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From the Trenches

Post Wit Case: New Trends in Residential Treatment Denials

Many of you may be familiar with the class action Wit vs United Health Care. This is a well known case where families sued United Health Care for using overly restrictive guidelines to determine whether residential treatment and other mental health interventions were medically necessary for individual cases. The case won at the trial level, and was overturned on appeal.   While the ultimate fate of this large case remains in limbo, MHAIP has been seeing some interesting and rather disturbing trends in authorizations for residential treatment in the two plus years since Wit’s initial favorable ruling. Specifically, we are seeing a shift away from health plans ruling on whether there is a medical need for residential treatment on a case by case basis. Instead, mental health facilities are being judged on whether or not they meet the health plan’s rigorous standards to deliver the care.

When a non-network facility calls to either verify benefits or obtain authorization for a given client, instead of presenting the particulars of what is happening medically for the client that requires this level of care, facilities are questioned rigorously on many of the following:

·      Whether they provide 24/7 care with licensed nurses or mental health clinicians,

·      Provide at least weekly visits with a board-certified psychiatrist,

·      Have a psychiatrist on staff that functions as the medical director,

·      Provide an initial physician visit within 24 hours of admission,

·      Provide regular therapy sessions on weekends,

·      Are accredited with one of a short-list of accrediting agencies

A no answer to any of the above items can trigger an exclusion, also known as a non-denial denial. Often the medical facts of the case are not reviewed, and denial letters are only issued after calling multiple times to request them. When they are provided, denial reasons are vague. One plan has a “Do Not Authorize” list and will check the list and issue an automatic verbal non-coverage, without even discussing with the facility. Sometimes these exclusions are also spelled out in the member plan manual, and sometimes they are not. Nearly always, when we look at restrictions in the plan manuals for similar medical/surgical facilities, often the only requirement is that the facility be licensed by their home state.

The Federal Mental Health Parity and Addiction Equity Act (MHPEAE) states that treatment limitations for mental health shall be no more restrictive than substantially all medical/surgical treatments in the same level of care, and there shall no be limitations applied only for mental health.  Many states (25 out of 50!) have laws that allow nurse practitioners to function autonomously. These laws were developed because there simply are not enough physicians (including board-certified psychiatrists) to serve the need. Recent parity legislation in some states likely does not allow these types of restrictions. The legality of these restrictions need to be challenged.

When we look at the requirements from agencies which accredit mental health residential and other facilities, such as Joint Commission, COA, and CARF, we do not see these specific requirements (often the facilities that are being denied have these accreditations). Nor do we see them listed in non-profit agencies and professional societies that develop treatment guidelines, such as LOCUS, CALOCUS-CASII, and ASAM. These requirements are arbitrary and capricious, and are developed for the purpose of limiting access to treatment and ultimately costs.

If you are denied treatment based on these types of exclusions, we encourage you to appeal them and take them to your state regulator. If you work for a large company, your plan may be self-funded (paid for by your employer.) Make your employer aware that they may be in violation of the Parity act, and contact the local branch of your Department of Labor for assistance. You can also file a MHPAEA disclosure template, where your health plan will be obliged to explain how these practices do not violate parity. It is only when we bring these practices to light and speak up loudly that we advance systemic change.

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