It’s Not So Much What is Said … As What is NOT Said.

In their vanity men focus on what they wish to hear and miss the hidden meaning, the lurking threat.” 

― David Hewson, Macbeth (Adaptation)

I have recently written a few articles on the Wit v. United Behavioral Healthcare/Optum decision. We analyzed the decision and speculated as to how practitioners can start to utilize the findings of the Court. And yet, we must be mindful of the peril that lurks within the language of the Court’s decision and yet remains unspoken.

Many people believe that law schools are designed to teach its students “the law.” Those people are mistaken. The law school curriculum is designed to “retrain a person’s brain.” It seeks to have you unlearn what you have learned and to give you new tools with which you can see the world through varying and infinite shades of gray. And so, attorneys learn to read a court decision not just for the specific findings, but to also discover what was not said by the court … but is nonetheless applicable.

The daughter of one of the named plaintiffs in the Wit case, in fact, “the” named plaintiff in the case, was denied treatment at one of the Monte Nido facilities. As such, eating disorders should have been front and center with regard to the issues in the case. In determining the generally accepted standards of care, the court in Wit relied upon the following criteria:

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 relied upon these criteria when it determined the generally accepted standards of care:

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.

All of these resources are recognized as being authoritative and reputable. But, what is missing from this list?

Despite the fact that eating disorders were the core health issue for the named plaintiff’s daughter, there is no reliance, in fact there is no reference at all to any eating disorder specific practice guidelines, principles of care, or criteria utilization. Zero. Nada. Zilch.

This despite the fact that in the last 7 years, the eating disorder industry has issued the following guidelines for the treatment of eating disorders:

  1. In 2018, The Residential Eating Disorder Consortium issued its Standards of Excellence Project;
  2. In 2017, The British National Institute for Care Excellence issued its Eating Disorders: Recognition and Treatment Guidelines;
  3. In 2016, The Joint Commission issued its Eating Disorder Standards;
  4. In 2015, The American Academy of Child and Adolescent Psychiatry issued its Practice Parameter for the Assessment and Treatment of Children and Adolescents With Eating Disorders;
  5. In 2014, The Royal Australia and New Zealand College of Psychiatry issued its clinical practice for the treatment of eating disorders;
  6. In 2013, The American Psychiatric Association issued its revised Diagnostic and Statistical Manual for Mental Illnesses Fifth Edition (DSM-V)(revising the manner in which eating disorders were defined and classified);
  7. In 2012, The Academy of Eating Disorders, in conjunction with the National Eating Disorder Association and the International Association of Eating Disorder Professionals issued the final Working Draft of its Credentialing Guidelines.

Seven years. Seven different standards and guidelines. Seven different organizations. It’s as if the Marx Brothers along with the Three Stooges, Benny Hill, Lucille Ball, Laurel & Hardy and Abbott & Costello were tasked to collaborate and come up with the formula for solving one of the 7 Millennium Prize Puzzles.

And the clock is ticking.

The Next Steps in the Wit Case

The next steps in the Wit case are to frame the remedies to be awarded or assessed to rectify the wrongs that were perpetrated by UBH/Optum.

The plaintiffs’ motion for requested remedies is due no later than May 3, 2019. UBH/Optum has until June 14, 2019 to file its response and objections. The plaintiffs can then file their reply to UBH/Optum’s response no later than July 10, 2019. Anytime after July 10, 2019, the Court can issue an order regarding the requested remedies. It may be a matter of weeks, maybe even months. But, because the case now has a certain momentum, the delay in addressing the remedies is not likely to be extended.

In Wit, the Court found that UBH’s guidelines did not meet generally accepted standards of care in almost every conceivable manner. The class members in Wit are expected to number possibly as many as 70,000. To address the harm done to class members, the Court may order that an objective, blue ribbon panel be convened to draft new guidelines which meet the generally accepted standards of care for the mental illnesses (including eating disorders) involved in the case. For all of these mental illnesses at issue, the criteria for applying the generally accepted standards of care are located in the resources identified by the Court. Therefore, it will be a matter of taking the guidelines in those resources and applying them to reasonable insurance business practices which are then fairly and objectively applied to the claims.

As for eating disorders? Which of the 7 various standards will the Court apply? For that matter, will it apply any of them? It very well could be that the Court, or the panel it appoints may take the position since the eating disorder industry could not get its collective act together, it will devise its own standards and guidelines for eating disorders and enforce those.

And if that happens, and those guidelines are drafted and adopted by the Court, the ramifications for the eating disorders industry could be extreme. Assuming that fact scenario comes to fruition and the case survives the inevitable appeals including through the United States Supreme Court, the eating disorder industry would then be facing with the reality that the generally accepted standards of care were drafted and implemented without input from some of the greatest minds in the eating disorder industry.

And yet, because they survived judicial challenge and were enforced against the largest behavioral health insurer in the United States, the treatment centers, doctors, counselors, and organizations will in essence be forced to adopt those same guidelines. Failure to do so could result in accusations that the generally accepted standards of care are not being followed and as a result, malpractice claims will spike and centers which do not comply will be looked upon as “rogue” clinics placing their own confirmation bias above the needs of the patients as defined by the generally accepted standards of care.

This particular failure of the eating disorder industry is likely to be brought into the harsh light of public scrutiny. This scenario becomes very probable since the Court is likely to order UBH/Optum to establish a common monetary fund. This fund would be responsible for paying resubmitted claims of the class members or alternatively, perhaps a lump sum payment to members. Because of the size of the class and the harm suffered by them, this common fund could number in the hundreds of millions of dollars. Especially since UBH/Optum has net revenue of approximately $696,000,000 each and every day. At this point, the leering press is likely to wake up and notice that a case of significant importance which will impact healthcare nationwide is concluding. They will notice the criteria and resources cited by the Court and may also notice that guidelines for the treatment of eating disorders are conspicuous by their absence. And inquiries will begin. Uncomfortable questions will be asked.

Immediate Action is Necessary … or Forever Hold Your Peace

The clock is ticking.

The silo mentality resulting in 7 different guideline standards in 7 consecutive years from 7 different sources has come home to roost. And as a result, there is a reasonable probability that the eating disorder industry will be left with only one guideline. And that guideline will be dictated by a panel they did not appoint and cannot control and enforced by a federal district court.

A possible solution?

Collaboration on a never before seen basis resulting in expedited, standards of care which will hold up to challenges and scrutiny. A consortium of AED, the REDC, representatives from the non-profit/university based hospitals, representatives from independent treatment centers, scientists exploring the biological and genetic aspects of this disease. The collective minds in the eating disorder industry must come together now, review the reams of research conducted over the course of the past ten (10) years, include the most recent findings and studies on the biological aspects of the disease, agree on objective, standard guidelines and be prepared to inform the Wit court that these guidelines are the best, greatest hope of recovery for those suffering from eating disorders.

And it must begin now, for it may already be too late. Not this summer. Not this autumn. Not this winter. Now.

Certainly, the Wit case was a great victory for insureds and patients. And yet, it too was also a warning call to action. The stakes have been raised and have never been higher. Treatment for the many people who suffer from this disease hangs in the balance. It is past time to stand up and be counted … or forever remain in the shadows of inaction and ineptitude.

One thought on “It’s Not So Much What is Said … As What is NOT Said.

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