Most people know the term “a red herring.” A red herring is a diversion, something that misleads or distracts from a relevant or important question. In a literal sense, there is no such fish as a “red herring.” Instead, it refers to a particularly strong kipper, a fish (typically a herring) that has been cured in brine or heavily smoked. This process makes the fish particularly pungent smelling and with a strong enough brine, turns its flesh reddish.
The term was popularized in the early 1800s by English pamphleteer, William Cobbett. He wrote a story about dragging a kipper (a strong-smelling smoked fish) across trails to divert hounds from chasing a hare.
A red herring may be a logical fallacy or a literary device that leads readers or audiences toward a false conclusion. And we must be particularly careful to know the difference between a “red herring,” and actual issues which confront us.
On September 5, 2019, the case of Susan Hering, on her own behalf and as the representative of her beneficiary daughter, and on behalf of others similarly situated vs. New Directions Behavioral Health, LLC and Blue Cross Blue Shield of Florida, Inc., Civil Action No. 6:19-cv-01727-RBD-DCI was filed in the United States District Court for the Middle District of Florida.
The case was assigned to the Honorable Roy B. Dalton, Jr. Judge Dalton was nominated to the bench by President Barack Obama in 2011. He is the 2019 recipient of the Chief Justice’s Distinguished Federal Judicial Service Award. This award recognizes an active or retired federal judge for outstanding and sustained service to the public, especially as it relates to the support of pro bono legal services. In addition, Judge Dalton was recognized for his work in assisting plaintiffs pro se, that is those litigants who cannot afford an attorney and who represent themselves.
So why are those facts significant? Judge Dalton is the type of judge who is looked upon in the legal community as being more “plaintiff friendly.” Initially, this bodes very well for the plaintiffs in the Hering case.
And why is this significant and what does this have to do with the eating disorder industry? The Hering case in many ways mirrors the Wit case filed in San Francisco by the Zuckerman law firm. The same law firm represents the plaintiffs in the Hering case. Brian Hufford, who spoke at the 2019 AED ICED Conference in New York, upon being admitted for the Hering case will be one of the lead attorneys. And this time, Blue Cross is the prey.
Briefly Revisiting Wit
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 have yet to be finalized.
The judge in the Wit case found that UBH implemented guidelines which did not comply with any applicable standards of care, that UBH sought the input of their accounting department to lessen the benefits they would be forced to pay and they acted in bad faith toward the persons, their insureds, with whom they have an absolute duty of good faith and fair dealing.
Assuming the court grants Plaintiffs’ request for remedies, a Special Master will be appointed to create treatment guidelines with which UBH will be forced to adhere. 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 regarding those 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. UBH will be prohibited from utilizing its former, unfair and biased guidelines. And the eating disorder industry has been shut out from drafting those 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.
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 yet, no eating disorder specific guidelines will be utilized in assessing eating disorder claims. And why is that?
Because there ARE no eating disorder specific guidelines generated by the eating disorder industry which were looked upon as being authoritative enough to establish the applicable standard of care.
The eating disorder industry in the United States has not been able to collaborate and devise generally accepted, 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.
It is too late for the eating disorder industry with regard to the Wit case.
So, a Special Master will be tasked to do what the eating disorder industry has not been able to do in its entire existence, that is, to craft generally accepted eating disorder guidelines with which an insurance benefit provider will have to comply.
Let that sink in.
A Special Master, presumably one or more people who do not have a lifetime of training in treating eating disorders will be tasked by a United States District Court judge to draft treatment guidelines for eating disorders. Guidelines with which UBH will have to comply.
And if each and every person and organization who claim to have the expertise, desire and ability to craft guidelines designed to save the lives of those suffering from eating disorders do not have overwhelming and incredible feelings of shame, they damned well should.
YOU have failed the eating disorder community.
YOU have failed each and every person whose lives were ripped away by eating disorders.
YOU have failed each and every family who had a loved one taken by eating disorders.
YOU have failed each and every person who struggled, fought with and were scarred and damaged by eating disorders.
YOU … HAVE … FAILED!
And while Rome burned, what has the eating disorder industry been doing? At the end of August, a group which calls itself either the ED Organizations Reunion or the Eating Disorders Leadership Summit conducted a virtual meeting. [Never mind the fact that the name was purloined from a group which held meetings in 2016 and 2017 and then dissolved because of a lack of consensus and vision.] AED, EDC, Alliance for Eating Disorders, NEDA, REDC, ANAD, IAEDP, and F.E.A.S.T. met [virtually] for a “semi-regular meeting of organizations.” “Among the topics were a talking points project and how to productively address controversial issues in our field.”
One of these so-called leaders issued a statement that, “The project to agree upon statistics and talking points has been in the works for a few years, and led by informationist Millie Plotkin from the Eating Recovery Foundation’s Eating Disorders Information Gateway. (EDIG). A draft copy of the talking points is being circulated and vetted by experts in the field and we hope it will be published jointly and housed on the AED website. Having good numbers on who are affected by eating disorders that is well-sourced is an important milestone for the field.”
The final statement of this group quoted herein states, “The eating disorders community has historically avoided both conflict and collaboration, but there is too much suffering that is going unaddressed and no time to waste,” one person said after the meeting. “Where there are differences of opinion we need to face them directly. Where there are opportunities to do good work together we need to support one another.”
After decades of in depth study and research are we left with the reality that the “fearless leaders” of these organizations have finally agreed to a talking points project and how to productively address controversial issues in our field? That is it?
Nothing about pushing for funding and additional grants for research? Nothing about emphasizing treatment for those who cannot afford treatment? Nothing about recognizing the lives of those who have been taken by this disease? Nothing?
YOU HAVE FAILED US. Even our court system recognizes that you have failed us.
And yet, is it too late? Can things be salvaged?
The Hering case … a second bite at the apple
Months ago, we stated that there are other cases pending in the United States in which insurance providers’ baseless guidelines are at issue. And now, we present to you the Hering case.
Like the Wit case, Hering is a text book example of an insurance company and its servicing arm being out of control, drunk with power and concerned exclusively with increasing their profit margin. And similar to Wit, when the Hering plaintiff pleads that Blue Cross’s medical necessity criteria are inconsistent with generally accepted standards of care, no reference is made to eating disorder industry generated guidelines as constituting generally accepted standards of care. The same can be said about:
- Admission criteria for residential treatment;
- Residential continued treatment criteria;
- Medical necessity criteria, and;
- Medical necessity criteria development and adoption processes;
The closest the Hering lawsuit comes to referring to eating disorder criteria is a passing reference to the American Psychiatric Association Practice Guidelines for the Treatment of Eating Disorders, Third Edition.
The Hering case makes reference to the eight (8) generally accepted standards of care relied upon by behavioral healthcare professionals adopted in the Wit case.
In short, the eating disorder industry is on the brink of losing the ability to determine and dictate the applicable standards of care to treat eating disorders. If the plaintiffs are successful in the Hering case and the Court through a Special Master implements generally accepted standards of care and treatment guidelines which insurance companies are required to adopt and comply with, then the eating disorder professionals will have completely lost their way. Treatment will be dictated by the court system … and not by medical, mental health and research professionals.
If the eating disorder industry does not find a way to expeditiously create and implement generally accepted criteria and guidelines for treating this deadly disease, then they would have once again, failed us, failed the patients, failed the families and failed the survivors. Time waits for no one.
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.