Spring, 2022
Flawed Reversal of Wit vs UBH
Requires a Second Look

Many of you may be familiar with the case of Wit vs United Health Care. We discussed in detail it in a previous newsletter (May, 2019) and members of our staff observed several days of the original trial.  The trial court found that UBH’s mental health guidelines were deeply flawed, an abuse of their fiduciary responsibility to their members, and not consistent with generally accepted standards of care (GASC). The trial court required that over 60,000 mental health cases be sent back to UBH for re-review, using generally accepted standards including CALOCUS-CASII for teens, LOCUS for adults, ASAM for those with primary substance abuse, and others, all of which were developed by independent societies of experts.  
Last week, the Ninth Circuit court of appeals reviewed the case, and issued a reversal. They found that UBH's interpretation -- that the Plans do not require consistency with respect to Generally Accepted Standards of Care (GASC) -- was not unreasonable. The court asserted that Plans exclude coverage for treatment inconsistent with GASC; and that Plaintiffs did not show that the Plans mandate coverage for all treatment that is consistent with GASC. The latter argument, that Plans mandate coverage that is consistent with GASC, was not even put forward. Plaintiff’s key argument was that UBH had developed their own criteria that were not consistent with GASC, claims were not fairly adjudicated because of this, and needed to be sent back to be re-reviewed using the standards that were developed by community experts.  
As someone who has worked on the front lines of battles with health insurance for nearly 15 years, most plan contract manuals (including UBH’s), include GASC in how they define medical necessity. Coverage decisions are supposed to be based on generally accepted standards of care, though sadly, with mental health, they often are not, and too often members cannot get coverage for care that most experts in the medical community feel they need. Typically, when plans don't cover something that is a generally accepted standard of care, it is explicitly excluded in the plan contract manual, which was not the case here. Sometimes these exclusions can be challenged, as they may run afoul of the federal MHPAEA, state parity mandates, and other laws. 
I had the good fortune to sit in on two days of the initial trial, and by sheer luck, I observed two of plaintiff's experts describe what Generally Accepted Standards of Care for Mental Health and Substance Abuse entailed. I also heard UBH's experts attempt to define their own standards, but the UBH standards did not conform to GASC. One of the main ways UBH’s standards fell short of the mark was that they over-emphasized treating the immediate acute manifestations of mental health crises, while neglecting the underlying, comorbid conditions.  Without treating the underlying conditions, the client would be likely to return to a crisis as soon as the same or a similar problem is encountered again. Compare this to heart disease: what if United chose to only cover the immediate crisis related events (heart attacks) and not the medication and treatments that prevent and reduce their likelihood? Would there even be a question?    
This ruling is a huge disappointment to the entire community of mental health consumers and professionals. Consumers need consistency in what they can expect from the health plans that they purchase directly or obtain through employment, so that they know what is covered and when they are eligible to obtain treatment. Professionals need consistency as well, so that they know what levels of treatments are appropriate to recommend that will likely be covered.  Professional organizations meet together on a regular basis, review new and evolving treatments, and through peer review and other methods, decide on what their industry standards include.  
As we well know, our nation is currently experiencing a public health crisis in mental health, autism and substance abuse.  In our everyday work, MHAIP frequently encounters families of children and young adults desperately in need of treatment. Often the network providers and facilities are full.  It can be hard to even find programs with openings. To have to encounter regular challenges in obtaining approvals in addition to this, because there is no consistency in standards, exacerbates an already strained system.  
It is our hope that plaintiffs seek and are granted an en banc review, where this unfair decision can be re-reviewed by a larger panel of appellate justices who have a more thorough understanding of the issues at hand.  This case impacts far more than the 60,000 plus directly impacted. It impacts the entire commercial mental health insurance industry. Ninth circuit appellate justices, with Amicus briefs from the US DOL, the CA Attorney General’s office, and several respected mental health expert bodies, this case is worthy of your time and scrutiny. 
Several states, including CA, have already enacted legislation which incorporate generally accepted mental health standards into the law. It is our hope that federal legislation will be introduced and passed on this, as well as passing SB 1364 which will enable the Department of Labor to take an active role in regulating self-funded health insurance plans directly, rather than through an employer. Mental health consumers and providers need to know what to expect when they request treatment. Ninth Circuit Justices, having the plans use consistent standards when they make life saving mental health decisions is, in fact, a reasonable expectation.  
Executive Director and Founder

MHAIP Executive Director interviewed on Autism Live

Dr Fessel was a featured expert on Autism Live . In this March 9 interview, Karen shares how and why she started MHAIP, her challenges in getting treatment for her child, and some of daily highs and lows of working with families.  Click here for the virtual interview with Shannon Penrod. 
For those with CA commercial insurance regulated by the
Department of Managed Health Care (DMHC):

The Department of Managed Health Care's (DMHC) Division of Plan Surveys is conducting surveys to assess barriers members experienced in obtaining mental/behavioral health or substance abuse services in the following plans:

Alameda Alliance For Health
Blue Cross of CA (Anthem)
Kaiser Foundation Health Plan, Inc (Kaiser Permanente)
Sharp Health Plan
Western Health Advantage

The investigations seek to identify systemic changes that could be made to improve the delivery of behavioral/mental/SA health care. They are seeking to identify plan members who are willing to participate in interviews. Those who were members of the above health plans within the past two years, who experienced barriers and challenges in obtaining these services and are willing to participate in interviews should reach out by phone at 279-666-5858 or via e-mail at EnrolleeBHI@dmhc.ca.gov

For more information, view the following:

Please take the time to improve the system and help those who come after you.

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We will need your continued financial support to be able to keep this wonderful program, which allows us to provide assistance to financially struggling families and keeps Feda and Mu’s memories alive in our hearts.  Thank you for your active support.

Dr Tracy Guiou, Kristin Jacobson, and Dr Karen Fessel of MHAIP (left to right) presented The Appeals Playbook, a soon to be published guide for autism providers, on March 4th at the CALABA annual conference in Santa Clara, CA. 
Helping families, providers and facilities obtain medically necessary mental health and autism treatments through health insurance.
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