by Eric M. Plakun, MD
On March 22 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. In the original verdict in February 2019, Chief Magistrate Judge Joseph Spero found that United Behavioral Health (UBH) violated its fiduciary duty to its insureds by making coverage decisions according to its own financial interests and by using access to care guidelines that limited treatment to crisis stabilization rather than the field’s actual generally accepted standard of pursuit of recovery. Former Congressman Patrick Kennedy has called the verdict a “game changer” in implementation of the federal mental health parity law [the Mental Health Parity and Addiction Equity Act or MHPAEA] and several states [California, Illinois, Oregon, New York and others] have adopted the terms of the verdict in legislation or insurance policy directives.
The Ninth Circuit’s ruling reversing the verdict is extremely disappointing, puzzling, and bad for Americans.
One feature of the reversal is assigning this groundbreaking case a low level of importance for future review:
- In a time of recognition by the President and Surgeon General of a national crisis in mental health, with evidence of ongoing insurance industry failure to comply with the federal mental health parity law in a recent Department of Labor review, and of the persistence of shameful health disparities, it seems puzzling to view Wit as of low priority. The case addresses key issues in access to care for most of the US population currently receiving treatment for mental and substance use disorders. That is, of all the patients currently in treatment in the US, the vast majority are receiving treatment in one of the three levels of care that were part of the class action: outpatient [the largest group], intensive outpatient, and residential treatment. A much smaller group is in inpatient or partial hospital treatment–and these individuals will eventually move to outpatient treatment.
- Similarly, it is also puzzling to view as of low importance a verdict that shifts treatment of mental disorders authorized by insurance companies from the goal of mere crisis stabilization to the goal of pursuit of recovery–a shift entirely consistent with achieving parity and with generally accepted standards of care [GASC].
Another puzzling feature of the reversal is the assertion that the plaintiffs failed to prove that all treatments of mental disorders that are within GASC should be covered by insurance entities:
- This was never an assertion of the plaintiffs. They instead claimed that access to three specific levels of care that are part of GASC [outpatient, which is the most widely used level of care, plus two intermediate levels of care identified in the 2014 final rules as part of the federal mental health parity law] should be available to UBH insureds when medically necessary based on GASC.
This decision gives carte blanche to insurance companies to disregard GASC and restrict access to care to services they narrowly define as medically necessary even when the denied services are a mainstay of generally accepted standards of care. This can only worsen our already intolerable crisis in mental health and further exacerbate health disparities by limiting insurance supported treatment to crisis stabilization, with treatment that pursues recovery accessible only to those with the means to pay out of pocket.
We hope this flawed and unacceptable ruling will be overturned and call on other states and on Congress to enact legislation adopting into law the principles of the original Wit verdict–principles that were not questioned by the three-judge panel that overturned the verdict on other grounds–principles that address the crisis in mental health and that are a step toward reducing health disparities.
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