“The success or failure of any government in the final analysis must be measured by the well-being of its citizens. Nothing can be more important to a state than its public health; the state’s paramount concern should be the health of its people.”
Franklin Delano Roosevelt
Legend has it that on November 18, 1307 the Swiss patriot, William Tell shot an apple off of his son’s head. One can’t help but wonder prior to this event, how many times Mr. Tell missed the target as he practiced his bowmanship. And yet it was those many misses which honed his skills, sharpened his eye and allowed him to excel when needed.
The healthcare system in the United States is broken. The health, safety and welfare of our citizens were entrusted to private enterprise … and private enterprise abused this sacred privilege.
Our feckless leaders in Washington have taken Medicare and bastardized it from a healthcare issue into a political issue. It has become a political beach ball being bounced back and forth between the “Medicare-For-All” advocates and the “System Will Work Just Fine Eventually” faction. Our broken political system and shortsighted politicians are using the lives of our beloved children to further their own ambitions. Meanwhile, the insurance industry continues to operate its money-making monopoly implementing self-serving guidelines designed to increase its profits at the cost of the health needs of their insureds, our children.
All the while, organizations in the eating disorder industry are paying large amounts of money to lobbyists in Washington and state capitals to lobby on bills concerning Medicare and Medicaid, as well as The 21st Century Cures Act and Affordable Care Act. In fact, the National Eating Disorder Association (“NEDA”), reported on its 2017 Form 990 that it paid lobbyists $178,545.00. This is $7,000 more than it paid its CEO, Claire Mysko.
In 2018, the Eating Disorder Coalition, Residential Eating Disorders Consortium and NEDA paid their combined lobbyist, Center Road Solutions $340,000.00. Up to January 1, 2018, the Eating Disorder Coalition paid a lobbyist $310,000.00.
Lobbying is big business. It requires large financial contributions, influence and power. Those lobbyists and the groups they represent must stay abreast of the latest trends in the political arena lest they meander down rabbit trails on useless, Quixotic like quests. Nowhere is this truer than with the issue of Medicare and mental health parity.
And then one day, clarity comes from unexpected sources.
The Wit Case Reveals the Target
On March 5, 2019, Magistrate Judge Joseph C. Spero of the United States District Court for the Northern District of California [San Francisco] issued a 106 page Findings of Fact and Conclusions of Law in the case of David Wit, Individually and on Behalf of Others Similarly Situated, et al v. United Healthcare Insurance Co., et al, Civil Action No. 3:14-cv-02346.
Judge Spero eviscerated United Healthcare not only for the manner in which it operated its guidelines, policies and procedures, but the very manner in which it formulated those guidelines. Each of United Healthcare’s expert witnesses were deemed not credible or only partially credible. The following findings were particularly damning:
“Financial considerations have played a significant role in the development of the Guidelines throughout the relevant class periods.”
“ …Mr. Niewenhous’s testimony … that the Guidelines were developed solely to reflect generally accepted standards of care was not credible. As discussed further below, internal UBH communications involving Mr. Niewenhous make it crystal clear that the primary focus of the Guideline development process, in which Mr. Niewenhous played a critical role, was the implementation of a “utilization management” model that keeps benefit expenses [Ben-ex] down by placing a heavy emphasis on crisis stabilization and an insufficient emphasis on the effective treatment of co-occurring and chronic conditions.”
“The Court finds, by a preponderance of the evidence, that in every version of the Guidelines in the class period, and at every level of care that is at issue in this case, there is an excessive emphasis on addressing acute symptoms and stabilizing crises while ignoring the effective treatment of members’ underlying conditions.”
“The criteria in the Guidelines that actually govern coverage determinations with respect to the treatment of co-occurring conditions, however, are not consistent with generally accepted standards of care.”
“The Court finds that the financial incentives discussed above have, in fact, infected the Guideline development process.”
“ … the record is replete with evidence that UBH’s Guidelines were viewed as an important tool for meeting utilization management targets, “mitigating” the impact of the 2008 Parity Act, and keeping “benex” down.”
“Perhaps the most telling example of the emphasis UBH placed on financial considerations in its decision making with respect to the Guidelines relates to UBH’s decision not to adopt the ASAM Criteria for making substance use disorder coverage determinations.”
The decision in Wit v. United Healthcare is a mandate for accountability. The Wit decision is a mandate for the implementation of objective guidelines. For guidelines based on generally accepted medical standards instead of unjustly enrichening insurance providers.
Each of the Court’s findings is a mighty hammer blow, tantamount to an indictment for first degree murder as United Healthcare placed the lives of its insureds at risk for the sake of unethical profiteering. And the most sacred trust bestowed upon it, that is the public health and welfare of the citizenry was abused and draconian ramifications must surely follow.
Turn the Page and Address the Issue
The Eating Disorder Coalition, in essence the legislative arm of the eating disorder industry rightly applauded the Wit decision. In a public service announcement, it stated in part: “Although Judge Spero’s decision is a step forward in holding insurers accountable for parity non-compliance, this case places a greater spotlight on the need for continued equity in treatment for patients and their families affected by eating disorders and other mental illnesses. We respect Judge Spero’s decision and remain hopeful this ruling can serve as a turning point in mental health parity compliance,” said EDC Board President, Chase Bannister, MDIV, MSW, LCSW, CEDS. “We will continue to advocate for equity in mental health treatment as a fundamental right.”
The case was not about parity.
The case was not about parity non-compliance.
The case was about one of the most historically egregious abuses of public trust bestowed upon a private entity ever perpetrated in the United States. The “spotlight” was the public disclosure of long guarded secrets held dear by insurance companies. It was about abuse of insureds. And if the ED Coalition and others continue to only trumpet the horn of “mental health parity,” and the “Bipartisan Health Care Stabilization Act of 2018” and trying to convince Tricare to cover treatment rendered at “freestanding eating disorder centers” a tremendous opportunity before us will be squandered.
Despite the well intentioned Mental Health Parity and Addiction Equity Act of 2008, parity does not and will not exist so long as the playing field remains uneven. We naively hoped that the Parity Act, the Affordable Care Act, the 21st Century Cures Act would force insurance providers to not only pay for treatment for mental health but would treat claims fairly and in a transparent manner. How foolish we were. How naïve we were. And continue to be. And this was exposed in the Wit decision.
The reality of our woeful situation is that as long as insurance providers have the unilateral ability to determine the guidelines upon which life and death decisions are made, it is irrelevant which “mental health parity” bills we continue to lobby. It is irrelevant which bills mandating additional education for doctors and medical providers are pursued. It is irrelevant how much money we pour into lobbying Tricare. It is irrelevant that as lobbyists are handsomely paid to whisper sweet nothings in politicians’ ears, our children will continue to die. We are missing the mark.
Hit the Target
The Wit decision was a mandate. Collaboration amongst mental health advocates, organizations, lobbyists and financial backers must be sought. Collaboration must be achieved. There must be one, unified goal. One common purpose. One mighty voice consisting of those who have suffered, those who have been abused, the people entrusted to be their champions … and those who have been taken.
The time is right. The time is now. Congress must implement and then oversee universal guidelines which incorporate the generally recognized, accepted standards of medical care to which insurance providers who make life and death decisions for our children must be required to comply. Ordinarily, private citizens have the right to incorporate whatever negotiated terms they wish into their private contracts. But when the public health, welfare and safety of our citizens is involved; when private entities disregard, abuse and violate the sacred, public trust to protect the health, safety and welfare of the citizenry, then surely the privilege of entering into, and dictating the terms in those private contracts lies forfeit.
That is the target. That is the apple on the head of William Tell’s son. Until the privilege to make and enforce those guidelines are taken from the exclusive province of the insurance companies and are established and enforced through objective third parties, no amount of so-called parity will ever exist let alone be effective.
And we will continue to miss the target.