March 2023

Wit vs United Behavioral Health: The Fight Continues

We have previously reported twice before (Spring of 2022, and May, 2019) on the case of Wit vs United Behavioral Health.  Referred to as “The Brown vs Board of Education” equivalent for mental healthcare rights, this class action has garnered a huge amount of attention in the mental health, substance abuse, and legal communities.  To recap, in this case, Federal Magistrate Joseph Spero issued a 100 plus page ruling against United Health Care for using overly restrictive guidelines to determine medical necessity for mental health residential, intensive outpatient, and outpatient treatments for their members.  Magistrate Spero found that United developed their own guidelines for financial interests, and put these interests before those of their consumers.  He ordered that nearly 60,000 cases be sent back for review, using standards developed by non-profit community expert organizations.  United appealed this ruling.  In March of 2022, a three justice Ninth Circuit panel issued a short, non-publishable seven-page ruling overturning the trial court ruling.  Plaintiffs requested clarification, along with a rehearing or en banc review (review by a large portion of ninth circuit justices).   In late January of 2023, the same three justice panel issued a “clean up” ruling, in response to issues brought up by plaintiffs and amici (“friendly” organizations filing in support), where they provided additional information on their initial ruling.  Two weeks ago, plaintiffs issued a response.  Both documents can be found here.

In the publishable “clean up” ruling, the appellate court argued that they reversed part of the trial court’s ruling because, by allowing claims to be reprocessed (sent back to the plan for re-review) as a class, they expanded plaintiffs rights and gave them additional rights that normally would not have been available.  Plaintiff’s refuted this, arguing that it “contravenes decades of trial court rulings, …and creates a split with every other circuit court.  Remand is the central remedy in cases where the administrator applied the wrong standard…”   Both circuit courts and the federal government agree on this issue, as having the plan fully and fairly review each case is an intrinsic part of ERISA law, the law which most employer-based health plans must follow.  Plaintiffs also argued that it is overly burdensome to have judges make medical necessity type of decisions. 

The appellate court also argued that though named plaintiffs had exhausted their appeals, other class members had not (unnamed members were only required to show that they had been unfairly denied).  This issue has been addressed in many circuits throughout the country (which the panel did not address), where requiring non-named plaintiffs to exhaust appeals has been generally excused, because the result is thought to be futile. Plaintiffs argued that “no circuit had ever held otherwise.”

The third main point made by the appellate court was that the plan could evaluate using their own standards based on their own financial best interest.  Plaintiffs address that this final point represents a huge setback in the nation’s fight to address the mental health and addiction crises plaguing our country today.  

The appellate court did affirm several points brought up in the trial:  that United breached its fiduciary duty to their members, and that for a class of plaintiffs with fully funded plans in several states (RI, CT, IL, and TX), UBH violated members’ rights by failing to use ASAM (American Society for Addiction Medicine) criteria, as mandated, for those with a primary substance abuse condition.  They remanded the case for further proceedings.  Plaintiffs requested a review by the majority of ninth circuit appellate justices. 

Stay tuned, as the one thing that seems to be a safe bet is that this case is not over. 

MHAIP Case Wins

ABA Therapy Services for Child with Autism Fully Reimbursed After Repeated Provider and Insurer Errors

MHAIP worked with the CA Department of Managed Healthcare (DMHC) to get 8 months of ABA services for a young boy with autism correctly billed as in-network and also fully reimburse his mother $60,250 for her out-of-pocket payments. Anthem Blue Cross refused to acknowledge that the ABA provider was actually in-network when the services were provided, and also sent threatening letters to the mother about collecting partial reimbursement payments they said were made in error. Only by getting the CA DMHC involved were we able to unwind all of the mistakes and get the money reimbursed.

MHAIP wins 232 Days of RTC Level of Care for Young Trans Woman with Autism

Although it is rare, sometimes we win big in first-level appeals. We appealed the denial of RTC level of care for a teenage trans woman with autism from Colorado, and won 7 ½ months of coverage for her stay in RTC through Optum/UBH. UBH had initially put the facility on a do-not-authorize list. After much back and forth, issues between the facility and the health plan were resolved and the care was approved. The family is so relieved that this young woman's issues are being acknowledged and she can continue to get the support she needs with her complex issues.

Kaiser Agrees to Pay for Mental Health Hospitalization

MHAIP assisted the parents of a CA teen with Kaiser insurance who had enrolled at the Huntsman CAT program for stabilization and comprehensive assessment for his severe depression, OCD, panic disorder, and possible schizo-affective disorder. The teen had a long history of hospitalizations and mental health treatments.  The family had obtained an authorization from the Kaiser's acute care mental health department in advance, along with an authorization number. Approximately ten days into his stay, however, his parents received a call from the billing department of Huntsman saying that they could not reach an agreement with Kaiser. MHAIP got involved, filed an urgent appeal with Kaiser and an urgent complaint with the CA Department of Managed Health Care (DMHC). Though Kaiser and Huntsman refused to sign an agreement, after much back and forth with the DMHC, Kaiser agreed to pay all billed charges minus the enrollee's cost shares.

"I'm grateful to Karen and the team at MHAIP for the rapid and effective response they mounted to our case. Thinking back to the months of correspondence and advocacy I did with my insurance company, I wish I would have brought them on sooner! I heartily endorse this service. Our insurance companies are a mess and our health system is broken and it is so unfortunate that it sometimes requires a professional advocate to get the job done -- we are grateful that we found a path forward thanks to MHAIP. "-- Amy

MHAIP Secures Single Case Agreement for Oregon Teen

A non-binary teen from Oregon was seeking residential mental health treatment from Optum/UBH for eating disorders, depression, and substance abuse. The parents reached out to the health plan to obtain the names of appropriate centers. UBH was unable to provide names of any centers with availability. The family located an out-of-network facility in Hawaii, and MHAIP called to request an authorization. UBH said that the facility was on a do not authorize list, and issued a denial. MHAIP filed an expedited appeal with United, they upheld their denial, without providing any further information. We got the Oregon Division of Financial Regulation involved, and after much back and forth with United, they authorized treatment, including a single case agreement.  To date, the client has received 53 days of coverage.


"Our single case agreement would not have been possible to achieve without the help of the Mental Health and Autism Insurance Project. Karen engaged us with actions to take right away with the insurance company. She is incredibly efficient and persistent, communicating clearly with us each step of the way. We are so grateful for her support as we are able to focus on our priority of supporting our child in treatment while Karen moved the process forward."

External Review Overturn for Partial Hospital Program

A 16 year old trans man from CA, who had been diagnosed with severe depression, generalized anxiety disorder, OCD, Anorexia, history of self-harm, and gender identity disorder, was admitted to a partial hospital program. Approximately 7 weeks were approved, and then continued coverage was denied. Anthem determined that the teen was not at high risk for harm and only needed outpatient services. The client remained in treatment at personal expense, as he continued to battle self-harm urges. Two weeks after Anthem determined that he no longer needed treatment, he self harmed with a blade. Parents brought him to the ER where he was placed on a 5150 hold and transferred to a mental health hospital. MHAIP filed an external review, the case was overturned, and Anthem was ordered to pay for the last two weeks of the PHP stay.  

$90k in Reimbursements Secured for Family of Texas Teen


A post-service review of 8 months of treatment for a Texas teen suffering from anxiety and major depressive disorder resulted in a denial of residential level of care; however, the denial letter expressly stated that the teen met criteria for partial hospitalization (PHP) level care. To recoup some reimbursement for the family, with approval from the insurer, BCBS of IL, we submitted corrected claims for PHP level care. After months of failure to process, or even acknowledge receipt of the corrected claims, we advised the family to request assistance from the former employer’s HR department. This pressure produced a contact with a customer service rep who ultimately got all the claims re-processed and paid.


“Back in April, 2022, we initiated a case to seek reimbursement for thousands of dollars spent for out of state treatment. I was cautiously optimistic that we had a solid case for reimbursement given our medical necessity. I am grateful for all the work you have done. Over and over again, we encountered claims processing people that tried to thwart, stall, or block our efforts as well as their incredible incompetence. I was tempted to give up more than once. Marcy was undaunted and remained focused. She is the reason we were able to get the reimbursement we did. We are a "use case" for perseverance. I had some concerns I would spend more than my reimbursement. Marcy convinced me our case had merit, and I am glad I trusted her.”

58 Days of Residential Treatment Authorized and Rate Grievance Win


MHAIP obtained authorization for 58 days of residential treatment for an OR transgender teen with Level 2 ASD at an out of network facility in UT. After several years of various outpatient treatments, ER visits with hospitalizations due to suicidal and homicidal ideation, and a 7-week RTC program this teen needed a higher level of care. Aetna did not have any programs in-network that would accept a transgender patient with Level 2 ASD. While Aetna authorized the facility, the RTC claims were reimbursed at an extremely low rate. MHAIP filed a grievance for the low reimbursement rate and won an overturn resulting in an additional payout to the family of $17k.

BCBS North Carolina Acknowledges Inadequate Network, Authorizes RTC Care


MHIAP secured authorization for 27 days of residential care for a 13-year-old teen with ASD, anxiety, depression and ADHD. While BCBS NC originally authorized the out of network facility, they refused to cover at the in-network rate. MHAIP appealed with documentation of the family’s good faith attempts to locate an in-network option for the teen. No in-network program was appropriate for his combination of diagnoses. After 2 levels of appeals, BCBS NC agreed to cover the claims at the in-network rate.

Maximizing Payment and Wins for Residential Treatment

Getting health plans to pay for residential treatment is no easy feat. Here are some things that you can do to improve the chances of getting covered, and maximizing the amount you are reimbursed. We encourage you to do this a few days before your child starts treatment. We know that you are usually in the thick of it at this point in time, but finances is an important factor, and we encourage you to make the effort ahead of time to work with your health plan.  

  1.  Explore what is available within the plan network. Call your plan and ask for a list of mental health treatment centers that can work with your child.  Be specific about your child needs. Many fully funded plans in certain states have network adequacy standards. It helps to know how far they can require you to travel.  
  2. Then call the centers (skip the hospitals, skip the places that only work with adults (if your child is a teen), skip the day treatment centers, skip the ones that are clearly not appropriate). Mark up the list. If they don't return your call within 48 hours, that is a no.  Ask about open beds, length of stay, what conditions they take, what behaviors they will work with, and how soon they can take your child. If your situation is urgent, let both the health plan and the potential facility know that. 
  3.  If nothing is appropriate, make sure that you call the plan back and advise them of this.  Are they able to come up with names of appropriate facilities that will work with your child? If not, request a single case agreement. Write down who your spoke with, date, reference number for the call, and what they told you.
  4. When your facility calls to get pre-authorization, make sure they know to also request a single case agreement, where the health plan will reach an agreement about rate of payment in advance with the facility. We advise families to do this because we have noted a recent industry trend where the health plans are paying at a very low rate for out of network care, EVEN WHEN THEY ACKNOWLEDGE THAT THEY DON'T HAVE AN APPROPRIATE PROGRAM!! A gap exception allows you to use in-network rates for out of network care, but we have found recently that many plans are paying at such a low rate, that it is only marginally helpful.  
  5. If your facility does not work directly with insurance, feel free to reach out to us at MHAIP and we can help. 

ABA Services Survey in CA

CAL ABA and CASP (Council for Autism Service Providers) are working together to gather data to learn about access to ABA services in California.


If you have a loved one with autism, live in CA, and that person is receiving ABA services, or trying to get ABA services, please fill out this quick survey:

Access to ABA Services in CA Survey

If you are waiting for access to an ABA provider, it's important that CA regulators hear from families so they know how dire the situation is. Help by filing a complaint:

If you have private health insurance file a complaint with the California Department of Insurance:

If you have Medi-Cal:

Whether you have private insurance or Medi-Cal, or both, email your CA senator and representative to make them aware that this is affecting their constituents. Find out who represents you here:

Thank you for taking the time to participate. 

Questions? email:

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Helping families, providers and facilities obtain medically necessary mental health and autism treatments through health insurance.
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