By Patrick J. Kennedy

This week, the federal Ninth Circuit Court of Appeals issued a devastating ruling in the Wit v. United Behavioral Health (UBH) case that, once again, sets America back while struggling to cope with increasing mental health challenges—especially among youth—and historic fatal overdose rates.  

The appeals court overturned the trial court’s determination that UBH was liable for making medical necessary determinations for mental health and substance use disorder (MH/SUD) services in a manner that was inconsistent with generally accepted standards of MH/SUD care. 

This likely means back to business as usual for the largest managed behavioral health care company in the country. Millions of Americans with mental health and substance use disorders will continue to face discriminatory practices that limit their access to often lifesaving care. 

In two 100+ page decisions, the Wit trial court described in exhaustive detail how UBH made medical necessity determinations for mental health and addiction care based on its own financial interests rather than the interests of patients. After extensive expert testimony, the trial court described the eight generally accepted standards of mental health and substance use disorder care that UBH was obligated to follow when making medical necessity determinations. These standards, which neither UBH in its appeal nor the Ninth Circuit disagreed with, are:

1. Treat underlying condition, not only current symptoms.
2. Treat co-occurring conditions.
3. Treat at the least intensive level of care that is safe and just as effective as higher level of care (cannot sacrifice effectiveness because a treatment is equally safe).
4. Err on the side of caution by using a higher level of care when there is ambiguity.
5. Include treatment services to maintain function. 
6. Determine duration of treatment based on the individual’s needs, without arbitrary limits.
7. Address unique needs of children/adolescents into account.
8. Use a multidimensional assessment to determine the appropriate level of care (e.g., The ASAM Criteria).

The trial court then demonstrated that UBH created its own flawed medical necessity criteria that were inconsistent with these standards and proceed to deny MH/SUD coverage to more than 50,000 Americans—half of whom were children and adolescents.

To remedy these harms, the trial court ordered UBH to use criteria consistent with generally accepted standards of MH/SUD care, including criteria from the American Society of Addiction Medicine (ASAM), American Academy of Child and Adolescent Psychiatry, and the American Association of Community Psychiatrists. Finally, a major insurer had been held accountable.

Tragically, the ruling of Ninth Circuit three-judge panel undid this progress in a single paragraph, saying it’s “not unreasonable” for health insurers’ coverage determinations to be inconsistent with generally accepted standards of MH/SUD care. 

In reality, few things could be more unreasonable than using self-serving criteria to make coverage determinations that can profoundly impact the course of a person’s life. 

In making its determination, the panel even got basic facts of the case wrong. It reasoned that health plans are not obligated to cover treatment consistent with generally accepted standards of MH/SUD care if the treatment sought is not a covered benefit under the plan. Yet the plaintiffs never even agued this. 

The plaintiffs simply argued that if services like outpatient, intensive outpatient, and residential treatment are covered benefits (and they were in all these plans), UBH must make medical necessity determinations that are consistent with generally accepted standards of MH/SUD care—nothing more, nothing less.

Outrageously, the panel did not cite a single holding of the trial court, or any single fact from the case, despite the trial court’s exhaustive findings. They also ignored other important issues, including the fact that UBH violated multiple states’ laws that mandate use of non-profit professional association guidelines like ASAM Criteria.

For far too long, patients have been subject to the whims of their insurers’ coverage determinations. Too many people have died because the evidence-based mental health and addiction treatment they needed was deemed “not medically necessary.” 

We implore the Ninth Circuit to review and reverse their decision. We simply can’t go backwards—in a time of great need—to protect the bottom line of a for-profit company. Access to care is a human right. This ruling is on the wrong side of history.