NOW BEHOLD, THE AWFUL PRICE OF TREASON!

Mel Gibson’s epic 1995 movie, “Braveheart” told the tale of one of the Scottish rebellion led by William Wallace against King Edward I and England. The movie did take some liberties with facts and portrayed King Edward I rather harshly. It also included the largely factual torture and death of William Wallace who was found guilty of treason against the Crown.

Immediately before the start of his torture, Wallace is given the opportunity to repent and if he did, he would receive a merciful death. When he refuses, the executioner yells to the leering crowd, “Now Behold, the Awful Price of Treason!” Wallace is tortured in a particularly gruesome manner and killed.

So too, our friends at United Behavioral Healthcare (“UBH”) are facing their own calls to repent. And like William Wallace, UBH is refusing and is having to face the consequences for its own acts of treason.

In prior articles, the importance of the Wit, et al v. United Behavioral Healthcare case to the mental health industry was explained. To briefly recap, a federal magistrate judge certified that the case could continue as a class action thereby impacting as many as 50,000 insureds of UBH. Then, on March 5, 2019, that judge issued a sweeping ruling holding that UBH on a class wide basis, violated its fiduciary duties to its insureds, ran its treatment guidelines through its finance and accounting departments, and improperly denied payment for necessary treatment. The ramifications and remedies for this bad faith conduct were yet to be determined.

In order to try to minimize the damage, on September 13, 2019, UBH made an announcement regarding new level of care guidelines for treatment of mental health disorders. UBH “voluntarily” stated that it would be implementing and enforcing guidelines developed by third parties to guide payment/treatment decisions for their insureds. 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 and the Sword of Damocles was hanging over their heads.

That Sword has now dropped.

In November 2020, Magistrate Judge Spero issued a 99 page ruling setting forth the “Awful Price” UBH must pay for its “acts of treason.” That ruling is embedded here:

https://www.courtlistener.com/recap/gov.uscourts.cand.277588/gov.uscourts.cand.277588.491.0.pdf

The first indication that UBH’s “Awful Price” would be steep is contained in the first sentences of the order:

This case arises out of pervasive and long-standing violations of ERISA by United Behavioral Health (“UBH”). UBH denied mental health and substance use disorder treatment coverage to tens of thousands of class members using internal guidelines that were inconsistent with the terms of the class members’ health insurance plans. UBH engaged in this course of conduct deliberately, to protect its bottom line. To conceal its misconduct, UBH lied to state regulators and UBH executives with responsibility for drafting and implementing the guidelines deliberately attempted to mislead the Court at trial in this matter. After the trial, the Court found for Plaintiffs.”

UBH must now reprocess 67,000 claims it denied for 50,000 people from 2011 to 2017. The Court entered a permanent injunction against UBH requiring UBH to evaluate claims using independent guidelines developed by professional mental health associations instead of its internal guidelines, which it had previously used to protect its bottom line.

The injunction requires UBH to use the Level of Care Utilization System (LOCUS), Child and Adolescent Service Intensity Instrument (CASII), and Early Childhood Service Intensity Instrument (ECSII)—assessment tools developed by the American Association of Community Psychiatry (LOCUS) and the Academy of Child and Adolescent Psychiatry (CASII and ECSII)—as well as criteria developed by the American Society of Addiction Medicine.

This injunction is effective for the next ten (10) years.

The injunction also requires that UBH personnel be trained in the use of the court-ordered medical necessity criteria.

On January 27, 2021, the Court appointed Mr. Douglas Young as Special Master to oversee UBH’s claims process and to ensure UBH applies the new standards, created by professional groups including the American Society of Addiction Medicine and the American Association of Community Psychiatrists. Mr. Young has the authority to retain attorneys and assistant administrators, to engage one or more psychiatrists to engage in the claims process. UBH has the privilege of paying for all costs and expenses of the Special Master. The Court has already authorized the Special Master to retain  and engage psychiatric consultants.

The last matter to be decided by Judge Spero is the amount of attorney’s fees to be awarded to Plaintiffs’ attorneys. The Plaintiffs’ legal firms are requesting approximately $28,000,000 in attorneys’ fees and approximately $1,500,000 for reimbursement of costs and expenses. It should come as no surprise that UBH is vigorously challenging an award of fees.

It should also come as no surprise that UBH has already filed its appeal to the 9th Circuit Court of Appeals with its opening brief due March 29, 2021. The case has been placed on the calendar for oral arguments in August 2021.

The Wit case should embolden medical and mental health providers to more aggressively push back against all insurance benefits providers. In any appeals of treatment decisions, the Wit case should be cited and argued. The Austen Riggs Center, in Massachusetts reports that it has won more appeals of denied treatment since the 2019 ruling, which it cites in its responses to insurers.

UBH turned its back on its insureds and those persons and their families who suffer from mental infirmities. That is, if they ever cared to begin with. The “Awful Price of Treason” that UBH must pay is not so much the amount of attorney’s fees it will have to pay or the dollar amount in damages it will pay,  but the fact that a court was forced to step in and take control over the manner in which UBH conducts its business and how they process their claims, an integral part of its business. That price will reverberate for years.

Our families, our loved ones who die as a result of this disease will be heard. And for those who do not listen, the price that will be paid will echo through eternity.

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