On September 13, 2019, United Behavioral Healthcare through its servicing arm Optum (“UBH”) made a stunning announcement regarding new level of care guidelines for treatment of mental health disorders.
To this end, on its own website, UBH announced, “Optum is adopting the Level of Care Utilization System (LOCUS), the Child and Adolescent Service Intensity Instrument (CASII) and the Early Childhood Service Intensity Instrument (ECSII) for guidance on clinical criteria decisions for the treatment of behavioral health conditions across most Commercial and Medicaid membership.”
They also announced, “Please note, we will continue to use The ASAM Criteria, developed by the American Society of Addiction Medicine, as the clinician criteria for substance use disorder services.”
The effective dates for the implementation of LOCUS, CASII and ECSII (“L/C/E”) are as follows:
“In the following states, the adoption of LOCUS will begin December 13, 2019, with CASII/ECSII becoming effective on January 31, 2020:
A copy of UBH’s announcement is set forth below:
UBH’s announcement was nothing short of remarkable. It was also done as quietly as possible with no major press release or media involvement.
UBH is implementing and presumably will be enforcing guidelines developed by third parties to guide payment/treatment decisions for their insureds. Every clinician and provider of mental health services who accepts UBH will have to develop a greater awareness of these standards and guidelines. Coverage for treatment of mental illnesses, be it admission standards, IOP and PHP standards, requests for on-going care will become more predictable if these guidelines are adhered to by UBH. The Peer Review process arguably will dramatically change since UBH’s internal and outside peer review professionals will now have to comply with objective criteria instead of criteria vetted by the financial and accounting departments at UBH. Certainly, good news. But, this announcement also opens the door to questions.
For example, if UBH is just now embracing these guidelines, what “guidelines” were they using before? Were their prior guidelines deficient? If payment for treatment was denied using their prior guidelines, does that open the door for reconsideration of prior claims which were denied using those guidelines? Does the fact that they are adopting those particular guidelines definitively establish them as setting the benchmark criteria for generally accepted standards of care?
They attempt to answer some of these questions on their FAQ page, a copy of which is attached below:
According to UBH, they changed their prior level of care guidelines because the L/C/E “guidelines have been externally validated; that common language drives improved care and the six dimensions provide a more holistic view of acuity and chronicity of behavioral condition, thereby promoting more appropriate care for patients and a better overall experience.”
For some reason known only to God and broccoli, UBH failed to mention that they also presumably changed their guidelines because a federal court decision held their prior guidelines were grossly deficient if not outright fraudulent.
What this means for UBH’s insureds
As these guidelines are phased into UBH’s business structure, on the surface it could mean more objective, more certain, more reasoned decisions to pay for mental health treatment. It should result in fewer claims being denied. Treatment providers have direct knowledge of the guidelines being used to make payment/treatment decisions. They have their patient’s medical records and mental health condition at hand. Providers can assemble and present a more compelling case for treatment to UBH. This potentially means greater access to more life saving treatment being made available for their insureds.
On the surface.
Whether UBH will actually in good faith follow through with good faith evaluation of claims made under their new guidelines is another matter. Is it reasonable to believe that UBH received a message from God and now intends to comply with those objective guidelines and pay for life giving treatment whereas in the past, they implemented policies designed to not only evade the Mental Health Parity Act of 2008 but which inflicted actual harm upon their insureds?
The $64,000 Questions
UBH’s bad faith was exposed by the court in the Wit case. Are we now to believe that they have “turned over a new leaf,” and are ready to put the needs of their insureds over corporate profits? The answer to this question could lie in looking at the Announcement and the FAQ page on the Optum website.
To begin with, on UBH’s Announcement, it states, “Please note, we will continue to use the ASAM Criteria, developed by the American Society of Addiction Medicine, as the Clinician criteria for substance use disorders.” The problem is … the Court in Wit specifically found that UBH did NOT comply with the ASAM Criteria! The Court specifically held:
“UBH’s Guidelines deviate from these [ASAM] standards in a multitude of ways, as set forth above. This has been the case throughout the Class Period, including before and after the 2013 publication of the ASAM third edition. Indeed, in an internal UBH email exchange in 2012 with the subject line “Use of ASAM criteria poll,” one of UBH’s regional medical directors opined that the ASAM Criteria “usually will result in more authorization as they are more subjective and broader than our LOCG/CDGs.” See, Wit Order at paragraph 150.
UBH claims they are adopting the new guidelines because those guidelines have been externally validated, the common language drives improved care and, ” … The six dimensions provide a more holistic view of acuity and chronicity of behavioral condition, thereby promoting more appropriate care for patients and a better overall experience.”
In essence, UBH claims that these changes were done out of a magnanimous sense of obligation to their insureds. The insureds with whom they have a fiduciary relationship. The insureds with whom they have a duty of good faith and fair dealing. The insureds whom the Wit court found they betrayed. The insureds they lied to in their Announcement.
In the last day, I have spoken with a number of people insured by UBH. I asked if they have heard of, or received anything from UBH about this incredible advancement. Each person said “no.”
If this decision was made solely because it was in the best interest of their insureds, that UBH was only thinking about the mental health of their insureds, isn’t this news that UBH would trumpet on all social media sites? With the PR machine that a multi-billion dollar conglomerate like UBH owns and controls, you could have news stories in every major newspaper and on every major network. Imagine the positive press you could engender from this type of announcement. And yet, nothing. Nothing reported on the Optum social media sites. Nothing on the UBH social media sites. No news stories. No internet stories. Just one story on UBH’s own website. Why? Don’t your insureds have a right to know this information? Don’t the doctors and treatment professionals fighting with UBH’s peer review doctors on a daily basis have a right to know this information?
UBH certainly did not simply undertake this change and unprecedented conduct out of the goodness of their hearts or for philanthropic reasons. So, why did they undertake this action and why now?
The obvious answer is that their conduct came about because of the Wit case.
A Brief Recap of Wit
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 [Judgment] 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.
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”) [now adopted by UBH];
2) The American Association of Community Psychiatrist’s (“AACP”) Level of Care Utilization System (“LOCUS”) [now adopted by UBH];
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 [CASII now adopted by UBH];
4) The Medicare benefit policy manual issued by the Centers for Medicare and Medicaid Services (“CMS Manual”).
Is it a mere coincidence that UBH announced it was going to utilize LOCUS, CASII, ECSII and ASAM? These are the very criteria relied upon by the Court in Wit in determining generally accepted standards of care. Only after being pushed against the wall did UBH finally acquiesce and undertake conduct which should have been taken many years ago.
Generally accepted standards of care for mental health. Objective third party criteria establishing generally accepted standards of care for the treatment of mental illnesses. Adopted by a federal court and now being adopted by the United States largest provider of payment services for mental health claims. The importance of this announcement and its ramifications cannot be understated.
And yet, something is missing. What about eating disorders?
The Eating Disorder Industry’s Lack of Generally Accepted Standards
We previously set forth that in the international eating disorder industry, seven (7) different organizations had published seven (7) different standards in seven (7) consecutive years. So, which of the (seven) 7 various standards did the Court adopt?
Now, consider the lost opportunity. Had the eating disorder industry put aside its collective egos, and silo mentality, and ivory towers, and insular private equity financial reality, standardized criteria leading to generally accepted standards of care could have been thoroughly vetted and adopted by the industry. In all reasonable likelihood, the Court would have adopted these standards and guidelines. And it is likely that UBH would now be adopting those standards as well. But now?
It very well could be that the Court, through the Special Master it appoints may take the position since the eating disorder industry could not get its collective act together, it will appoint its own experts and 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 and enforced against UBH, the ramifications for the eating disorders industry could be extreme. Assuming this 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 faced with the reality that its 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.
That is the reality the eating disorder industry faces today. The clock is ticking. The Hering case filed in Florida tracks the Wit case and if it proceeds like the Wit case, the court in Florida could, and in all legal probability, will adopt and enforce the rulings from the federal court in San Francisco.
The clock is ticking.
The eating disorder industry can no longer hide and play the safe, wait and see game. Universal guidelines will be adopted in the very near future. The biggest question the eating disorder industry faces is, “Will we bit a part of it?”