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”).

4. UBH is prohibited from retaliating against class members, i.e, denying reasserted claims on any additional basis or alleging financial offsets;
5. Prejudgment and post-judgment interest will be paid to class members in accordance with their claims;
6. UBH is prohibited from utilizing their prior guidelines;
7. 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;
8. This Special Master will also train all of the above mentioned employees and consultants, and all senior and executive management on ERISA;
9. 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;
10. 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;
11. This Special Master will serve as an independent monitor to insure that UBH complies with the Court’s orders;
12. 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.

“Transparency is critical in public health and epidemics; laypeople become either effective force-multipliers or stubborn walls.”

            – T.K. Naliaka, Author

“The overarching purpose of access to information … is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.”

            – Gerard LaForest, Justice, Supreme Court of Canada (1997)

Once again, the EDC Capitol Hill Advocacy Day is upon us, this year scheduled for May 7, 2019. For $30 and if you can afford to pay your own transportation, lodging, and travel expenses to Washington, D.C., you have the opportunity to participate in this day. So, what exactly does that day consist of and what is the agenda being pursued? Therein lies the question … and the conundrum.

Ostensibly, The Eating Disorder Coalition (“EDC”) is the lobbying arm of the eating disorder industry and acts as a liaison with politicians. The EDC lists some of its goals as promoting federal support for improved access to care, increase funding and support for scientific research on etiology, prevention and treatment of eating disorders and mobilizing concerned citizens on behalf of people with eating disorders, their families and professionals in the field.

The current president of the EDC is Chase Bannister. At an eating disorder organization event this past weekend, Mr. Bannister was the co-presenter on a session entitled “We the People: The Practice & Ethics of Eating Disorders Advocacy.” This organization noted, “In this keynote session, participants will learn how clinicians, individuals in recovery, and loved ones join forces to help influence public awareness and public policy as it relates to early-intervention, access to care, and treatment of eating disorders. Participants will learn a history of advocacy in the field of eating disorders, the ethical imperative for advocacy by clinical providers, and forward-looking pathways to engagement, including: • Connecting with local, regional, and national coalitions missioned to increase public awareness of eating disorders illnesses • Participating in state and federal lobbying efforts by writing to and meeting with legislators, policy makers, and federal agencies, with the intent to educate public officials on the severity of eating disorders illness, the impoverished research environment, and the importance of increased treatment and early-intervention resources and • Collaborating with other clinicians and the recovery community to use personal experience as fuel for fundamental grassroots change.”

All very noble and worthwhile goals and policy statements on what the EDC does or purports to do. And now, what an incredible opportunity Mr. Bannister has to put into action, words he very likely used at that conference. Especially since at no other time has the mandate for transparency been more crucial and necessary than now.

The Affordable Care Act is on life support and is unlikely to survive. It has been systematically stripped of some of its important provisions through Executive Orders,  court decisions, and people leaving the program. The Mental Health Parity Act of 2008 has been exposed as more fraud than friend. The Wit decision showcased the manner in which insurance providers sacrifice lives for profiteering. And finally, the feckless politicians in our Nation’s Capitol are solely concerned about increasing the power of their own party at the expense of the needs of the Republic.

This years EDC Capitol Hill Advocacy Day provides the EDC with the opportunity to demonstrate the manner in which it intends to adapt to this ever changing landscape, to specifically advise those it purports to represent, i.e., families about the specific bills it intends to pursue in the future and the reasons supporting those decisions. And just as importantly, to identify its large, financial backers and the amounts contributed by those shadowy figures.

The Healthcare System in the US is Shattered

Saying the healthcare system in the United States is broken does not adequately describe the existing chaos. The system is shattered. The problems are legion. Many of the issues in the system today are new and constantly evolving. Some of the issues were brought about by past incompetence and/or lack of vision. Shaking our fists at the clouds as we loudly chant the mantra of, “Mental Health Parity” or “Affordable Care Act” or “You children get off my lawn!” does not address nor provide solutions to the current issues.

The Affordable Care Act was an inartfully drafted, constitutionally infirm yet well-intentioned law designed to address some of the on-going problems in the healthcare industry. Some of the more well-known provisions included abolishing pre-existing conditions and allowing children to stay on their parent’s health insurance until age 26. It was also designed to slow the rise of health care costs, and required all insurance plans to cover ten (10) essential health benefits, including mental health, addictions and chronic diseases. And yet, no matter how well intentioned a law is, we are first and foremost, a nation of laws with the United States Constitution as the cornerstone of our Democratic Republic form of government. And an unconstitutional law, no matter how well intentioned cannot stand.

The Affordable Care Act barely survived its first constitutionally based challenge culminating in a narrow 5 – 4 decision from the US Supreme Court in 2012. The Court was fragmented on most of the major issues. But, the key issue, the issue that allowed the Affordable Care Act to survive, was that the individual mandate (requiring citizens to pay a penalty if they did not have insurance) constituted a valid exercise of Congressional authority under its right to levy taxes. Without that finding, the US Supreme Court in all likelihood would have found the Affordable Care Act unconstitutional in 2012. The Court certainly found other aspects of the Act were unconstitutional and cast them aside.

But, the die was cast. The Tax Reform Act of 2017 removed the individual mandate from the Act. This resulted in litigation being filed in a federal district court in Texas. Relying upon the legal reasoning and language used by the Supreme Court in 2012, the Texas court struck down the Affordable Care Act in its entirety in December 2018. The case is currently on appeal before the 5^th Circuit Court of Appeals before it winds up again before the US Supreme Court. The narrow thread which previously saved it was severed by Congress and the end result is readily predictable.

There is no Parity in Mental Health Parity

To exacerbate the current climate, mental health parity has been exposed for what it really is. On its face, the Mental Health Parity Act was designed to prevent group health insurance plans and health insurance companies whose policies provide mental health benefits from imposing less favorable benefit limitations on mental health benefits than on medical/surgical benefits. In 2017, two studies indicated that mental health parity exists mostly in name only. One industrial official stated, “In the wake of these two reports, it is clear that we simply do not have mental health and addiction parity in this country as our law and policy dictate we should.” He later said, “These analyses show a pattern of insurers avoiding their obligations and then unfairly blaming mental health and addiction treatment providers for the problem of lack of care delivery.”

The Wit case revealed the manner in which insurance companies evade their duties and responsibilities under the Parity Act. As long as insurance companies have the sole and absolute privilege of drafting and implementing their own guidelines in insurance policies there will be no parity. And there are only two ways to change that reality … through the court system or through legislative action.

The Clown Show in D.C.

The health, safety and welfare of it citizenry is a noble trust possessed by federal and state governments. And yet, wise collaborative legislation designed to help people first attain and then keep that status is seemingly beyond the imagination of those pale shadows currently occupying the highest echelons of political office.

The lust for increasing the power of their own party predominates. Ignoring the healthcare crisis and refusing to explore any new legislation until after the next election is just as insidious as proposing ridiculous healthcare plans which violate the very basis of the foundation of our Republic, which are financially impossible to achieve and which were mere publicity stunts.

And like two children playing in the sand box who end up throwing mud pies at each other, both Republicans and Democrats alike are ignoring the reality that our cemeteries are being needlessly filled by those whose lives were taken because they could not afford potentially life saving care.

This is the current situation facing lobbyists in our Nation’s Capitol. This is the current situation facing EDC.

Where is EDC going?

Because of these, and many other reasons, the people who are spending their time and money to come to Washington for Advocacy Day should be apprised of the specific bills EDC has handsomely paid a lobbyist to pursue in the past and the manner in which EDC’s outlook is necessarily evolving with the changing times.

Now, I have the ability to locate and interpret the Quarterly Lobby Reporting Forms, (or LD-2 Reports) that the lobbyist employed by EDC is required to file as a matter of public record. But, hopefully Mr. Bannister will embrace the opportunity to educate the people coming to D.C. for EDC’s Advocacy Day before they arrive so they will have a chance to conduct their own research into the specific bills. I am equally confident that EDC will widely publish this information across various social media outlets. After all, Mr. Bannister just spoke about ethics in advocacy on April 13.

Along these lines, we welcome Mr. Bannister to identify the large financial contributors to EDC who make it possible for EDC to pay a lobbyist in excess of $100,000 annually. The EDC is a 501(c)(4) organization. As a 501(c)(4) organization, EDC can spend an unlimited amount of money on politics without having to disclose its donations. And yet, it is axiomatic that entities will only contribute large amounts of money for political purposes if their own agendas are being pursued.

This is certainly in keeping with transparency and ethics in advocacy. Qualities that Mr. Bannister surely embraces. So for the benefit of those who at their own expense are coming to EDC Advocacy Day, for the benefit of those families who are so impacted by this disease, for the benefit of the eating disorder industry and community, request is made that EDC and Mr. Bannister educate all of those groups with the information respectfully requested … before Advocacy Day.

As a final aside, on March 26, in a press release the EDC stated the following: “It is unconscionable that the Trump Administration would not only fail to support a law that provides health coverage for millions of American families, but also not have an alternative plan in place,” said EDC Board President Chase Bannister. “On May 7th, advocates from across the United States will arrive in Washington, D.C. for the EDC Capitol Hill Advocacy Day, and there is no question this will be on our legislative agenda—voicing our support for the ACA and its importance for those in our community.” “Despite the efforts of the Trump Administration to undermine the health care of Americans …”

If the EDC’s agenda consists of supporting a law that is on life support and which has been steadily eroded since its inception and in antagonizing the White House and the party which controls the US Senate, which in turn, controls the federal court system, the EDC may wish to rethink its agenda, its purpose and the people it claims to represent. Unless of course, that agenda is solely set by the big money entities which keep the EDC alive.

We eagerly await the EDC informing us as to the bills, the reasons those bills are being pursued and information regarding its financial structure.

“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.

Over the course of the past few years, I have had the privilege of meeting some of the most influential people in the mental health/eating disorder industry. Research scientists whose brilliance and insight into the biological and genetic aspects of this disease awe and overwhelm me. Leaders of global organizations whose heart and compassion bring light and faith into the lives of everyone they meet.

Doctors whom I admire because they have started mighty networks of treatment centers, which if successful in the long term will save countless thousands of lives.

Parent advocates whose passion and drive to help others provide a safe refuge for parents overcome by fear because their loved ones are in the deadly grip of this disease. Counselors and therapists on the front lines, fighting this disease every day.

Becoming learned about the growing national issues of private equity ownership, insurance guidelines being challenged in courtrooms, mental health parity debates, controversial research studies in far distant corners of the earth and the reality that eating disorders are “big business,” but are not being treated as such.

As a result, sometimes we may not recognize when an opportunity arises to meet one of the “Points of Light” for whom we are fighting. When we find ourselves caught up in the immensity of the struggle, it may take just one, solitary young woman caught up in the horrible grip of this deadly disease to bring home the reality of what this is all about. Our soul has a way of reminding us why we have no choice. That we must continue the fight. And in the most unlikely of ways, we may encounter a young woman who epitomizes the heartfulness … and the heartache of this insidious disease. And we are emboldened anew.

Recently, I had the privilege of playing a very small role in helping a young woman get admitted into a treatment center for much needed, life-saving therapy. Fortunately, the medical director of this facility is a strong, powerful presence and has a dedicated, experienced staff. Within an hour after I contacted this doctor, her staff had set up an appointment and the process began.

I drafted a Medical Power of Attorney, which in Texas unfortunately, is easily revoked. Nonetheless, I met the mother and young woman. And my first impression was that the Demon had this young woman fully under its power. I saw such pain, such fear. And I feared that we were too late.

Then, on the next business day, after her evaluation and check in, I received the very good news that this young woman had been accepted into the program and would be getting the help she so desperately needed. And I prayed that we were not too late.

A few days went by and I went to see the young woman. She was on a feeding tube, but looked like she had more life within her. We played banana grams, laughed, and she asked me a bit more about Morgan. At the end of visiting hours, she walked up to me, gave me an emotion-filled hug and thanked me. There was no way for her to understand at that time, that I should be the one thanking her.

I visited her the next week. This time, I brought her a tiger lily in a pot. She was allowed to see it but of course, it could not be brought back on to the floor. By this time, she was off the feeding tube and she had even more energy. “Back in the day” we would call it that she had more bounce in her step.

We walked into the visitor’s room where she guided us to a corner of the room and proceeded to sit down on the floor. With a smile on my face, I plopped down on the floor directly across from her and we started a game of double solitaire. The cards were flying, we were laughing, talking about anything and everything … except topics like “how she was doing,” or  “what happens next for her treatment.” One of the many lessons my daughter taught me about this disease was that she was “so tired of being treated like a patient, the little sick girl. She wanted to be treated like a person.” We made good natured fun of the medical director and life in general. Then as time went by, I began to notice the two other parent groups in the room with their children, occasionally looking over at us and I could see what appeared to be puzzlement on their faces.

We spoke of her dogs, what her tattoos meant, why she likes the state in which she lives, we spoke of flowers and the hour flew by. As we were walking out, again, I got a huge smile from her, this heartfelt hug and thanks from her again. This time, I could not let the opportunity pass. So, I looked her in the eyes and told her that I needed to thank her. She looked puzzled. But, I briefly explained that she had given me the chance to see hope again, to see life again, and is there any bigger present than that? One day, I hope she comes to fully understand what that present truly means.

On the elevator on the way down to the lobby, one of the moms visiting her daughter told me she could see how incredibly close I was with my daughter. I smiled at her and told her, yes we were. But, this young lady was not my daughter. I explained to her that this young lady was someone who was brought into my life for a specific reason at just the right time. 

We spoke for about 30 minutes about her daughter, who Morgan was, some of the work I have done, the eating disorder industry in general and asked her to never give up. As long as her daughter draws breath, there is hope. She contacted me the next day via email and I sent some material to her. I urged her to stay actively involved in her daughter’s recovery no matter how difficult the fight becomes.

Whenever I think of that night, of being able to just sit on the floor, I wonder how it is that certain people are brought into our lives at just the right time. I see her smiling face and remember sensing a positive hope beginning to re-enter her life. The heart felt emotional hugs.

The task before us in the eating disorder industry is daunting. The problems are even greater. Many of us undoubtedly will continue to disagree and fight. We appear before legislative bodies and large organizations. The immensity of some of the problems in the industry seem overwhelming, too big to conquer.

But, for one night, one glorious night filled with laughter and light and happiness, those overwhelming issues were put on the back burner. All that while simply sitting on the floor with one of those  “Points of Light.”

Sometimes, you just gotta sit on the floor.

Over the course of the past two months, I have penned two articles on the Fast Track to Hell-th research study being undertaken in Australia.

Like many people in the eating disorder industry and community, I spoke out against this potentially dangerous study. By speaking out, perhaps I also meant to say mocked and ridiculed the researchers who seem hell bent on proceeding with the study despite the legion of information indicating the study is ill advised and potentially dangerous.

Our colleague, Louise Adams, a Clinical Psychologist in Australia just published the latest article on the study.

Louise’s article is thorough and authoritative. As such, I cannot add anything of significance except to include it here for your reading edification:

Louise Adams – Fast Track Investigation

“Failure is simply the opportunity to begin again, this time more intelligently.”

Henry Ford

“Honesty is the fastest way to prevent a mistake from turning into failure.”

James Altucher, Author, Entrepreneur

Last week, The Morgan Foundation had the privilege of hosting a booth in the Exhibit Hall at the Academy for Eating Disorders’ 2019 ICED Conference held in New York City. During the Conference we met many incredible people engaged in the eating disorder industry.

The week prior to the Conference, the Chicago Tribune published an article containing some very alarming information regarding Timberline Knolls (“TK”) and its handling of the Michael Jacksa abuse scandal. This prompted additional investigation and based upon information gleaned, I published an article which was released during the Conference. The article echoed the information in the Chicago Tribune story but also provided additional information and facts surrounding the Jacksa Sandal. When a topic like sexual predators is involved, emotions tend to run high.

Early one morning before the crowd arrived at the Exhibit Hall, I was standing in the Morgan Foundation booth preparing for the day. Then, two individuals walked past our booth, stopped, looked at our very recognizable logo, turned and walked toward our booth. They introduced themselves and said they were from TK. My response was to respond along the lines of, “Well … the last week and a half have certainly been very challenging for you.” Emotions initially ran high and they believed my article was inaccurate and unfairly portrayed TK. Naturally, I asked for clarification and stated if any facts were shown to be wrong, as is my custom, I would issue a retraction and apology.

The senior person of the two was the current TK medical director, Dr. Johnny Williamson. Dr. Williamson and I ended up having a productive conversation. I gave some suggestions regarding the matter, we shook hands and parted. Without any reservation, I can say I have a great deal of respect for Dr. Williamson. He approached me on a topic on which he believed the facility had been wrongly portrayed and responded.

I also had the opportunity to speak with leaders in the eating disorder industry regarding the matter. When all aspects and issues about which I know were disclosed and discussed, thoughts behind this article crystallized. And so, I come not to bury Caesar, but to see, well … if Caesar can be revived.

The Scandal

On August 21, 2018, Michael Jacksa, a counselor at TK was arrested and charged with assaulting a 29 year old patient during two counseling sessions between May and June of 2018. Patients accused Jacksa of digitally penetrating their vaginas and buttocks, putting his hands beneath their clothing, fondling their breasts and forcing them to perform oral sex on him.

He was then indicted for sexually preying upon a second victim. The patient alleges that Jacksa sexually assaulted her during four therapy sessions at TK. The prosecutor said the second woman came forward after seeing media reports.

According to the prosecutor assigned to the case, at least six patients of Jacksa’s from across the country have contacted the Lemont Police Department, stating that Jacksa engaged in “inappropriate sexual behavior” during their respective therapy sessions.

And questions are being raised as to when TK knew about Jacksa and whether they allowed him continued access to patients after the allegations were made.

Sexual scandals and the #MeToo movement have brought down giants in the entertainment industry, executives in Fortune 100 companies and have reached into state and federal governments and many major corporations. It must be addressed openly and honestly and with total transparency. A failure to do so inevitably leads to severe consequences.

Frame the Issues

But first, in order to address and “get ahead” of the Jacksa Scandal, TK must become proactive. TK must act with purpose, confidence, and resolve. Both its words and actions must indicate that the Jacksa Scandal was unforeseeable and when they had information, they acted swiftly and surely. They must “Frame the Issues.”

When attorneys litigate a case, the attorney who successfully “frames the issues” in the case prevails the vast majority of the time. “Framing the issues” means successfully convincing the judge or jury what the case is “really” about. This causes the opposing party to abandon their plans and address and focus on those issues you wish to illuminate. “Framing the issues” gives you control over the issues, the information and the manner in which that information is disseminated.

If TK can find a way to “frame the issues” with regard to the Jacksa Scandal, it could take this looming disaster scenario and turn into an opportunity to become a leader in the eating disorder industry in the areas of proactive security measures and compassion for victims of sexual predators.

So, let’s look at the possible ways for TK to accomplish this.

Establish the Face of Your Organization

In five (5) years, TK has had at least five (5) Chief Executive Officers. Corporations, businesses, political parties and treatment centers get their reputation, strength, operational mandates and marching orders from their Chief Executive Officer. Dr. Ken Weiner at the Eating Recovery Center. Dirk Miller at the Emily Program. Benita Quakenbush at Avalon Hills. Rachel Levi at Shoreline Center for Eating Disorders. The largest private equity owned centers. Small independent centers. All with one thing in common. A crucially important item. Strong leadership.

With Timberline Knolls, there is no face of their program. On its website, TK currently lists Robert Turner as its CEO. Turner is an Acadia employee, a Division President. On his Linkedin profile, he does not even list CEO of Timberline Knolls as a current or past position. As an aside, there are misspelled words and grammatical errors on his Linkedin profile. Is this trivial? Or the sign of a sloppy person who is out of touch with the requirements and demands made upon leaders of companies?

To complicate matters, it appears he may not even be their current CEO. On a recent photo posted on LinkedIn, Ms. Jessica Elbe is listed as the current, interim CEO for TK. But, on her LinkedIn profile, her current position is listed as Chief Operating Officer of Seven Hills Behavioral Health Hospital in Henderson, Nevada. (Acadia owns Seven Hills).

To complicate matters even further, Sari Abromovich, on her LinkedIn profile, lists that she has been CEO of Timberline Knolls from March 2018 to present.

Three separate individuals. Each being held out or holding themselves out to be CEO. So, does TK have 3 CEOs at the same time? Or do they have none at all? Do they have one?

What we do know is that TK has no respected, known leadership. TK is owned by Acadia Healthcare, a publicly traded company. Apparently, Acadia is using the “revolving door” technique to cycle executives in and out of top positions among its 586 treatment centers. 5 CEOs and 4 medical directors in 5 years. This results in lax standards. Low morale and high turnover among employees. A company adrift with no firm resolve or clear purpose. This naturally leads to dissension, dissatisfied employees and turnover. All the while, the internet is replete with former employees of TK expressing these very attributes. And dissatisfied, disgruntled employees make mistakes … which lead to tragedies.

Point No. 1? Establish the face of your organization. Find a strong, independent CEO.

That CEO cannot be one of the many minions currently employed by Acadia. Your CEO must be independent. Your CEO must have experience in the eating disorder industry. Your CEO must have experience operating a distressed company. Your CEO must be above and beyond reproach. Your CEO must be media savvy. Give that CEO a multi-year contract. Include Acadia stock, for whatever that is worth, if you must as part of the payment package.

You do not have the luxury of having 3 people claim to be your CEO at the same time. You do not have the luxury of issuing three (3) separate press releases every time a newsworthy event occurs. One from Acadia. One from TK not even signed by any officer or employee. Another issued and signed by the medical director and not the CEO. That is the quintessential example of a confused, lost organization. A strong, insightful CEO could weather this storm. And yet, not even 1 of the 3 TK CEOs signed or endorsed even one of those three (3) statements. He/she has not issued any statements to the press.

One can’t help but wonder if they are even aware of the Jacksa Scandal. Especially since in the LinkedIn photo, Ms. Elbe is standing next to Dave Marinier and she writes, “Happy Birthday to our Director of Operations, Dave Marinier! Thank you for all that you do to keep our campus safe and secure.” Besides the six (6) victims and Margret Cho walking out when she was being checked in and then taking her own life, you are doing one hell of a job. And besides that, how did you like the play, Mrs. Lincoln?

Put an end to the revolving door clown show. Find and then embrace a powerful leader.

Be proactive with donations being returned.

Upon information and belief, this past year, TK donated $10,000 to the National Eating Disorder Association (“NEDA”). When the Jacksa Scandal became public knowledge, it was disclosed that NEDA was going to return the $10,000 donation to TK. Allegedly, TK representatives are no longer welcome at NEDA “Fun Walks.”

NEDA’s position is obviously a strong statement of disapproval and ostracism. And so, the question becomes how do you show that you are worthy of being accepted back into the community as an important and vital contributor?

First, you do NOT keep the returned donation.

You take that money representing the donation, and you donate it to an organization like RAINN. RAINN is the Rape, Abuse & Incest National Network. RAINN is the nation’s largest anti-sexual violence organization. It created and operates the National Sexual Assault Hotline. If not RAINN, another worthy organization whose mission includes assisting those who have been preyed upon by sexual predators. And a forward thinking CEO makes this donation public, not just through a press release but arranges media coverage.

And when the allegations made by each of Jacksa’s victims at TK are corroborated, you donate a similar amount for each and every victim. You send a clear, strong signal that never again will this reprehensible conduct be allowed or tolerated at Timberline Knolls… not just through your words but through your actions.

Point N0. 2? Take negative, detrimental criticism directed toward your company, and turn it into positive action that helps others who have been hurt. Be a strong, forward thinking company which doesn’t just say the appropriate words … it acts upon them.

Arrange and Pay for Counseling for the Victims

The victims of Jacksa were so incredibly vulnerable. They are struggling with this insidious, deadly disease. And they were cruelly betrayed. The scars from this betrayal undoubtedly exacerbated the severity of this disease. And it happened under TK’s watch. At this point, Jacksa’s victims do not need your words. At this point, Jacksa’s victims do not need to hear about how you have implemented security measures after the fact.

The Jacksa Scandal demands action, sure and strong.

As such, you communicate with the victims through their representatives or current counselors that you will be financially responsible for their treatment for one year. Counseling. Medication if needed. Psychiatrists. They do not need your empty words. They need strong action.

Undoubtedly, your attorneys will advise against this. They will say that this action is tantamount to an admission of guilt. That it will be used against you in litigation which will inevitably be filed by one, if not more of Jacksa’s victims. And certainly that is a risk. But, no great deed was ever accomplished without risk. This proposal can be communicated in a way to lessen that risk. After all, this gesture is not intended to be an admission of guilt. This is not an empty gesture. This is not a gimmick. It is the right and morally responsible thing to do. It shows strength of purpose and compassion for the victims.

Point No. 3? TK claims that patient safety and quality care are its primary foci. And yet, TK’s patients’ safety has been compromised. And from this horrendous experience arises an opportunity. This is TK’s opportunity to take action, to show it stands behind its noble words. With this, TK can assist in starting the process by which those patients who were harmed, can receive the care they need … without the constraints of financial worries.

Implement State of the Art security measures.

The mental health industry has known since at least 1991, when Kenneth Pope published the definitive research study on “Prior Therapist – Patient Sexual Involvement Among Patients Seen by Psychologists” that sexual interaction between therapist and patient was far more prevalent than believed. Studies indicate that harm occurred in at least 80% of the instances in which the therapists engaged in sex with a patient after termination.

With eating disorder patients being so vulnerable mentally, emotionally and physically, their safety and well-being are of the highest importance. And because of the predatory nature of the criminal minds who exploit this vulnerability, treatment centers must be proactive, intelligent, anticipatory and creative. More often than not, these treatment centers fail in this mission. 

In one of TK’s three statements on the Jacksa Scandal, TK stated in material part: “State-approved protocols and rigorous training processes are implemented not only so that employees of Timberline Knolls are well-versed in the expectations and standards to which they will be held, but also to ensure that only the most optimal employees are selected to work with our residents. Every prospective employee undergoes a comprehensive pre-employment screening and background check. Tragically, this particular former employee managed to manipulate our policies, protocols, and procedures, and we have conducted a thorough investigation into how this happened so that it does not occur again.”

So, a sexual predator found a way to avoid TK’s policies and procedures even after TK adopted “state-approved protocols.” Far too often people believe that once state approved policies, rules or procedures have been adopted or approved, that is the end of the process and your guidelines are sufficient. If you believe that, you are mistaken. State or federal policies or rules are not the end of the process. They are only the beginning. They represent the bare minimum standard to which an entity must comply. And when has the bare minimum been good enough for any great accomplishment?

In one of TK’s statements, TK notes the new changes which have been implemented, Unfortunately, “the horse already left the barn.” Presumably, these changes were made after an internal review. And the question of whether the same people who came up with the prior inadequate policies, rules and procedures which were eluded by one, lone sexual predator came up with the changes and new policies?

TK needs to get in front of this issue. TK needs to consult with law enforcement, the Federal Bureau of Investigation and outside companies which specialize in implementing safety rules and procedures for both employees and patients. A proactive company explores procedures much more thoroughly than simply performing an internet search on a person.

Families come to places like TK when they are in the pit of despair. Fear rules their lives. Imagine being able to tell those families that your policies and procedures were put in place only after consulting with federal and state agencies and are designed to do one thing, and one thing alone, protect the health, safety and welfare of their patients.

Point N0. 4? Your claim of prioritizing patient safety has been compromised and exposed. As such, TK must go above and beyond the bare minimum. It must set a new standard and elevate security procedures and employee vetting to the highest level. We live in the expanding age of technology and the internet. We entrust TK with the lives of our children. To reclaim the initiative they must originate then implement procedures that the rest of the industry will struggle to catch up with.

TK must become autonomous

Acadia Healthcare, a publicly traded company owns Timberline Knolls. Acadia purchased TK in 2012 for $90 million. Acadia is obviously now making the high level decisions for TK. For TK to survive, that must immediately stop.

TK must be allowed to operate as an autonomous, independent eating disorder treatment center. Not as a small profit center for a multi-billion dollar company. Decisions must be based on what is in the best interests of the patients and must not be profit driven alone.

But, there is another reason for TK to be autonomous. In the recent previous post about the Jacksa Scandal, various lawsuits against Acadia were detailed. Then, a more recent lawsuit was discovered. A lawsuit that if successful along the lines of the Wit case would spell the end of Acadia.

In February of 2019, a lawsuit was filed against Acadia and its upper tier officers in federal court in Tennessee (“Davydov case”). The lawsuit is a shareholders derivative complaint. This type of lawsuit is brought on behalf of shareholders against individual officers and directors of a corporation alleging they are not acting in the corporation’s best interests. Like the Wit case, the attorneys in this case specialize in that particular area of law. They are based in San Diego. And they have established a reputation of excellence.

The allegations in the Davydov case are shocking. The shareholder alleges Acadia sought to improve its profit margin by increasing the number of beds for patients while reducing staffing expenditures, its largest expense. He alleges the individual officers and directors withheld information pertaining to critical health and safety measures and thereby operated unsafe facilities. The Davydov case details numerous instances of improper care, of patients committing suicides at a number of Acadia owned facilities.

Sexual assaults against patients in other Acadia facilities are detailed.

The Davydov case specifically alleges:

“An extensive investigation conducted by Aurelius Value based on over 600 state and federal inspection reports as well as court records, media reports, lawsuits, and police records, confirmed the allegations contained in the Seeking Alpha report. In particular, Aurelius Value’s investigation found: (i) numerous patients, including children and teenagers, have died due to alleged negligence or malpractice at Acadia facilities; (ii) recurring reports of sexual abuse and physical assaults on vulnerable patients that have allegedly been perpetrated by Acadia employees or unmonitored patients; (iii) repeated instances of patient neglect or deficient care linked directly to staffing problems at Acadia facilities; and (iv) a pattern of whistleblower allegations made by former employees who say the Company retaliated against them after they reported fraud or misconduct.”

The 84 page complaint details a web of insider trading, patient abuse, patient suicide, misrepresentations, fraud perpetrated by Acadia. And for the reasons set forth above, Acadia has absolute control over TK.

Point No. 5? TK exists in name only. TK has no direction. TK has no leadership. For TK to start to thrive, Acadia must let loose its grip and allow TK to operate autonomously.

The Undiscovered Country

In Shakespeare’s “Hamlet,” the term “Undiscovered Country” is used. In the Bard’s context it refers to the concept of death, the mysteries of the afterlife, our lack of understanding and knowledge about it. And the fear of it.

More recently, in 1991, the movie, “Star Trek VI – The Undiscovered Country” was released. During a toast amongst the characters, the toast, “To the Undiscovered Country” is given. In that context, the Undiscovered Country refers to the future … and the endless positive possibilities which exist. It embraces a future of hope.

Embracing the future or fearing death. Those are the realities and choices now facing Timberline Knolls and Acadia. If Acadia keeps utilizing Timberline Knolls as a testing ground for its executive officers leaving it without a real leader and strong voice, it will surely fail. And our children will continue to suffer.

If however, Timberline Knolls is allowed autonomy and independence, without interference from Acadia, it can reclaim its place as a leader in the eating disorder industry.

The Undiscovered Country awaits.

“Justice is the set and constant purpose which gives every man his due.”

          Marcus Tullius Cicero, Orator, Philosopher

“Long is the way and hard, that out of Hell leads up to Light.”

          John Milton, Paradise Lost

At the recent 2019 International Conference of Eating Disorders hosted by the Academy for Eating Disorders (“AED”), I assisted organizing a 90 minute discussion with one of the lead attorneys from the Wit v. United Healthcare case. Some of the brightest minds in the eating disorder industry attended this discussion. The insightful questions directed toward attorney Brian Hufford demonstrated a clear understanding of the significance of the case and its possible future ramifications and impact on families and patients undergoing treatment.

One of the questions proffered was whether doctors, counselors, therapists and treatment providers can already start to use the ruling and the language within the ruling to best help their patients, and if so, how that can be accomplished.

This article will focus on responding to that question. We will analyze findings within the ruling that treatment professionals can utilize when conducting preauthorization or peer-to-peer reviews or appeals with medical providers used by UBH/Optum. Arguably, the arguments can also be used with other insurance benefit providers but some of the discussions will have to be specially tailored to fit the company involved and the types of treatment at issue.

Undoubtedly, UBH/Optum may attempt to argue the ruling is merely a preliminary ruling subject to appeal. UBH/Optum may also argue that the Court did not specifically enter an injunction preventing it from continuing to rely upon its now disgraced guidelines. They do so at their peril.

These arguments are tantamount to saying, “We understand a Court determined we did not comply with our duty of good faith and fair dealing with our insureds. We understand the Court found our guidelines were woefully inadequate. We understand the Court held that our guidelines did not comply with the applicable standard of care. We understand the Court determined our doctors and expert witnesses were not credible. Nonetheless, we are going to continue to let Rome burn while going scorched earth on our insureds.”

Stand your ground.

Summary of Considerations and Arguments

1. Understand that UBH’s treatment guidelines were found to not comply with generally accepted standards of care. UHB violated its sacred duty of good faith and fair dealing with its insureds, your patients in devising, implementing and enforcing these Guidelines.
2. Focus your requests for preauthorization and peer-to-peer reviews on these generally accepted standards of care and not UBH’s discredited guidelines. UBH’s guidelines do not comply with the generally accepted standards of care. Do not initially focus on the patient.
3. Be familiar with the legal interpretation used by the Court in Wit as to what constitutes the generally accepted standards of care.
4. Insist that the Peer Review Doctor disclose the exact criteria they are relying upon in reviewing your patient’s request for treatment. Although UBH is not legally prohibited at this time from continuing to use its Guidelines, these Guidelines do not comply with the generally accepted standards of care. Therefore, does reliance on discredited Guidelines constitute possible malpractice by the Peer Review Doctors and subject them to disciplinary action?
5. According to the Wit decision, Peer Review Doctors do not have the authority to make clinical decisions which contradict or violate these discredited Guidelines. Therefore, determine the exact basis those Peer Review Doctors have for refusing initial treatment or denying additional treatment.
6. Finally, make your case as to why your patient requires additional treatment under the generally accepted standards of care using the objective criteria set forth in the Wit (condensed below)
7. Be Bold. Be Resolute.

Argument One – Focus on their discredited guidelines

Your initial focus MUST be on UBH’s failed Guidelines and not the patient. Again, YOUR INITIAL FOCUS MUST BE ON THEIR DISCREDITED GUIDELINES AND NOT THE PATIENT!

This may seem counter-intuitive. After all, you may believe it is the patient that is the issue. You may believe it is the patient’s health and treatment at issue. It may be the way you have always conducted peer-to-peer reviews. We now know there is a new reality. Your patients, their insureds are merely corporate commodities and are being treated as such by UBH.

\Mental health parity may define the game. But, the insurance company’s guidelines define the rules of the game.

If you do not know the rules of the game, how can you possibly play the game to the best effect for your patient? If the rules of the game have always been stacked against your patient, and those rules have now been thrown out, what is the insurance company and their peer review doctor going to rely upon? At this point, they only have one safe, credible criteria upon which they can rely. One criteria which complies with the insurance company’s duty of good faith and fair dealing. One criteria which protects their own credibility and insulates them from possible board complaints. And that is, the generally accepted standards of care.

If you choose to continue to first focus on the patient, your patients will continue to lose. You are playing by their rules. Rules which have been discredited and shown to not comply with the generally accepted standards of care.

When attorneys litigate a case, the attorney who successfully “frames the issues” in the case prevails the vast majority of the time. “Framing the issues” simply means successfully telling the judge or jury what the case is “really” about. This causes the opposing party to change their strategy, address and focus on the issues you wish to illuminate. In the Wit case, the plaintiffs’ attorneys successfully prosecuted the case as a breach of the insurance company’s fiduciary duties to the insured. The attorneys did not have to argue that the game itself, mental health parity was violated. Instead, they argued the rules of the game, the guidelines were grossly unfair if not predatory.

Argument One – Frame the Issues! Initially, focus on UHB’S lack of credible guidelines, guidelines which have been discredited and which do not comply with the generally accepted standards of care.

Argument Two – Know the legal interpretation of the generally accepted standards of care

What are the accepted standards of care? Medical providers work with and comply with the accepted standards of care on a daily basis. And yet, it is peculiar that a magistrate judge in San Francisco nonetheless identified what those standards were. The manner in which a judge or arbiter is likely to interpret this issue is crucially important. Once you know these standards, you have additional evidence and arguments to fight for the rights of your patient.

Criteria Relied Upon

The Court in Wit relied upon the following criteria in determining the generally accepted standards of care:

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 found generally accepted standards of care included:

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.

The Generally Accepted Standards of Care

Based upon the evidence, testimony and the criteria set forth above, the Court determined that the following standards are generally accepted in the field of mental health and substance use disorder treatment and placement.

1. It is a generally accepted standard of care that effective treatment requires treatment of the individual’s underlying condition and is not limited to alleviation of the individual’s current symptoms.
2. It is a generally accepted standard of care that effective treatment requires treatment of co-occurring behavioral health disorders and/or medical conditions in a coordinated manner that considers the interactions of the disorders and conditions and their implications for determining the appropriate level of care.
3. It is a generally accepted standard of care that patients should receive treatment for mental health and substance use disorders at the least intensive and restrictive level of care that is safe and effective.
4. It is a generally accepted standard of care that when there is ambiguity as to the appropriate level of care, the practitioner should err on the side of caution by placing the patient in a higher level of care.
5. It is a generally accepted standard of care that effective treatment of mental health and substance use disorders includes services needed to maintain functioning or prevent deterioration.
6. It is a generally accepted standard of care that the appropriate duration of treatment for behavioral health disorders is based on the individual needs of the patient; there is no specific limit on the duration of such treatment.
7. It is a generally accepted standard of care that the unique needs of children and adolescents must be taken into account when making level of care decisions involving their treatment for mental health or substance use disorders.
8. It is a generally accepted standard of care that the determination of the appropriate level of care for patients with mental health and/or substance use disorders should be made on the basis of a multidimensional assessment that takes into account a wide variety of information about the patient.

Argument Two – These objective guidelines and criteria are determinative and must be utilized by both treating doctors and doctors employed as peer review doctors. If the peer review doctor does not recognize, comply with nor utilize these standards, questions can then be raised regarding that doctor’s competence and objectivity.

Argument Three – UBH/Optum’s Guidelines were determined to be unreasonable and do not reflect the generally accepted standards of care.

The Court in Wit specifically held: “Applying the standard of review discussed above, and based on the Findings of Fact related to the challenged Guidelines and UBH’s Guideline development process, the Court finds, by a preponderance of the evidence, that UBH has breached its fiduciary duty by violating its duty of loyalty, its duty of due care, and its duty to comply with plan terms by adopting Guidelines that are unreasonable and do not reflect generally accepted standards of care.” [emphasis added]

The Court also found, “In this case, the denial letters (or in a few cases, the case notes) reflect that each class member’s denial was based on UBH’s determination that the member failed to meet the criteria in UBH’s Guidelines. See Trial Ex. 896 (Class List stipulation); Trial Ex. 894 (denial letter and case note excerpts for Claim Sample).”

Since UBH’s guidelines were found to be defective and do not comply with the generally accepted standards of care, and each denial was based on those faulty Guidelines, it is axiomatic that each denial for treatment for all of the Class Members was improperly denied. If UBH’s peer review doctors continue to rely upon those Guidelines, they in essence will be committing medical malpractice. And once again, UBH will be violating its duty of loyalty, good faith and fair dealing.

And yet, why can’t the peer review doctor simply disregard the Guidelines and recommend compliance with the generally accepted standards of care? … Because UBH’s Guidelines do not allow this.

UBH/Optum’s employees and peer review personnel do not have the authority to contradict or violate the Guidelines.

A peer-to-peer review is typically done as a scheduled telephone call between the Peer Review physician acting on behalf of the insurance provider, and the healthcare professional who requested the review. The Peer Reviewer applies the health plan’s medical coverage guidelines to the clinical information, is supposed to use clinical judgment, and renders a decision. Although the Peer Reviewer is a delegate of the insurance company, and is paid by the insurance company, allegedly the Peer Reviewer receives no financial incentive to deny or to approve a request. And yet, even a cursory investigation reveals that numerous peer review companies exist and market themselves with some even touting its transparent, competitive pricing. 

In the Wit case, the Court noted the following: “A Peer Reviewer’s job is to decide, for each request for coverage, whether the prescribed treatment meets the criteria set forth in the Guidelines. Trial Tr. 725:18-726:11 (Triana); Trial Tr. 1102:17-19 (Martorana); see also Trial Exs. 256-0018, 257-0020, 258-0018,259-0019, 260-0010, 261-0012, 262-0013 (Utilization Management Program Descriptions); Trial Tr. 309:15-18 (“UBH bases coverage determinations on the Level of Care . . . Guidelines, the Coverage Determination Guidelines . . . , and/or the psychological and neurological testing guidelines.”) (Niewenhous quoting Trial Ex. 735-0026). testifying that Peer Reviewers can depart from the Guidelines if their clinical judgment “takes them there”); Trial Tr. 1404:25-1405:2 (Allchin) (testifying that he had issued coverage determinations that were inconsistent with the Guidelines and had not required authorization to do so).”

The Court found this testimony to not be credible when it stated: “Dr. Simpatico’s opinions about the Guidelines were premised on the assumption that practitioners making medical necessity determinations for UBH are authorized to ignore the plain language of the Guidelines when it is inconsistent with generally accepted standards of care. The evidence presented at trial does not support that assumption. While the Guidelines allow for some exercise of clinical judgment, they are the criteria against which UBH Peer Reviewers make clinical coverage determinations, and they are mandatory. Trial Tr. 732:20-733:3 (Triana). Because there is no evidence in the record that the words in the Guidelines can be ignored by the Peer Reviewers when they are in conflict with generally accepted standards of care – or that they are, in fact, used that way – the Court finds that Dr. Simpatico’s testimony on the question of whether the Guidelines are consistent with generally accepted standards of care was not credible.” [emphasis added]

The Peer Review doctors do not have authority to make treatment decisions which contradict the guidelines. These guidelines have been conclusively shown to not comply with the generally accepted standards of care. Therefore, on what possible basis do the Peer Review doctors and/or insurance company have for denying coverage for treatment, which the attending physician states is necessary in accordance with the generally acceptable standards of care?

The Peer Review Doctors are faced with a “Morton’s Fork” dilemma. UBH mandates that clinical coverage determinations must be made in accordance with their Guidelines. But, those Guidelines violate the generally accepted standards of care and violate their duty of good faith and fair dealing with their insureds. Therefore, if the Peer Review Doctor issues a treatment decision in accordance with those Guidelines, he/she is arguably committing medical malpractice, is violating the insured’s/patient’s rights and could be subjecting themselves to disciplinary proceedings by State Boards of Medicine. But, if the Peer Review Doctor issues a decision which violates the UBH Guidelines, they could be in breach of their contract with UBH and have their contract terminated.

Clearly, UBH and the Peer Review Doctors epitomize the Bard’s expression, “Hoisted with his owne petard.”

We will now focus on a few of the Court’s more specific rulings which could assist you in your interaction with Peer Review Doctors.

UBH/Optum’s guidelines violate the standard of care pertaining to placement into and movement among levels of care.

It is a generally accepted standard of care that patients should be placed at the least restrictive level of care that is both safe and effective and that practitioners should err on the side of caution when there is uncertainty by placing patients at the higher level of care. Further, the fact that a lower level of care may be less restrictive does not justify moving the patient to that level of care if it is also likely to be less effective in treating the patient’s overall condition – including the underlying condition and any co-occurring conditions – even if movement to the lower level of care may be safe.

UBH’s Guidelines do not adhere to these principles. The Court noted: “Instead, they actively seek to move patients to the least restrictive level of care at which they can be safely treated, even if a lower level of care may be less effective for that patient.”

“It is a generally accepted standard of care that where there is uncertainty as to the likely effectiveness of different proposed levels of care, practitioners treating patients for mental health and substance use disorders should exercise caution by selecting the higher level of service intensity. See Trial Ex. 653-0007 (LOCUS) (stating that when there is “ambiguity” with respect to the appropriate level of care practitioners should assign the “highest score in which it is more likely than not that [at] least one criterion has been met should generally be assigned” so that “errors [regarding the appropriate level of service] will be made on the side of caution”)”

Finally, the Court held, “Placement in a less restrictive environment is appropriate only if it is likely to be safe and just as effective as treatment at a higher level of care in addressing a patient’s overall condition, including underlying and co-occurring conditions.”

The Court found that UBH violated this accepted standard of care.

UBH/Optum excessively over-emphasized financial considerations and ramifications when it generated its Guidelines.

The Court placed great emphasis on the manner in which UBH/Optum originated, adopted and amended its guidelines. The Court ruling contains numerous references to an improper emphasis on financial consideration and not medical guidelines.

The Court specifically held:

“In any event, the record is replete with evidence that UBH’s Guidelines were viewed as an important tool for meeting utilization management targets, “mitigating” the impact of the 2008 Parity Act, and keeping “benex” down. See, e.g., Trial Ex.768-0009 (2014 presentation describing “[c]ontinued use of concurrent review to ensure appropriate utilization” as the “Mitigation Strateg[y]” for Parity’s “[r]emoval of day and visit limits on IP, Intermediate and OP”); Tr. 307:4-24 (Niewenhous).”

“Perhaps the most telling example of the emphasis UBH placed on financial considerations in its decision making with respect to the Guidelines relates to UBH’s decision not to adopt the ASAM Criteria for making substance use disorder coverage determinations.” “Despite the clear consensus among UBH’s addiction specialists that the ASAM Criteria were preferable to UBH’s own Guidelines from a clinical standpoint, UBH consistently refused to replace its standard Guidelines with ASAM Criteria without first obtaining approval from the Finance Department. 

UBH/Optum’s guidelines emphasized acute symptoms at the expense of chronic underlying conditions and co-current illnesses.

The Court extensively reviewed the Guidelines and other related documents submitted by UBH. The Court found that UBH’s Guidelines were sorely lacking.

“The Court finds, by a preponderance of the evidence, that in every version of the Guidelines in the class period, and at every level of care that is at issue in this case, there is an excessive emphasis on addressing acute symptoms and stabilizing crises while ignoring the effective treatment of members’ underlying conditions. While the particular form this focus on acuity takes varies somewhat between the versions, in each version of the Guidelines at issue in this case the defect is pervasive and results in a significantly narrower scope of coverage than is consistent with generally accepted standards of care.”

“The primary focus of the Guideline development process … was the implementation of a “utilization management” model that keeps benefit expenses down by placing a heavy emphasis on crisis stabilization and an insufficient emphasis on the effective treatment of co-occurring and chronic conditions.”

Finally, the Court determined, “For the reasons discussed above, those Guidelines embody a much narrower focus aimed primarily at alleviating acute symptoms and managing crises while ignoring the question of whether treatment is likely to be effective in addressing the member’s underlying condition or, in UBH’s words, supporting the member’s “broader recovery, resiliency and wellbeing.”

UBH/Optum’s guidelines violate the standard of care with respect to treatment of children and adolescents.

Of the many faults and misdeeds perpetrated by UBH, its knowing violation of the standard of care for treatment of children and adolescents is perhaps the most reprehensible. The Court in its ruling stated:

“One of the most troubling aspects of UBH’s Guidelines is their failure to address in any meaningful way the different standards that apply to children and adolescents with respect to the treatment of mental health and substance use disorders. Throughout the Class Period, UBH failed to adopt separate level-of-care criteria tailored to the unique needs of children and adolescents. Nor do the Guidelines instruct decision-makers to apply the criteria contained in the Guidelines differently when the member is a child or adolescent.”

The Court attacked the credibility of the expert witness retained by UBH wherein it stated,” … his testimony that UBH’s Guidelines are consistent with generally accepted standards of care with respect to the treatment of children and adolescents, which he based primarily on the “clinical best practices” in the Guidelines, was not persuasive in light of his admission that the unique factors that relate to the placement of children and adolescents are absent from the coverage criteria in the Guidelines. See Trial Tr. 1377:13-20 (Allchin) (testifying that the clinical best practices section contains “sufficient detail to tease out aspects that are developmentally related” to make up for the lack of coverage criteria tailored to young people).”

Ad Infinitum

Ad infinitum is a Latin phrase roughly translating to “again and again, in the same way, forever.” The Wit decision is a 106 page “Perfect Storm” revealing the blue print dissecting the manner in which an insurance company can ignore the mandates of the Mental Health Parity Act of 2008 and the Affordable Care Act. 

The message to our medical providers, our therapists, our counselors, our treatment providers has never been clearer. The game has changed. The rules have been thrown out. It is your turn now. It is your time now. You know how to attack the insurance companies and the Peer Review doctors. The method of obtaining life saving treatment for your patients, our loved ones is set forth above. And the only issue is… what are you going to do about it?

This article could go on for thousands of additional words detailing the manner in which the Court dissected UBH’s bad faith conduct and emphasis on increasing its profit margin at the expense of the lives of your patients, their insureds, our loved ones.

United Healthcare reported net profit in 2017 of $163.3 billion.

Optum reported a profit of $91.2 billion for 2017.

Approximately 8500 people in the United States died as a direct result of eating disorders in 2017.

For each child … for each loved one … for each beloved soul taken … UBH earned a net profit of $29,882,352.00 for each life taken by this disease. Approximately $29,000,000 per hour. Every hour. Every day. Every week. Every month.

29,882,352. The same approximate number of people in the United States who will suffer from this disease.

Doctors, counselors, therapists, medical professionals … It is YOUR time. It is our time.

One life = $29,882,352.00.

One Life. One Precious Life.

“It is almost always the cover up, rather than the event that causes trouble.”

Howard Baker, Former White House Chief of Staff

And it is the mental health and the very life of our most vulnerable that matters the most. But to those with a financial interest alone, it matters the least. And if we do not surely speak out and take action against those would seek to profit from that reality we bear the shame for that.

On March 5, 2019, a federal court in California rendered its industry-changing decision in the case of Wit, et al v. United Healthcare, et al. Patrick Kennedy, former representative from Rhode Island and mental health advocate stated, “This ruling is the Brown v. Board of Education for the mental health movement.”

Brown v. Board of Education was a unanimous US Supreme Court decision rendered in 1954 holding that racial segregation of children in public schools was unconstitutional.

The future will determine whether the Wit decision has the society changing impact Brown did. We do know that the Wit decision overshadowed any other immediate news stories regarding mental health.

This includes a very disturbing story first published on March 6, 2019 and which then received wide distribution the next day when a Chicago Tribune writer authored a column on the events at the heart of that story.

I had previously written about the allegations of sexual assault perpetrated by a Michael Jacksa at Timberline Knolls which occurred during the spring and summer of 2018. The article appears here:

TK – Jacksa Incident

The article details the ugly reality that predatory sexual interaction between therapists and patients is much more prevalent than what we are led to believe. And if the Jacksa matter ended with the facts as known, him pleading guilty then being sentenced to a jail term, we could attribute that tragedy as an isolated incident. And we could probably assume that Timberline Knolls could not possibly have known beforehand or taken steps to lessen the likelihood of it happening. After all, at the time, Timberline Knolls stated that they have a “zero tolerance policy for any activity that endangers the physical or emotional wellbeing of a resident.” Or … do they?

Law enforcement conducted its investigation. And 2 + 2 did not equal 4. And the coverup began to unwind. 

Questions and Concerns

Treatment centers get their reputation, operational mandates and marching orders from their Chief Executive Officer who ostensibly does the bidding of the board of directors. For example, like him, dislike him, respect him or not, there is no doubt that Dr. Ken Weiner is the face of Eating Recovery Center. So too, Dirk Miller is the face of the Emily Program. And whereas in the past, I have questioned certain practices of these organizations, there is no dispute that these gentlemen are the strong, guiding rudders for their organizations. And that is certainly worthy of respect.

With Timberline Knolls, there is no face of their program. In 2018, a former employee wrote the following: “In five years, they [Timberline Knolls] have had 4 medical directors and 5 CEOs.” On its face, this statement seemed a bit outlandish. But, research disclosed that Timberline Knolls had the following Chief Executive Officers:

Dr. Kim Dennis – 2013 (who left and started Suncloud Health)

William Parsons, Jr. – 2016

Colleen Kula Hopkins – 2017

Sari Abromovich – 2018

Rob Turner, PhD (who although appearing as CEO on the Timberline Knolls website, on his Linkedin profile, does not list his affiliation with Timberline Knolls but does list himself as a Division President for Acadia)

There may be others whom I missed. On Mr. Turner’s Timberline Knolls page, he describes the job duties for which a CEO is responsible: “As CEO, Dr. Turner is responsible for the operational and functional well-being of Timberline Knolls. He has primary responsibility for the development, implementation, and achievement of the strategic business plan in conjunction with routine operations to include: quality of care, staff development, maintenance of licensure and accreditations, financial performance, and continuous performance improvement.”

Any respected CEO has their own unique vision for the company entrusted to them. Implementation of that vision may take time. It could involve changing the corporate environment and attitude. Trust must be established with other officers. So, how is any company supposed to establish consistency, vision, ideals and a reputation of excellence when your leader is changing every year? A revolving door of CEOs conveys just the opposite message … that you are a company adrift with no resolve or purpose. This naturally leads to dissension, dissatisfied employees and turnover. All the while, the internet is replete with former employees of Timberline Knolls expressing these very attributes. And dissatisfied, disgruntled employees make mistakes … which could lead to tragedies.

The Chicago Tribune article contains many alarming facts and information apparently gleaned from the police investigation and contained within the reports generated. One such statement is: “In early July, when Timberline staff discovered journal entries by a patient that described her sexual encounters with Jacksa, they confronted the woman in his presence, police reports show.” [emphasis added]

First, the employee who authorized the “internal investigation” to include the predator being present with the victim when she was asked to relive the horrific experiences should be keel-hauled.  The accepted standard is to not permit the alleged predator to be present when the victim is giving her account.

The article states that the date of “early July” is allegedly the first date upon which Timberline Knolls knew of the abuse. Or is it?

On the website, glassdoor.com, employees can make anonymous reviews of their workplace. Now, I tend to look upon most reviews with a skeptical eye. Many people do not like their workplace, or immediate supervisor and websites like glassdoor.com give them an outlet for their frustration. But, one review of a former Timberline Knolls employee was poignant. This employee stated: “The management, cuts corners in health care, does not support staff when horrific things happen.” [emphasis added]

The date of this post? June 18, 2018. This date is prior to the date referenced in the article and leads one to speculate that Timberline Knolls knew that it had a horrific problem even earlier. Because of its significance, the webpage containing this allegation is attached at the end of this article.

Of great concern, one article published in the Legal Herald dated August 24, 2018 states, “Investigators believe that Jacksa assaulted a 29 year old female patient during two counseling sessions between May and late June 2018.”

If the date of the former employee’s post is accurate, that is June 18, 2018, and Jacksa was permitted to prey upon patients until late June 2018, we are drawn to the inescapable conclusion that Timberline Knolls KNEW Jacksa was a predator … and continued to allow him free access to his victims.

Further, if the date of this post is accurate, then we can only draw one of three logical conclusions. (1). Timberline Knolls knew of Jacksa’s reprehensible conduct before early July and either took no action or covered up this information; (2). The employee is making reference to another horrific incident which has not been brought to light, or (3). The employee is lying and it is just a random and bizarre coincidence that the predatory nature of Jacksa was exposed 2 – 3 weeks after that posting. Of the three, I submit that possibility 3 is the least likely. Regardless of whether conclusion 1 or conclusion 2 is the truth, both cast grave doubt on the credibility of Timberline Knolls. And questions must be asked whether Timberline Knolls is complicit in the damage done to the victims of these heinous crimes.

Another disconcerting statement in the Chicago Tribune article was as follows: “The administrator explained to police that administrators of individual Acadia facilities “have to contact corporate with these matters and corporate tells them to investigate and investigate more before they are allowed to call police,” according to a Lemont police report released to the Tribune under open records laws.”

Spokesman for Timberline Knolls, Gary Mack [who, as an aside, should never be allowed in the same zip code as a microphone ever again] then refuted that statement and said the administrator of the facility is expected to contact law enforcement on any criminal matters. One is left to wonder which policy is applicable, the statement given to investigators during an on-going criminal investigation or a statement made by a spokesman with the time and opportunity to “spin” a story? If one believes the first statement (when obstruction of justice and hampering an on-going investigation charges could result in criminal liability), then the parent company, Acadia finds itself embroiled in each investigation. And for Timberline Knolls … that is a tremendous liability.

Recent Acadia Lawsuits

Acadia Healthcare owned entities have been involved in these recent lawsuits and disputes:

West Memphis, AR: Ascent Treatment & Outpatient Clinic. In June 2017, four employees were charged with manslaughter after a 5-year-old boy died. The following month, the child’s family filed a wrongful death suit against Ascent (owned by Acadia), the employees, and its corporate entities for $135 million. KARK reported that: Ascent Children’s Health Services CEO Dan Sullivan admits some employees didn’t follow correct protocol and were fired.

Philadelphia, PA, Belmont Hospital. In a one-week period in 2017, two suicides occurred at the facility. A lawsuit charges that the facility lacks sufficient and appropriately trained staff. The State cited the facility for lack of staff and lack of facilities that would prevent suicides, among other things. When state inspectors visited in November of 2017, they declared a state of imminent danger.

Fort Myers, FL, Park Royal Hospital. In 2017, the location’s top physician since 2012 resigned, citing the decline of the facility under Acadia. He said: “Ultimately, it became a matter of principle over passion, and the former was non-negotiable for me.”

The hospital risk physician told regulators that she had:

… walked into a hot mess of an organization.

According to a report from the Centers for Medicare and Medicaid Services. Federal inspectors back them up, saying in a report that the facility is:

… too short-staffed to properly supervise patients, ignoring their complaints, and had poor quality control procedures in place.

Sexual assault against patients is alleged to have occurred as well.

New Baltimore, MI, Harbor Oaks Hospital. The facility has been accused of rampant patient and staff abuse, and allegedly inflates staff to appropriate levels only when a visit from the Joint Commission is expected. A month-long news investigation by WXYZ of Detroit, MI, found:

… a pattern of assaults on staff dating back years, repeated allegations of physical and sexual abuse involving patients.

Ada, OK, Rolling Hills Hospital. An alleged cover-up attempt at the hospital by not reporting the deaths of patients to the facility’s governing body. A lawsuit from one of the victims, Shannon Archer, highlights the conditions of neglect. This patient was admitted for alcoholism, but suffered permanent brain damage when, allegedly, a patient violently grabbed her from behind, grasping her hair and viciously slammed her head into the concrete floor. The other lawsuit, which involves an unnamed minor, alleges denial of critical emergency medical care, as well as multiple sexual assaults against children.

According to the Archer complaint, there was no supervision or security present at the time of the incident due to the understaffed personnel. I was made aware that the Oklahoma Department of Human Services apparently ordered the removal of all ODHS children from the facility.

Investigations by health inspectors from the Centers for Medicare and Medicaid Services revealed over 50 pages of violations ranging from unqualified staff to infection control deficiencies, patient rights, and maintenance issues. What we found most alarming were the instances of restraint and seclusion violations where adolescents were left unmonitored in seclusion rooms.

Henderson, NV, Seven Hills Hospital. Multiple allegations of sexual assault of a patient exist, including McCardle v Seven Hills/Acadia, in which a patient exposes himself to a young woman.

[Thank you to Penn Little for the above information and his on-going research into Acadia Healthcare]

An article published on February 13, 2019 by CCHR International, a group touting itself as a mental health watchdog group details numerous instances of abuse, substandard facilities, poor oversight and understaffed facilities. This article can be found here:

CCHR Article

In addition, Acadia’s operations in the UK is being investigated by Parliament as allegations of abuse, of treating their patients like “cash cows,” as allegations of physical and psychological abuse run rampant.

Acadia’s and TK’s Statements

On Friday, March 8, 2019, Timberline Knolls released two statements regarding the Chicago Tribune article. I will not painstakingly dissect the statements but have attached them at the end of this article. It would appear as if one statement is addressed to referring providers and interested third parties in emails. The other statement was released on Timberline Knolls website for public dissemination. However, there are a few obvious questions regarding the statements.

The most obvious question is why the necessity of two separate statements? 

Regardless, in its statement, Timberline Knolls makes reference to many upgrades and improvements in its security procedures. For that increased security, I am sure the patients and their families are grateful. And yet, one cannot help but wonder why those security measures were not previously implemented. As part of its corporate responsibilities, if Acadia and/or its general liability insurer performed annual inspections of its properties to determine if they were as safe as possible, shouldn’t those security measures, at least in part have already been implemented? After all, the health, safety and welfare of its patients should be, must be of paramount importance.

Another obvious question and admittedly, this may be minor, is wondering the reasons why one statement was released under Acadia Healthcare’s name and one statement was released under the name of Timberline Knolls. At the bottom of the statement emailed to third parties, it notes that it was released under Acadia’s name and its corporate address.

Acadia and Timberline Knolls are very much still in the briar patch. The issue of the date of the former employee’s posting about the “horrific event” must be exhaustively investigated. If the date of June 18, 2018 is accurate, and the “horrific event” refers to the abuse of its patients, and a patient was abused in late June 2018, then Timberline Knolls management knew of the “horrific event” prior to the date it represented to investigating law enforcement authorities, Timberline Knolls has a major liability and credibility issue and wrongful concealment of criminal activity could be involved.

Timberline Knolls also needs to stop playing musical chairs with its top executive officers. Having rotating chief executive officers is a recipe for confusion amongst employees and dissension amongst corporate officers. Vision is lacking and a treatment facility is left adrift.

The reality of one final disturbing conclusion absolutely must be faced. That is, Timberline Knolls knew it was employing a sexual predator. It knowingly exposed our loved ones to this reprobate. Our loved ones were harmed by this predator. When confronted with these facts, Timberline Knolls then concocted a scheme in an attempt to cover up its own wrongdoing. And now, this cover up has been discovered. The criminal activity does not just involve one warped person. It involves an organization.

And now, it is up to an industry to determine what to do about that organization.

Employee Review

TK Statement

Acadia Statement

“The success or failure of any government in the final analysis must be measured by the well-being of its citizens. Nothing can be more important to a state than its public health; the state’s paramount concern should be the health of its people.”

Franklin Delano Roosevelt

Legend has it that on November 18, 1307 the Swiss patriot, William Tell shot an apple off of his son’s head. One can’t help but wonder prior to this event, how many times Mr. Tell missed the target as he practiced his bowmanship. And yet it was those many misses which honed his skills, sharpened his eye and allowed him to excel when needed.

The healthcare system in the United States is broken. The health, safety and welfare of our citizens were entrusted to private enterprise … and private enterprise abused this sacred privilege.

Our feckless leaders in Washington have taken Medicare and bastardized it from a healthcare issue into a political issue. It has become a political beach ball being bounced back and forth between the “Medicare-For-All” advocates and the “System Will Work Just Fine Eventually” faction. Our broken political system and shortsighted politicians are using the lives of our beloved children to further their own ambitions. Meanwhile, the insurance industry continues to operate its money-making monopoly implementing self-serving guidelines designed to increase its profits at the cost of the health needs of their insureds, our children.

All the while, organizations in the eating disorder industry are paying large amounts of money to lobbyists in Washington and state capitals to lobby on bills concerning Medicare and Medicaid, as well as The 21^st Century Cures Act and Affordable Care Act. In fact, the National Eating Disorder Association (“NEDA”), reported on its 2017 Form 990 that it paid lobbyists $178,545.00. This is $7,000 more than it paid its CEO, Claire Mysko.

In 2018, the Eating Disorder Coalition, Residential Eating Disorders Consortium and NEDA paid their combined lobbyist, Center Road Solutions $340,000.00. Up to January 1, 2018, the Eating Disorder Coalition paid a lobbyist $310,000.00.

Lobbying is big business. It requires large financial contributions, influence and power. Those lobbyists and the groups they represent must stay abreast of the latest trends in the political arena lest they meander down rabbit trails on useless, Quixotic like quests. Nowhere is this truer than with the issue of Medicare and mental health parity.

And then one day, clarity comes from unexpected sources.

The Wit Case Reveals the Target

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 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. The following findings were particularly damning:

“Financial considerations have played a significant role in the development of the Guidelines throughout the relevant class periods.”

“ …Mr. Niewenhous’s testimony … that the Guidelines were developed solely to reflect generally accepted standards of care was not credible. As discussed further below, internal UBH communications involving Mr. Niewenhous make it crystal clear that the primary focus of the Guideline development process, in which Mr. Niewenhous played a critical role, was the implementation of a “utilization management” model that keeps benefit expenses [Ben-ex] down by placing a heavy emphasis on crisis stabilization and an insufficient emphasis on the effective treatment of co-occurring and chronic conditions.”

“The Court finds, by a preponderance of the evidence, that in every version of the Guidelines in the class period, and at every level of care that is at issue in this case, there is an excessive emphasis on addressing acute symptoms and stabilizing crises while ignoring the effective treatment of members’ underlying conditions.”

“The criteria in the Guidelines that actually govern coverage determinations with respect to the treatment of co-occurring conditions, however, are not consistent with generally accepted standards of care.” 

“The Court finds that the financial incentives discussed above have, in fact, infected the Guideline development process.”

“ … the record is replete with evidence that UBH’s Guidelines were viewed as an important tool for meeting utilization management targets, “mitigating” the impact of the 2008 Parity Act, and keeping “benex” down.” 

“Perhaps the most telling example of the emphasis UBH placed on financial considerations in its decision making with respect to the Guidelines relates to UBH’s decision not to adopt the ASAM Criteria for making substance use disorder coverage determinations.”

The decision in Wit v. United Healthcare is a mandate for accountability. The Wit decision is a mandate for the implementation of objective guidelines. For guidelines based on generally accepted medical standards instead of unjustly enrichening insurance providers.

Each of the Court’s findings is a mighty hammer blow, tantamount to an indictment for first degree murder as United Healthcare placed the lives of its insureds at risk for the sake of unethical profiteering. And the most sacred trust bestowed upon it, that is the public health and welfare of the citizenry was abused and draconian ramifications must surely follow.

Turn the Page and Address the Issue

The Eating Disorder Coalition, in essence the legislative arm of the eating disorder industry rightly applauded the Wit decision. In a public service announcement, it stated in part: “Although Judge Spero’s decision is a step forward in holding insurers accountable for parity non-compliance, this case places a greater spotlight on the need for continued equity in treatment for patients and their families affected by eating disorders and other mental illnesses. We respect Judge Spero’s decision and remain hopeful this ruling can serve as a turning point in mental health parity compliance,” said EDC Board President, Chase Bannister, MDIV, MSW, LCSW, CEDS. “We will continue to advocate for equity in mental health treatment as a fundamental right.”

The case was not about parity.

The case was not about parity non-compliance.

The case was about one of the most historically egregious abuses of public trust bestowed upon a private entity ever perpetrated in the United States. The “spotlight” was the public disclosure of long guarded secrets held dear by insurance companies. It was about abuse of insureds. And if the ED Coalition and others continue to only trumpet the horn of “mental health parity,” and the “Bipartisan Health Care Stabilization Act of 2018” and trying to convince Tricare to cover treatment rendered at “freestanding eating disorder centers” a tremendous opportunity before us will be squandered.

Despite the well intentioned Mental Health Parity and Addiction Equity Act of 2008, parity does not and will not exist so long as the playing field remains uneven. We naively hoped that the Parity Act, the Affordable Care Act, the 21^st Century Cures Act would force insurance providers to not only pay for treatment for mental health but would treat claims fairly and in a transparent manner. How foolish we were. How naïve we were. And continue to be. And this was exposed in the Wit decision.

The reality of our woeful situation is that as long as insurance providers have the unilateral ability to determine the guidelines upon which life and death decisions are made, it is irrelevant which “mental health parity” bills we continue to lobby. It is irrelevant which bills mandating additional education for doctors and medical providers are pursued. It is irrelevant how much money we pour into lobbying Tricare. It is irrelevant that as lobbyists are handsomely paid to whisper sweet nothings in politicians’ ears, our children will continue to die. We are missing the mark.

Hit the Target

The Wit decision was a mandate. Collaboration amongst mental health advocates, organizations, lobbyists and financial backers must be sought. Collaboration must be achieved. There must be one, unified goal. One common purpose. One mighty voice consisting of those who have suffered, those who have been abused, the people entrusted to be their champions … and those who have been taken.

The time is right. The time is now. Congress must implement and then oversee universal guidelines which incorporate the generally recognized, accepted standards of medical care to which insurance providers who make life and death decisions for our children must be required to comply. Ordinarily, private citizens have the right to incorporate whatever negotiated terms they wish into their private contracts. But when the public health, welfare and safety of our citizens is involved; when private entities disregard, abuse and violate the sacred, public trust to protect the health, safety and welfare of the citizenry, then surely the privilege of entering into, and dictating the terms in those private contracts lies forfeit.

That is the target. That is the apple on the head of William Tell’s son. Until the privilege to make and enforce those guidelines are taken from the exclusive province of the insurance companies and are established and enforced through objective third parties, no amount of so-called parity will ever exist let alone be effective.

And we will continue to miss the target.

It is believed by many that the Great Chicago Fire of 1871, which caused millions of dollars in property damage and believed to have claimed the lives of 300 people started when a cow owned by a Mrs. O’Leary kicked over a lantern. This started the blaze that would prove so catastrophic. This fire lead to changes and improvements in the manner in which fire suppression in urban areas were to be conducted.

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 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. So too, the ramifications from this decision could be tantamount to Mrs. O’Leary’s cow.

On May 21, 2014, David Wit, along with 10 other people filed a class action lawsuit against United Healthcare (“United”). In most cases similar to the Wit case, the plaintiff employs a local attorney in that jurisdiction. The defendant ordinarily also enlists attorneys local to the jurisdiction in which the case is filed for cost reduction and because it does not regard the case as having much significance. The Wit case from the start, was different. The plaintiffs employed a law firm with offices in Washington, D.C., New York City and other cities. United responded in kind. It utilized its “A-List” counsel from a law firm with offices in Washington, D.C., Los Angeles and San Francisco. Attorneys from some of the most powerful law firms were engaged to fight this battle. And from the start, one could tell that this case would be different.

Each of the plaintiffs alleged that their request for coverage of treatment to address mental health issues had been wrongfully denied by United. If this was the main issue in the lawsuit, then both parties may have merely employed local counsel and a negotiated resolution would have been more likely. But, the plaintiffs not only attacked United for the manner in which it processed claims under its guidelines, policies and procedures, but the very manner in which it formulated those guidelines. Battle lines were drawn and the long, drawn out process of discovery and pretrial maneuvering started. United filed its usual Motion to Dismiss it files in every case. It also attempted to have the venue of the case changed.

The Court’s docket showing the types of motions and responses filed is a blueprint for the manner in which skilled attorneys prosecute and defend complex cases. There could be no allegation of incompetent attorneys involved in this case. It would stand or fall on its own merits and the strategies devised by each side.

In September 2016, the Court heard oral arguments on class certification. The first cracks in the defense of the Wit case began to show on September 19, 2016, when the Court granted the Motion for Class Certification. In past similar cases, courts generally denied class certification because they held that individual issues predominated over class issues. This in essence means the courts would have been required to conduct individual reviews of each claim to determine medical necessity or whether the individual plaintiff’s claims met the criteria set forth by the insurance providers under its own guidelines.

The Wit case was different. The plaintiffs in Wit alleged that United’s guidelines themselves did not adhere to generally accepted medical standards and/or state law. Therefore, the Court could review the guidelines, review what the generally accepted medical standards were and then determine, on a class basis, whether United’s guidelines fell short. And if one person was damaged as a result, all people in the class were damaged.

In a meticulous 55 page decision, Judge Spero granted class certification. The Court went through each issue raised by both the Wit attorneys and United attorneys, thoughtfully addressed the issues and rendered its decision. And yet, the battle was far from over. The plaintiffs still needed to prove that United’s conduct was wrongful. But, if that wrongful conduct could be proven, it would be applied on a class-wide basis. A jury trial was set for October 2017 in San Francisco.

Settlement conferences were conducted unsuccessfully. United filed a Motion for Summary Judgment seeking to have the case dismissed on legal grounds stating that as a matter of law, it was entitled to judgment. While this motion was pending, both parties decided to waive a jury and have the judge decide all issues in the case. For the defense, this decision was curious since on the one hand, insurance companies know that they are rarely sympathetic parties to a jury and a judge is much more likely to take emotion out of the equation. But, this judge had already denied its motion to dismiss and granted the motion for class certification. United also knew that in all likelihood, the judge would not grant its summary judgment especially if that very judge was going to be the final arbiter.

With regard to the summary judgment motion, the Court granted the motion to the limited extent that it dismissed the plaintiffs’ claims for “disgorgement of profits” by United. Otherwise, all other aspects of plaintiffs’ claims were going to be determined at trial.

Finally, the trial began on October 16, 2017. The total trial time would be approximately 10 days. Post trial briefs were filed and finally, on March 5, 2019, Judge Spero issued his decision. It was set forth in a 106 page Findings of Fact and Conclusions of Law in which he found for the plaintiffs.

Language from the Court’s Decision

The decision eviscerated United and its policies and procedures. Some of the more poignant language from the Court’s ruling includes the following:

“While some of Dr. Triana’s testimony was credible, his testimony that UBH does not consider benefit expense (sometimes referred to as “benex” or “Ben Ex”) when it develops the Guidelines was not credible in light of evidence and testimony introduced at trial, discussed below, showing that financial considerations have played a significant role in the development of the Guidelines throughout the relevant class periods.”

“Although Dr. Martorana’s testimony was credible on some issues, his testimony about the meaning of the Guidelines was not always credible because in several instances he ignored the plain meaning of the words used in the Guidelines. See, e.g., Trial Tr. 974:23-976:13 (Martorana testimony that the words “safely managed” in the Guidelines mean the same thing as “effectively treated”); Trial Tr. 1054:12-17 (Martorana testimony that “Why Now” factors referenced in the Guidelines call for an assessment of the “whole person” or the patient’s entire multi-dimensional history). Further, Dr. Martorana’s testimony that clinicians were trained to apply the Guidelines in a manner that was inconsistent with their plain meaning was not supported by other evidence introduced at trial. See, e.g., Trial Tr. 978:11-12 (Martorana).”

“Mr. Gerard Niewenhous was trained as a social worker and has been employed by UBH since 2003. Trial Tr. 1732:7-10 (Triana); Trial Tr. 297:4-5 (Niewenhous). He was responsible for maintaining the Level of Care Guidelines from 2003 to the middle of 2016 and for drafting the Coverage Determination Guidelines from 2010 to the middle of 2015. Trial Tr. 297:4-9, 297:12-15 (Niewenhous). He offered extensive testimony addressing the process UBH used to draft and update the Guidelines, factors that were considered in creating them, and the meaning of the words used in the Guidelines. While Mr. Niewenhous’s testimony was credible on some issues, his testimony that the Guidelines were developed solely to reflect generally accepted standards of care was not credible. As discussed further below, internal UBH communications involving Mr. Niewenhous make it crystal clear that the primary focus of the Guideline development process, in which Mr. Niewenhous played a critical role, was the implementation of a “utilization management” model that keeps benefit expenses down by placing a heavy emphasis on crisis stabilization and an insufficient emphasis on the effective treatment of co-occurring and chronic conditions.”

“Dr. Allchin’s testimony was only partially credible. As discussed further below, his testimony that UBH’s Guidelines are consistent with generally accepted standards of care with respect to the treatment of children and adolescents, which he based primarily on the “clinical best practices” in the Guidelines, was not persuasive in light of his admission that the unique factors that relate to the placement of children and adolescents are absent from the coverage criteria in the Guidelines. See Trial Tr. 1377:13-20 (Allchin) (testifying that the clinical best practices section contains “sufficient detail to tease out aspects that are developmentally related” to make up for the lack of coverage criteria tailored to young people).”

“In particular, the Court finds that Dr. Alam’s testimony on the subject of whether the Guidelines cover certain lower levels of residential treatment set forth in the ASAM Criteria, and his testimony about Mr. Shulman’s conclusions on this subject, was evasive and at times untruthful. His testimony at trial also revealed that he had misrepresented material facts in his expert report when he stated that UBH contracts with “few, if any” providers of lower-intensity residential treatment, namely, at the 3.3 and 3.5 levels under ASAM; at trial, in contrast, he conceded that UBH does contract with such providers. Trial Tr. 1575:10-21 (Alam); 1642:21- 1644:10 (Alam). Dr. Alam also repeatedly offered interpretations of the Guidelines that were inconsistent with their plain meaning and dismissed changes to the Guidelines proposed by Mr. Shulman as “just changing words.” Trial Tr. 1651:3-8. The Court places no weight on the testimony offered by Dr. Alam that UBH Guidelines are consistent with generally accepted standards of care.”

“Research has demonstrated that patients with mental health and substance use disorders who receive treatment at a lower level of care than is clinically appropriate face worse outcomes than those who are treated at the appropriate level of care. See Trial Tr. 74:14-75:13 (Fishman) (describing research findings regarding adverse consequences of mismatching to a lower level of care in the area of substance use disorder treatment); Trial Ex. 673-004 (Alam/Martorana Article) (noting that improper placement at less intensive level of care for substance use disorder may result in relapse). On the other hand, there is no research that establishes that placement at a higher level of care than is appropriate results in an increase in adverse outcomes. Trial Ex. 673-004 (Alam/Martorana Article) (stating that “[t]here is no research evidence to the existence of a consequence to choosing a more intensive level of care than necessary”); Trial Tr. 1674:9-11 (Alam) (testifying that “there’s no research saying if you choose a higher level of care, whether it’s bad for you”). Consequently, it is a generally accepted standard of care that where there is uncertainty as to the likely effectiveness of different proposed levels of care, practitioners treating patients for mental health and substance use disorders should exercise caution by selecting the higher level of service intensity. See Trial Ex. 653-0007 (LOCUS) (stating that when there is “ambiguity” with respect to the appropriate level of care practitioners should assign the “highest score in which it is more likely than not that [at] least one criterion has been met should generally be assigned” so that “errors [regarding the appropriate level of service] will be made on the side of caution”)”

“Having reviewed all of the versions of the Guidelines that Plaintiffs challenge in this case and considered the testimony of the witnesses addressing the meaning of the Guidelines, the Court finds, by a preponderance of the evidence, that in every version of the Guidelines in the class period, and at every level of care that is at issue in this case, there is an excessive emphasis on addressing acute symptoms11 and stabilizing crises while ignoring the effective treatment of members’ underlying conditions. While the particular form this focus on acuity takes varies somewhat between the versions, in each version of the Guidelines at issue in this case the defect is pervasive and results in a significantly narrower scope of coverage than is consistent with generally accepted standards of care.”

“The overemphasis on treatment of acute symptoms is found not only in the admission criteria of the challenged Guidelines but also in the continued service and discharge criteria that apply to all levels of care. Under these Guidelines, coverage of services at a given level of care may be terminated if the member either does not meet the continued service criteria or does meet the discharge criteria.”

“Nor does a denial of coverage at one level of care automatically lead to authorization of coverage at a lower level of care under the Guidelines. Rather, with respect to all challenged versions of the Guidelines, the member must qualify again under the admissions criteria for the lower level of care. See Trial Tr. 1104:14-1104:16, 1424:14-1424:19 (Martorana). Where coverage at a particular level of care has been denied or terminated on the ground that the member’s acute symptoms have been alleviated, services even at a lower level of care may not be covered because of the focus on acute symptoms in the admissions criteria for all levels of care.”

“The criteria in the Guidelines that actually govern coverage determinations with respect to the treatment of co-occurring conditions, however, are not consistent with generally accepted standards of care. Instead, in all relevant years the Guidelines instruct that determination of the appropriate level of care for the purposes of making coverage decisions should be based only on whether treatment of the current condition is likely to be effective at that level of care whereas treatment of co-occurring conditions need only be sufficient to “safely manage” them or to ensure that their treatment does not undermine treatment of the current condition. Conversely, the Guidelines omit any evaluation of whether a member’s co-occurring conditions can be effectively treated in the requested level of care, or whether those conditions complicate or aggravate the member’s situation such that an effective treatment plan requires a more intensive level of care than might otherwise be appropriate.”

“As discussed above, it is a generally accepted standard of care that patients should be placed at the least restrictive level of care that is both safe and effective and that practitioners should err on the side of caution when there is uncertainty by placing patients at the higher level of care. Further, the fact that a lower level of care may be less restrictive does not justify moving the patient to that level of care if it is also likely to be less effective in treating the patient’s overall condition – including the underlying condition and any co-occurring conditions – even if movement to the lower level of care may be safe. UBH’s Guidelines do not adhere to these principles. Instead, they actively seek to move patients to the least restrictive level of care at which they can be safely treated, even if a lower level of care may be less effective for that patient.”

“The Court finds that the financial incentives discussed above have, in fact, infected the Guideline development process. In particular, instead of insulating its Guideline developers from these financial pressures, UBH has placed representatives of its Finance and Affordability Departments in key roles in the Guidelines development process throughout the class period.”

“In any event, the record is replete with evidence that UBH’s Guidelines were viewed as an important tool for meeting utilization management targets, “mitigating” the impact of the 2008 Parity Act, and keeping “benex” down. See, e.g., Trial Ex.768-0009 (2014 presentation describing “[c]ontinued use of concurrent review to ensure appropriate utilization” as the “Mitigation Strateg[y]” for Parity’s “[r]emoval of day and visit limits on IP, Intermediate and OP”); Tr. 307:4-24 (Niewenhous).”

“Perhaps the most telling example of the emphasis UBH placed on financial considerations in its decision making with respect to the Guidelines relates to UBH’s decision not to adopt the ASAM Criteria for making substance use disorder coverage determinations.”

“Despite the clear consensus among UBH’s addiction specialists that the ASAM Criteria were preferable to UBH’s own Guidelines from a clinical standpoint, UBH consistently refused to replace its standard Guidelines with ASAM Criteria without first obtaining approval from the Finance Department. See, e.g., Trial Ex. 524-0002 (moving forward would require “‘green light’ from finance”); Trial Ex. 548-0034 (“BPAC requested that there be a financial review of possible impact of adoption of ASAM [C]riteria prior to moving forward”). But Finance would not approve the change because “a meaningful and valid BenEx modeling of the impact of a move to ASAM [C]riteria . . . [was] not possible due to the paucity of robust and relevant data.” Trial Ex. 548-0034 (original emphasis).”

“Applying the standard of review discussed above, and based on the Findings of Fact related to the challenged Guidelines and UBH’s Guideline development process, the Court finds, by a preponderance of the evidence, that UBH has breached its fiduciary duty by violating its duty of loyalty, its duty of due care, and its duty to comply with plan terms by adopting Guidelines that are unreasonable and do not reflect generally accepted standards of care.”

The Court then held the plaintiffs were entitled to judgment against United and requested scheduling for the remaining aspects of this case.

Next Steps

The case, that war is far from over. The next step in the case will involve determining the remedies (damages) which are available to all plaintiffs and class members and the manner in which the class members will be notified of their rights and remedies. Attorneys’ fees for the plaintiffs’ attorneys, which fees will undoubtedly number in the several million dollar range are yet to be determined.

And United is left with both a public relations nightmare and coming to grips with the reality that its internal practices, policies and guidelines have now been made public. And, these guidelines were determined to be woefully inadequate and did not comply with the generally accepted medical standards. This include the manner in which it implements its guidelines, the manner in which it reviews claims, the manner in which it conducts peer review, and the very manner in which it conducts business. Added to this is the reality that a court has found on a class-wide basis that United violated its duty of good faith and fair dealing with all of its insureds, the class members.

Other Issues with United

The Wit decision follows on the heels of another significant set back for United.

In January of 2019, the California Supreme Court decided not to overturn a California Appellate Court’s decision upholding a $91 million dollar fine rendered against United by the California Insurance Commissioner’s Office.

The Commissioner’s Office found more than 900,000 violations involving patient claims and other issues against UHC subsidiary PacifiCare around the time of their 2005 merger. Those violations were at the heart of the dispute.

The courts held that the Insurance Commissioner does not have to show that an insurance company intended to break the law or engage in a general practice of misconduct. It only needs to show that someone within an insurance company “reasonably should have known that what they were doing violated the state insurance regulations.”

After negotiations, administrative hearings and investigations that lasted years, in 2014, California Insurance Commissioner Dave Jones imposed a record $173 million in fines against United for 908,547 violations of engaging in unfair claims practices and other violations of the insurance code. $91 million of the fines were involved in this appeal with the remaining amounts are involved under a separate appeal.

Whereas this ruling only impacts insurers in the State of California, Insurance Commissioners in other states will undoubtedly attempt to utilize the findings in this case to bolster their own administrative power and oversight of the insurance industry.

Ramifications

So, what are the ramifications of these decisions against United? First, a studied review of the Court’s ruling should be undertaken. It gives incredible insight into the manner in which United’s claim process operates and the deficiencies within their system. Health care providers fighting for their patients can attack United and its peer review process with greater tools now. The Court’s ruling can be used by treatment center and doctors to press for additional life saving treatment.

Since United now has actual notice that its guidelines are woefully deficient and do not comply with the applicable standard of care, arguably, any reliance on those guidelines now would form the basis of many other lawsuits against United. In essence, reliance on defective guidelines which do not comply with the medical standard of care equates to no guidelines at all.

The fight in the Wit case is far from over. Winston Churchill is famously quoted as saying, “This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

As a result of the Great Chicago Fire, Chicago quickly rewrote its fire standards and developed one of the nation’s leading fire-fighting forces. Financial and rebuilding assistance came from all corners of the nation. From tragedy, came a rebirth of newer, better standards and the nation rallying around Chicago.

United … Mrs. O’Leary’s cow just kicked over your lantern.

If you would like a copy of the 106 page opinion, you can contact me at steven@dunnlawfirm.net.