freedoms that are foundations of mental health.
But what is recovery? According to the Substance Abuse and Mental Health Services Administration (SAMHSA), recovery is defined as, “A process of change through which individuals improve their health and wellness, live a self-directed life, and strive to reach their full potential.”[1] Recovery as a goal, including especially its focus on helping people live self-directed lives, aligns with core values of the Austen Riggs Center: patients have authority in their own lives, including their treatment, and Riggs treatment plans strive to address the whole person through goals well beyond mere crisis stabilization.
The overall issue of access to medically necessary care can be framed as one of those “good news, bad news” dilemmas. The good news is that there are effective treatments for the mental disorders with which people struggle. Yes, there are limitations to their effectiveness, and many—probably most—patients struggle with more than one disorder at a time and/or significant underlying issues like early or recent adverse experiences or trauma. Patients with co-occurring disorders and those struggling with underlying adversity are less likely to respond to treatments that fail to address factors that contribute to the complexity of their situation. Nevertheless, there are clear reasons for hope when treatments consider all components of an individual’s problems and are well-executed.
The bad news is that it is often quite difficult for those in need to gain access to the medically necessary care that might be effective in meeting their needs. This is true not only for those lacking insurance or covered by frequently underfunded public options like Medicaid, but also for those with what seem to be desirable insurance plans. Having insurance coverage for mental disorders does not generally translate easily into access to medically necessary care. There are several barriers to such access.
Workforce Shortages and Motivation Factors
Workforce shortages contribute to problems in access to care. There are not enough psychiatrists, psychiatric nurses, psychologists, and other mental health professionals to help those in need. The Health Resources & Services Administration (HRSA) predicts enduring shortfalls in psychiatrists, psychologists, and addictions counselors through at least 2030.[2]
While the magnitude of the shortages varies widely depending on geographic location, the overall picture is worrisome. In fact, the distribution of mental health service providers is grossly unequal with the shortage felt most acutely in rural settings.[3] Patients in rural areas must travel further to receive treatment, generally have fewer options and longer waiting lists than in urban settings, and may face more pronounced stigma toward mental illness and its treatment.
In addition, many individuals, particularly those with complex psychiatric problems or serious mental illness, may struggle with a lack of motivation to seek treatment at all. They may suspect the motives of those offering or recommending treatment or lack the energy, focus, and organizational skills to pursue treatment.
Managed Care, Insurance, and Legislation
Just because one has insurance does not mean one has access to medically necessary care. This is true for private insurance as well as Medicare and Medicaid, and systems like the Veteran’s Administration.
For those seeking treatment who have health insurance, a major obstacle is many insurers’ use of access to care guidelines for initiating or continuing treatment that limit treatment to the goal of mere crisis stabilization rather than the goal of recovery.
This problem has its origins in the expansion of managed care in the 1990s—which was a response to escalating, double-digit inflation in healthcare costs and the failure of the national health insurance initiative pursued by President Clinton. Hence, it is important to recognize that managed care operates with the same moral imperative as the environmental movement: we face a world of limited resources and must recognize this and manage the resources accordingly. However, managed care did this by misunderstanding or misrepresenting the goal of treatment for mental disorders as mere crisis stabilization. The presenting problem was treated, patients were released to lower levels of care, and/or treatment ended in much shorter periods of time than previously were typical. Underlying and co-occurring problems were often ignored in access to care guidelines, and costs were successfully reined in, even as clinicians and patients experienced disbelief that recommended, medically necessary care was routinely denied by insurance reviewers. There was little meaningful regulatory oversight over insurance and managed care entities— indeed, like the Wild West, there were no meaningful rules except those set by the insurance industry.
Over time, though, there has been a taming of the Wild West through top-down legislation and grassroots bottom-up litigation. In 2008 the Mental Health Parity and Addiction Equity Act (MHPAEA) was signed into law. This important piece of legislation made clear: if an insurance policy covers mental health and substance use disorders, then the barriers to access treatment cannot be substantially more stringent than those to access medical and surgical care. In 2014, the “Final Rules” of the MHPAEA clarified that parity applied to all levels of care–inpatient, outpatient, and so-called intermediate levels of care like residential and intensive outpatient programs. The passage of the Affordable Care Act (ACA) in 2011 strengthened the MHPAEA in several ways, including by making mental health and substance use disorder treatment part of the essential benefit package and requiring the disclosure of previously secret access to care guidelines that insurance companies use to deny care. Currently, US Senators Chris Murphy (D-CT) and Bill Cassidy (R-LA) have introduced the Mental Health Parity Compliance Act, which would require insurers to reveal their compliance with mental health parity law and provide a meaningful level of transparency. All of this legislation was and is incredibly important but, puzzlingly, the MHPAEA requirements have been minimally enforced. Eleven years after passage of the MHPAEA, true parity in access to treatment for mental disorders that pursues a broader goal than crisis stabilization remains elusive.
While legislation has proven one important top-down method of ensuring access to medically necessary care, the bottom-up approach of class action lawsuits brought by insureds against insurers is proving a fruitful avenue as well. The verdict in the Wit v. UBH class action in San Francisco’s 9th District earlier this year has been hailed as a landmark decision related to access to care. Medical Director/CEO Eric M. Plakun, MD, served as one of two expert witnesses for the plaintiffs in this case.
Judge Joseph C. Spero’s 106-page verdict notes:
“Having reviewed all of the versions of the Guidelines that Plaintiffs challenge in this case and considered the testimony of the witnesses addressing the meaning of the Guidelines, the Court finds, by a preponderance of the evidence, that in every version of the Guidelines in the class period, and at every level of care that is at issue in this case, there is an excessive emphasis on addressing acute symptoms and stabilizing crises while ignoring the effective treatment of members’ underlying conditions.”
“[I]n each version of the Guidelines at issue in this case the defect is pervasive and results in a significantly narrower scope of coverage than is consistent with generally accepted standards of care.”
This combination of top-down legislative and bottom-up courtroom efforts offers hope for full implementation of the MHPAEA and for realization of these two of the Four Freedoms of Mental Health.
1 Substance Abuse and Mental Health Services Administration, 2019
2 Pellitt, 2018
3 Andrilla, Patterson, Gaberson, Coulthard, & Larson, 2018