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THE AWARE ADVOCATE
Implications of the UBH Decision for LCSWs
Laura Groshong, LICSW, CSWA Director, Policy and Practice
April 17, 2019
Much excitement has been generated in the mental health community since “the UBH decision” – that is, the decision in the US District Court in Northern California case of Wit et al versus United Behavioral Health, filed March 5, 2019 - found UBH liable with respect to the denials of benefits claims. The clarity and detail of Chief Magistrate Judge Joseph Spero’s 106-page Findings of Fact and Conclusions has provided us with an extraordinary resource for moving forward.
At the same time, there are clear limits to this big win: this is not the end of insurance denials and parity violations. UBH will surely be appealing the judgment, and other judges may or may not uphold the present ruling. Further, the insurance arena is complex. Each state has its own insurance regulations, and each type of plan (ERISA, Medicare, Medicaid, Exchange Plans, or private) has a different source/s of oversight. (CSWA has posted information to clarify the differences in the Clinical Practices section of our website.)
How, then, can we use this decision effectively to affect access to mental health and substance use treatment? At the individual level, if your client is being denied care that you deem critical, the detailed court document provides a list of “generally accepted standards of care” that may prove very helpful in your discussion with the insurance representative.
Judge Spero spent considerable time during the hearing determining what is meant by generally accepted standards of care. Many sources exist, and CSWA will post the judge’s summary of these on our website. The standards listed below were agreed upon by both plaintiffs and UBH; the wording is taken from the court document itself:
The nine plaintiffs whose cases were reviewed during the ten-day bench trial included denials of residential treatment for substance use disorder, for rehab, for mental health treatment, and, in two cases, for teenagers with substance issues, as well as denials of outpatient mental health treatment two to three times per week, and Intensive Outpatient Treatment (IOP) for a minor with SUD. The Judge provided detail for each case considered, noting the discrepancy between the UBH stated standard of care and the actual guidelines that the reviewers was expected to follow. His descriptive language throughout, when referring to the UBH testimony, tended toward generous use of the words “evasive” “even deceptive” and “not credible”.
Given the widespread interest in this case, LCSWs may want to be assertive in appealing denials of care, especially where there is any failure to meet the standards. As you present your argument - even if you are dealing with a different insurer and a different type of plan - a mention of the UBH case will likely have an effect on the discussion. (The CSWA website has an Appeals template in the Members-only section; the generally accepted standards of care list will also be there, as well as a description of the five types of insurance plans.)
Another important avenue for LCSWs may be their state insurance laws/regulations and then perhaps their legislators. The plaintiffs came from different states, and three of these states – Illinois, Connecticut and Rhode Island - have legislation mandating use of the American Society of Addiction Medicine (ASAM) Standards in their insurance laws/regulations; it was not difficult to demonstrate that the UBH denials violated the state laws/regulations. A fourth state, Texas, has Department of Insurance criteria for standards of care; this proved equally effective.
The UBH decision is a good step toward making mental health and substance use parity a reality but is far from the end of making this happen. For now, we can speak out strongly on standards of care, ensure that standards in the client’s policy is being respected in any review process, and feel comfortable noting the UBH loss in court based on violation of these standards, as a basis for appealing a denial of care. As for the next steps, LCSWs should look to state laws/regulations governing insurance, including any standards of care or enforcement of parity. (Such information may be online at the website of the Office of the Insurance Commissioner). Insurance is a state-based system and it may be possible to make a legislative proposal about mental health and substance use that would appeal to your state legislators. Watch for more information from CSWA on this topic soon.
Footnote: Case 3:14-cv-02346-JCS Document 18 (Findings of Fact and Conclusions of Law). Heard and ordered UBH liable 2/28. Filed 3/05/19. 106 pages. United States District Court, Northern District of California.
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