“Justice is the set and constant purpose which gives every man his due.”
Marcus Tullius Cicero, Orator, Philosopher
“Long is the way and hard, that out of Hell leads up to Light.”
John Milton, Paradise Lost
At the recent 2019 International Conference of Eating Disorders hosted by the Academy for Eating Disorders (“AED”), I assisted organizing a 90 minute discussion with one of the lead attorneys from the Wit v. United Healthcare case. Some of the brightest minds in the eating disorder industry attended this discussion. The insightful questions directed toward attorney Brian Hufford demonstrated a clear understanding of the significance of the case and its possible future ramifications and impact on families and patients undergoing treatment.
One of the questions proffered was whether doctors, counselors, therapists and treatment providers can already start to use the ruling and the language within the ruling to best help their patients, and if so, how that can be accomplished.
This article will focus on responding to that question. We will analyze findings within the ruling that treatment professionals can utilize when conducting preauthorization or peer-to-peer reviews or appeals with medical providers used by UBH/Optum. Arguably, the arguments can also be used with other insurance benefit providers but some of the discussions will have to be specially tailored to fit the company involved and the types of treatment at issue.
Undoubtedly, UBH/Optum may attempt to argue the ruling is merely a preliminary ruling subject to appeal. UBH/Optum may also argue that the Court did not specifically enter an injunction preventing it from continuing to rely upon its now disgraced guidelines. They do so at their peril.
These arguments are tantamount to saying, “We understand a Court determined we did not comply with our duty of good faith and fair dealing with our insureds. We understand the Court found our guidelines were woefully inadequate. We understand the Court held that our guidelines did not comply with the applicable standard of care. We understand the Court determined our doctors and expert witnesses were not credible. Nonetheless, we are going to continue to let Rome burn while going scorched earth on our insureds.”
Stand your ground.
Summary of Considerations and Arguments
- Understand that UBH’s treatment guidelines were found to not comply with generally accepted standards of care. UHB violated its sacred duty of good faith and fair dealing with its insureds, your patients in devising, implementing and enforcing these Guidelines.
- Focus your requests for preauthorization and peer-to-peer reviews on these generally accepted standards of care and not UBH’s discredited guidelines. UBH’s guidelines do not comply with the generally accepted standards of care. Do not initially focus on the patient.
- Be familiar with the legal interpretation used by the Court in Wit as to what constitutes the generally accepted standards of care.
- Insist that the Peer Review Doctor disclose the exact criteria they are relying upon in reviewing your patient’s request for treatment. Although UBH is not legally prohibited at this time from continuing to use its Guidelines, these Guidelines do not comply with the generally accepted standards of care. Therefore, does reliance on discredited Guidelines constitute possible malpractice by the Peer Review Doctors and subject them to disciplinary action?
- According to the Wit decision, Peer Review Doctors do not have the authority to make clinical decisions which contradict or violate these discredited Guidelines. Therefore, determine the exact basis those Peer Review Doctors have for refusing initial treatment or denying additional treatment.
- Finally, make your case as to why your patient requires additional treatment under the generally accepted standards of care using the objective criteria set forth in the Wit (condensed below)
- Be Bold. Be Resolute.
Argument One – Focus on their discredited guidelines
Your initial focus MUST be on UBH’s failed Guidelines and not the patient. Again, YOUR INITIAL FOCUS MUST BE ON THEIR DISCREDITED GUIDELINES AND NOT THE PATIENT!
This may seem counter-intuitive. After all, you may believe it is the patient that is the issue. You may believe it is the patient’s health and treatment at issue. It may be the way you have always conducted peer-to-peer reviews. We now know there is a new reality. Your patients, their insureds are merely corporate commodities and are being treated as such by UBH.
\Mental health parity may define the game. But, the insurance company’s guidelines define the rules of the game.
If you do not know the rules of the game, how can you possibly play the game to the best effect for your patient? If the rules of the game have always been stacked against your patient, and those rules have now been thrown out, what is the insurance company and their peer review doctor going to rely upon? At this point, they only have one safe, credible criteria upon which they can rely. One criteria which complies with the insurance company’s duty of good faith and fair dealing. One criteria which protects their own credibility and insulates them from possible board complaints. And that is, the generally accepted standards of care.
If you choose to continue to first focus on the patient, your patients will continue to lose. You are playing by their rules. Rules which have been discredited and shown to not comply with the generally accepted standards of care.
When attorneys litigate a case, the attorney who successfully “frames the issues” in the case prevails the vast majority of the time. “Framing the issues” simply means successfully telling the judge or jury what the case is “really” about. This causes the opposing party to change their strategy, address and focus on the issues you wish to illuminate. In the Wit case, the plaintiffs’ attorneys successfully prosecuted the case as a breach of the insurance company’s fiduciary duties to the insured. The attorneys did not have to argue that the game itself, mental health parity was violated. Instead, they argued the rules of the game, the guidelines were grossly unfair if not predatory.
Argument One – Frame the Issues! Initially, focus on UHB’S lack of credible guidelines, guidelines which have been discredited and which do not comply with the generally accepted standards of care.
Argument Two – Know the legal interpretation of the generally accepted standards of care
What are the accepted standards of care? Medical providers work with and comply with the accepted standards of care on a daily basis. And yet, it is peculiar that a magistrate judge in San Francisco nonetheless identified what those standards were. The manner in which a judge or arbiter is likely to interpret this issue is crucially important. Once you know these standards, you have additional evidence and arguments to fight for the rights of your patient.
Criteria Relied Upon
The Court in Wit relied upon the following criteria in determining the generally accepted standards of care:
1) The American Society of Addiction Medicine Criteria (“ASAM Criteria”);
2) The American Association of Community Psychiatrist’s (“AACP”) Level of Care Utilization System (“LOCUS”);
3) The Child and Adolescent Level of Care Utilization System (“CALOCUS”) developed by AACP and the American Academy of Child and Adolescent Psychiatry (“AACAP”), and the Child and Adolescent Service Intensity Instrument (“CASII”), which was developed by AACAP in 2001 as a refinement of CALOCUS, and;
4) The Medicare benefit policy manual issued by the Centers for Medicare and Medicaid Services (“CMS Manual”).
The Court also found generally accepted standards of care included:
1) The APA Practice Guidelines for the Treatment of Patients with Substance Use Disorders, Second Edition;
2) The APA Practice Guidelines for the Treatment of Patients with Major Depressive Disorder, and;
3) AACAP’s Principles of Care for Treatment of Children and Adolescents with Mental Illnesses in Residential Treatment Centers.
The Generally Accepted Standards of Care
Based upon the evidence, testimony and the criteria set forth above, the Court determined that the following standards are generally accepted in the field of mental health and substance use disorder treatment and placement.
- It is a generally accepted standard of care that effective treatment requires treatment of the individual’s underlying condition and is not limited to alleviation of the individual’s current symptoms.
- It is a generally accepted standard of care that effective treatment requires treatment of co-occurring behavioral health disorders and/or medical conditions in a coordinated manner that considers the interactions of the disorders and conditions and their implications for determining the appropriate level of care.
- It is a generally accepted standard of care that patients should receive treatment for mental health and substance use disorders at the least intensive and restrictive level of care that is safe and effective.
- It is a generally accepted standard of care that when there is ambiguity as to the appropriate level of care, the practitioner should err on the side of caution by placing the patient in a higher level of care.
- It is a generally accepted standard of care that effective treatment of mental health and substance use disorders includes services needed to maintain functioning or prevent deterioration.
- It is a generally accepted standard of care that the appropriate duration of treatment for behavioral health disorders is based on the individual needs of the patient; there is no specific limit on the duration of such treatment.
- It is a generally accepted standard of care that the unique needs of children and adolescents must be taken into account when making level of care decisions involving their treatment for mental health or substance use disorders.
- It is a generally accepted standard of care that the determination of the appropriate level of care for patients with mental health and/or substance use disorders should be made on the basis of a multidimensional assessment that takes into account a wide variety of information about the patient.
Argument Two – These objective guidelines and criteria are determinative and must be utilized by both treating doctors and doctors employed as peer review doctors. If the peer review doctor does not recognize, comply with nor utilize these standards, questions can then be raised regarding that doctor’s competence and objectivity.
Argument Three – UBH/Optum’s Guidelines were determined to be unreasonable and do not reflect the generally accepted standards of care.
The Court in Wit specifically held: “Applying the standard of review discussed above, and based on the Findings of Fact related to the challenged Guidelines and UBH’s Guideline development process, the Court finds, by a preponderance of the evidence, that UBH has breached its fiduciary duty by violating its duty of loyalty, its duty of due care, and its duty to comply with plan terms by adopting Guidelines that are unreasonable and do not reflect generally accepted standards of care.” [emphasis added]
The Court also found, “In this case, the denial letters (or in a few cases, the case notes) reflect that each class member’s denial was based on UBH’s determination that the member failed to meet the criteria in UBH’s Guidelines. See Trial Ex. 896 (Class List stipulation); Trial Ex. 894 (denial letter and case note excerpts for Claim Sample).”
Since UBH’s guidelines were found to be defective and do not comply with the generally accepted standards of care, and each denial was based on those faulty Guidelines, it is axiomatic that each denial for treatment for all of the Class Members was improperly denied. If UBH’s peer review doctors continue to rely upon those Guidelines, they in essence will be committing medical malpractice. And once again, UBH will be violating its duty of loyalty, good faith and fair dealing.
And yet, why can’t the peer review doctor simply disregard the Guidelines and recommend compliance with the generally accepted standards of care? … Because UBH’s Guidelines do not allow this.
UBH/Optum’s employees and peer review personnel do not have the authority to contradict or violate the Guidelines.
A peer-to-peer review is typically done as a scheduled telephone call between the Peer Review physician acting on behalf of the insurance provider, and the healthcare professional who requested the review. The Peer Reviewer applies the health plan’s medical coverage guidelines to the clinical information, is supposed to use clinical judgment, and renders a decision. Although the Peer Reviewer is a delegate of the insurance company, and is paid by the insurance company, allegedly the Peer Reviewer receives no financial incentive to deny or to approve a request. And yet, even a cursory investigation reveals that numerous peer review companies exist and market themselves with some even touting its transparent, competitive pricing.
In the Wit case, the Court noted the following: “A Peer Reviewer’s job is to decide, for each request for coverage, whether the prescribed treatment meets the criteria set forth in the Guidelines. Trial Tr. 725:18-726:11 (Triana); Trial Tr. 1102:17-19 (Martorana); see also Trial Exs. 256-0018, 257-0020, 258-0018,259-0019, 260-0010, 261-0012, 262-0013 (Utilization Management Program Descriptions); Trial Tr. 309:15-18 (“UBH bases coverage determinations on the Level of Care . . . Guidelines, the Coverage Determination Guidelines . . . , and/or the psychological and neurological testing guidelines.”) (Niewenhous quoting Trial Ex. 735-0026). testifying that Peer Reviewers can depart from the Guidelines if their clinical judgment “takes them there”); Trial Tr. 1404:25-1405:2 (Allchin) (testifying that he had issued coverage determinations that were inconsistent with the Guidelines and had not required authorization to do so).”
The Court found this testimony to not be credible when it stated: “Dr. Simpatico’s opinions about the Guidelines were premised on the assumption that practitioners making medical necessity determinations for UBH are authorized to ignore the plain language of the Guidelines when it is inconsistent with generally accepted standards of care. The evidence presented at trial does not support that assumption. While the Guidelines allow for some exercise of clinical judgment, they are the criteria against which UBH Peer Reviewers make clinical coverage determinations, and they are mandatory. Trial Tr. 732:20-733:3 (Triana). Because there is no evidence in the record that the words in the Guidelines can be ignored by the Peer Reviewers when they are in conflict with generally accepted standards of care – or that they are, in fact, used that way – the Court finds that Dr. Simpatico’s testimony on the question of whether the Guidelines are consistent with generally accepted standards of care was not credible.” [emphasis added]
The Peer Review doctors do not have authority to make treatment decisions which contradict the guidelines. These guidelines have been conclusively shown to not comply with the generally accepted standards of care. Therefore, on what possible basis do the Peer Review doctors and/or insurance company have for denying coverage for treatment, which the attending physician states is necessary in accordance with the generally acceptable standards of care?
The Peer Review Doctors are faced with a “Morton’s Fork” dilemma. UBH mandates that clinical coverage determinations must be made in accordance with their Guidelines. But, those Guidelines violate the generally accepted standards of care and violate their duty of good faith and fair dealing with their insureds. Therefore, if the Peer Review Doctor issues a treatment decision in accordance with those Guidelines, he/she is arguably committing medical malpractice, is violating the insured’s/patient’s rights and could be subjecting themselves to disciplinary proceedings by State Boards of Medicine. But, if the Peer Review Doctor issues a decision which violates the UBH Guidelines, they could be in breach of their contract with UBH and have their contract terminated.
Clearly, UBH and the Peer Review Doctors epitomize the Bard’s expression, “Hoisted with his owne petard.”
We will now focus on a few of the Court’s more specific rulings which could assist you in your interaction with Peer Review Doctors.
UBH/Optum’s guidelines violate the standard of care pertaining to placement into and movement among levels of care.
It is a generally accepted standard of care that patients should be placed at the least restrictive level of care that is both safe and effective and that practitioners should err on the side of caution when there is uncertainty by placing patients at the higher level of care. Further, the fact that a lower level of care may be less restrictive does not justify moving the patient to that level of care if it is also likely to be less effective in treating the patient’s overall condition – including the underlying condition and any co-occurring conditions – even if movement to the lower level of care may be safe.
UBH’s Guidelines do not adhere to these principles. The Court noted: “Instead, they actively seek to move patients to the least restrictive level of care at which they can be safely treated, even if a lower level of care may be less effective for that patient.”
“It is a generally accepted standard of care that where there is uncertainty as to the likely effectiveness of different proposed levels of care, practitioners treating patients for mental health and substance use disorders should exercise caution by selecting the higher level of service intensity. See Trial Ex. 653-0007 (LOCUS) (stating that when there is “ambiguity” with respect to the appropriate level of care practitioners should assign the “highest score in which it is more likely than not that [at] least one criterion has been met should generally be assigned” so that “errors [regarding the appropriate level of service] will be made on the side of caution”)”
Finally, the Court held, “Placement in a less restrictive environment is appropriate only if it is likely to be safe and just as effective as treatment at a higher level of care in addressing a patient’s overall condition, including underlying and co-occurring conditions.”
The Court found that UBH violated this accepted standard of care.
UBH/Optum excessively over-emphasized financial considerations and ramifications when it generated its Guidelines.
The Court placed great emphasis on the manner in which UBH/Optum originated, adopted and amended its guidelines. The Court ruling contains numerous references to an improper emphasis on financial consideration and not medical guidelines.
The Court specifically held:
“In any event, 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. See, e.g., Trial Ex.768-0009 (2014 presentation describing “[c]ontinued use of concurrent review to ensure appropriate utilization” as the “Mitigation Strateg[y]” for Parity’s “[r]emoval of day and visit limits on IP, Intermediate and OP”); Tr. 307:4-24 (Niewenhous).”
“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.” “Despite the clear consensus among UBH’s addiction specialists that the ASAM Criteria were preferable to UBH’s own Guidelines from a clinical standpoint, UBH consistently refused to replace its standard Guidelines with ASAM Criteria without first obtaining approval from the Finance Department.
UBH/Optum’s guidelines emphasized acute symptoms at the expense of chronic underlying conditions and co-current illnesses.
The Court extensively reviewed the Guidelines and other related documents submitted by UBH. The Court found that UBH’s Guidelines were sorely lacking.
“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. While the particular form this focus on acuity takes varies somewhat between the versions, in each version of the Guidelines at issue in this case the defect is pervasive and results in a significantly narrower scope of coverage than is consistent with generally accepted standards of care.”
“The primary focus of the Guideline development process … was the implementation of a “utilization management” model that keeps benefit expenses down by placing a heavy emphasis on crisis stabilization and an insufficient emphasis on the effective treatment of co-occurring and chronic conditions.”
Finally, the Court determined, “For the reasons discussed above, those Guidelines embody a much narrower focus aimed primarily at alleviating acute symptoms and managing crises while ignoring the question of whether treatment is likely to be effective in addressing the member’s underlying condition or, in UBH’s words, supporting the member’s “broader recovery, resiliency and wellbeing.”
UBH/Optum’s guidelines violate the standard of care with respect to treatment of children and adolescents.
Of the many faults and misdeeds perpetrated by UBH, its knowing violation of the standard of care for treatment of children and adolescents is perhaps the most reprehensible. The Court in its ruling stated:
“One of the most troubling aspects of UBH’s Guidelines is their failure to address in any meaningful way the different standards that apply to children and adolescents with respect to the treatment of mental health and substance use disorders. Throughout the Class Period, UBH failed to adopt separate level-of-care criteria tailored to the unique needs of children and adolescents. Nor do the Guidelines instruct decision-makers to apply the criteria contained in the Guidelines differently when the member is a child or adolescent.”
The Court attacked the credibility of the expert witness retained by UBH wherein it stated,” … his testimony that UBH’s Guidelines are consistent with generally accepted standards of care with respect to the treatment of children and adolescents, which he based primarily on the “clinical best practices” in the Guidelines, was not persuasive in light of his admission that the unique factors that relate to the placement of children and adolescents are absent from the coverage criteria in the Guidelines. See Trial Tr. 1377:13-20 (Allchin) (testifying that the clinical best practices section contains “sufficient detail to tease out aspects that are developmentally related” to make up for the lack of coverage criteria tailored to young people).”
Ad infinitum is a Latin phrase roughly translating to “again and again, in the same way, forever.” The Wit decision is a 106 page “Perfect Storm” revealing the blue print dissecting the manner in which an insurance company can ignore the mandates of the Mental Health Parity Act of 2008 and the Affordable Care Act.
The message to our medical providers, our therapists, our counselors, our treatment providers has never been clearer. The game has changed. The rules have been thrown out. It is your turn now. It is your time now. You know how to attack the insurance companies and the Peer Review doctors. The method of obtaining life saving treatment for your patients, our loved ones is set forth above. And the only issue is… what are you going to do about it?
This article could go on for thousands of additional words detailing the manner in which the Court dissected UBH’s bad faith conduct and emphasis on increasing its profit margin at the expense of the lives of your patients, their insureds, our loved ones.
United Healthcare reported net profit in 2017 of $163.3 billion.
Optum reported a profit of $91.2 billion for 2017.
Approximately 8500 people in the United States died as a direct result of eating disorders in 2017.
For each child … for each loved one … for each beloved soul taken … UBH earned a net profit of $29,882,352.00 for each life taken by this disease. Approximately $29,000,000 per hour. Every hour. Every day. Every week. Every month.
29,882,352. The same approximate number of people in the United States who will suffer from this disease.
Doctors, counselors, therapists, medical professionals … It is YOUR time. It is our time.
One life = $29,882,352.00.
One Life. One Precious Life.