Wit Requested Remedies … What is Missing?

On March 5, 2019, a federal district judge in San Francisco issued a sweeping judgment holding that United Behavioral Healthcare/Optum (“UBH”) on a class wide basis, violated its fiduciary duties and improperly denied payment for treatment. The ramifications and remedies for this bad faith conduct were yet to be determined.

On Friday, May 3, 2019, the plaintiffs in the Wit v. United Behavioral Healthcare case filed their Motion for Remedies. In lay person’s language, the plaintiffs are asking the Court to assess the following remedies against UBH for its bad faith conduct:

  1. All class members (believed to be in excess of 50,000) will receive a notice detailing their rights and remedies;
  2. Any adverse determination made by UBH against the class members will be thrown out and reprocessed using new guidelines;
  3. The following three standards will be utilized to review and process the claims;

A.     For adults with a primary diagnosis of substance abuse disorder, the American Society of Addiction Medicine Criteria 2013 edition (“ASAM”);

B.     For adults with a primary diagnosis of a mental health condition, the Level of Care Utilization System, 2010 edition (“LOCUS”);

C.     For children and adolescents, the Child and Adolescent Service Intensity Instrument, 2014 edition (“CASII”).

  1. UBH is prohibited from retaliating against class members, i.e, denying reasserted claims on any additional basis or alleging financial offsets;
  2. Prejudgment and post-judgment interest will be paid to class members in accordance with their claims;
  3. UBH is prohibited from utilizing their prior guidelines;
  4. A Special Master will be appointed by the Court to develop and implement a program to train UBH’s employees, peer review doctors, external clinical consultants and any other personnel making coverage decisions;
  5. This Special Master will also train all of the above mentioned employees and consultants, and all senior and executive management on ERISA;
  6. This Special Master will design firewalls and other procedures such that no employee in the finance, accounting or affordability departments will serve on any committee implementing or having any input into clinical coverage criteria;
  7. UBH must disclose to all Plan Administrators, each state insurance regulator and the US Department of Labor that UBH was found liable for breaches of fiduciary duties and improper denial of benefits;
  8. This Special Master will serve as an independent monitor to insure that UBH complies with the Court’s orders;
  9. Attorneys’ fees to be awarded.

What is missing?

In reviewing the motion and brief filed by the plaintiffs, no request was made for hundreds of millions in damages for the class members. This is because under ERISA, compensatory and punitive damages are not available for class members. In general, the class is entitled to receive the benefits they would have received had their claims been processed properly with interest. Attorneys’ fees are available as well.

Since there will be no large, monetary award, this incredibly important case will not get the attention it deserves from the leering press, the teeming masses or the great unwashed. More’s the pity. Especially since this case, if confirmed on appeal, will change the rules.

Ramifications if Granted

UBH will have an opportunity to respond to the plaintiffs’ request. However, if the Court grants the plaintiffs’ request, the blow to UBH will be significant and far reaching. UBH has money. Its profit margins are shockingly large. Even if a large monetary award could have been assessed against it, reinsurance and/or a Lloyd’s policy would have picked up the lion’s share of a monetary award and UBH  would then go back to “business as usual.”

Instead, the relief requested impacts UBH in a potentially much more significant manner. If granted, the Court will be taking away UBH’s ability to conduct business as usual. UBH will be forced to have guidelines created and imposed upon it which comply with the appropriate standards of care. UBH will be forced to comply with those standards of care. Its employees involved in the claims process, from the lowest claims reviewer, to its management staff to its outside peer review doctors will all be required to be retrained by a Special Master about the guidelines, ERISA and bad faith refusal to comply with ERISA. Its accounting and finance departments will be banned from having any input. This Special Master will oversee the claims process and the guidelines. And UBH will be prohibited from utilizing its former, unfair and biased guidelines.

The rules will be changed. Fairness and equity will be mandated. And the class members, the people insured by UBH will finally receive what they have been paying for, fair, objective insurance benefits.

So, what is still missing?

Great news indeed. But, what is still missing from the equation?  

There will be literally hundreds, if not thousands of eating disorder claims resubmitted by the 50,000 plus class members. (Recall the daughter of one of the named plaintiffs suffers from eating disorders and was denied admission to Monte Nido) And so, what guidelines, what criteria will be utilized when these claims are resubmitted?

The general guidelines set forth in LOCUS and CASII. There are no specific, eating disorder guidelines generated by the eating disorder industry which were looked upon as being authoritative enough to establish an applicable standard of care.

The accepted statistics relied upon by the eating disorder industry indicate that at least 30 million people in the United States will suffer from eating disorders. The highest mortality rate. One person dying every 62 minutes as a direct result of this disease.

And the eating disorder industry in the United States has not been able to collaborate and come up with reliable, authoritative guidelines. Guidelines which establish generally accepted standards of care. Guidelines that could have been utilized in the Wit case. Guidelines that could have been imposed upon the largest provider of behavioral healthcare benefits in the United States. Guidelines that could have been utilized to battle insurance providers and to contradict their “toady” peer review doctors who unfairly deny requests for coverage. Guidelines that could have saved lives.

There are other cases pending in the United States in which insurance providers’ baseless guidelines are at issue. If the eating disorder industry does not find a way to create and implement generally accepted criteria and guidelines for treating this deadly disease, then arguably, aren’t they just as liable as the insurance providers for perpetuating this insidious disease?

The clock is ticking.

The time for bold action is passing us by.

And the cost for this inaction is being paid once every sixty-two (62) minutes.




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