Optum … A Solomon-Like Decision?

“The Devil’s agents may be of flesh and blood may they not?”

     Sir Arthur Conan Doyle, The Hound of the Baskervilles

Many people in the eating disorder community profess to know, hope, believe, or want to believe that the insurance industry as a whole does not work against the best interests of their insured and medical providers and are not primarily concerned with their financial self-interest. And then, we encounter a person, an event or conduct that seems so implausible and so outrageous, that when proven true, has the ability to shake our belief to its very core.

On February 6, 2019, a lawsuit entitled Avalon Hills Health Care, Inc. vs. United Health Group, Inc, et al was removed from a state court in Utah to the United States District Court for the District of Utah. It was assigned cause number 1:19-cv-00009. The plaintiff’s allegations, if and when proven true, have the potential to shake the foundations of the manner in which insurance providers evaluate claims. At the same time, it could also pull back the curtain that hides the abuse of discretion and power held by peer review doctors employed by those insurance providers.

The lawsuit alleges that on behalf of a number of patients, Avalon Hills entered into single case agreements with United Behavioral Healthcare a/k/a Optum (“Optum”) so that Avalon Hills could render eating disorder treatment to its patients. In those single case agreements, Optum agreed to make payment for treatment rendered by Avalon Hills. Then, in April 2018, Optum sent a notice to Avalon Hills advising that payment for treatment for all patients under which a single case agreement was in place was being immediately stopped. [and contrary to the 30 day requirement in the single case agreements.] Despite having a long satisfactory relationship with Avalon Hills, Optum claimed that Avalon Hills was not providing medical oversight in accordance with Optum’s Level of Care Guidelines. [Curiously, Optum’s Guidelines do not include the DSM-V guidelines]

If that were the end of the dispute, the lawsuit would fall into that category of not atypical disputes between a medical treatment provider and insurance provider. It would have an impact upon the parties to the lawsuit but not much significance to the industry as a whole. But, that is not the end of the story. Far from it.

The lawsuit also alleges that Optum’s employees and contractors, including Dr. Randall Solomon who is based in the San Francisco Bay area began to contact the patients at Avalon Hills, and/or the parents or agents of the patients at Avalon Hills and advised them that payment was being immediately stopped and that no long term payments would be made. Optum’s employees allegedly also advised the patients that they should transfer to other facilities, most all of which had in-network contracts with Optum. These employees also told the patients or their families that Avalon Hills was not licensed to provide care and services. According to the lawsuit, the employees also stated that staff members at Avalon Hills abused patients!

The lawsuit alleges that Dr. Solomon, who was employed as an Associate Medical Director by Optum Health from January 2014 through February 2016 in the San Francisco Bay Area, [and subsequent thereto, has been used by Optum in peer-to-peer reviews] “… told insureds or their family members or agents that the Plaintiff [Avalon Hills] has used physical restraints on patients and forcibly injected them with sedatives. Specifically, Dr. Solomon told patient A.H.’s parents that A.H. had been restrained and injected against her will.” [emphasis added]

Dr. Solomon was not yet finished. According to the lawsuit, he also filed a complaint against Avalon Hills with the Utah Department of Health alleging that Avalon Hills had physically restrained and injected patients. As a result, the Utah Department of Health conducted an investigation into Avalon Hills. Its finding? It determined that Dr. Solomon’s claims were without merit.

These statements on the surface appear to be so grossly outrageous that they beggar belief. And yet, Dr. Solomon’s complaint to the Department of Health and its subsequent rejection exist. The lawsuit is pending in federal court and is a matter of public record.

And so surely, we must examine the motivations of each party. With regard to Avalon Hills, if their allegations are not true, then making such allegations in a public forum can only be looked upon as a “Hail Mary.” It would be a desperate attempt to extort Optum into making a large financial settlement in order to stay in business. This would undoubtedly be brought to light and would constitute the death knell for Avalon Hills. But, with eating disorder admissions in hospitals and treatment centers on the rise, and with Avalon Hills having a consistent patient census, that scenario seems very unlikely. Further, if the allegations of the complaint are true, then the motivation for Avalon Hills is clearly to step to the plate, to stand behind its practices and principles, to not back down and to show not just Optum, but the entire eating disorder industry that it believes in its program and will defend it.

Before exploring the motivations of Optum and Dr. Solomon, we must first question the peer review process used by Optum. First, Optum as the insurance provider has the absolute duty of good faith and fair dealing with the patient, its insured. To this end, an insurance company must investigate a claim expeditiously and reasonably and must not unduly delay in making a payment decision and rendering payment. It may also not deny a claim when there is no reasonable basis.

The peer review process is supposed to be objective. The insurance company should utilize independent outside third party doctors with experience in the medical treatments at issue. The peer review doctor is supposed to carefully review the medical records of the patient. With objectivity as the goal and with the requirement of good faith to the insured, why then is Optum employing a former employee, an associate medical director as a peer review doctor almost immediately after he left their employment? A doctor who was employed by OptumHealth in 2016. And as soon as  2017, he was the “outside” medical reviewer employed by Optum on Avalon Hills patients. Isn’t that is the very definition of the appearance of impropriety? At the same time, Dr. Solomon lists himself as a forensic psychiatrist and that his “… legal and forensic work covers a broad range of issues …” [In the practice of law, we call those persons, witnesses for hire.] In any event, it would appear as if Dr. Solomon merely went from being a paid employee of Optum to a paid “consultant” employed by Optum.

Dr. Solomon presumably has a contract with Optum. This contract involves reviewing claims being processed by Optum. Pursuant to this contract, Dr. Solomon is being paid to provide this service. Like all insurance companies, Optum is in the business of making a profit. One would be justified in wondering if Dr. Solomon, as a hired gun, did not consistently side with Optum and instead, sided with the treating medical professional and recommended payment for additional treatment, whether his contract with Optum would be renewed. The reality is that the more times Dr. Solomon sides with Optum and against the treating medical professional, the more money Optum saves and meanwhile, Optum maintains a façade of plausible deniability.

According to the lawsuit, six (6) patients were identified by their initials. In general, the cost of residential treatment is approximately $30,000 per month. The lawsuit alleges that each of these patients was contacted by employees of Optum and/or Dr. Solomon and the statements above were made to them. One can readily infer that the statements were obviously made with the intent of inducing them to leave Avalon Hills. If the patients had left, Avalon Hills would have incurred a potential loss of approximately $180,000 per month. And Optum would have financially benefitted since if the patients had gone to Optum’s in-network treatment providers, the financial exposure for Optum would be less perhaps substantially so.

Large financial exposure. Possible libel and slander. A medical career of not only a treatment center, but a psychiatrist at stake. And patients, our loved ones suffering from this disease, being treated as pawns by Optum.

If all allegations are proven to be true at trial, the ramifications of this alleged gross, outrageous conduct will echo through the eating disorder industry and insurance peer doctor review business. And the very words which constitute the bedrock of a physician’s practice … Primum non nocere … “first do no harm” will be sorely tested.

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