On March 5th, 2019, Judge Joseph Spero of the Northern California District Court published an opinion in the cases of David Wit, et al., and Gary Alexander, et al., v. United Behavioral Health (UBH). Wit and Alexander (hereinafter Wit) represented plaintiffs in a class action suit against UBH (operating as OptumHealth Behavioral Solutions). The plaintiffs asked the court to find for them on two grounds: (1) that UBH breached its fiduciary duty under ERISA (the Employee Retirement Income Security Act of 1974) by failing to properly administer the plaintiff’s health benefits plans, and (2) that UBH arbitrarily and capriciously adjudicated and denied claims for coverage by using overly restrictive Guidelines. And therein lies a tale that reaches back to the early days of managed behavioral care. The court found for the plaintiffs on both grounds. Let’s gather round a cozy, glowing computer screen and find out more, because this case may have far-reaching implications for psychologists and managed behavioral care.
Judge Spero used the testimony of UBH’s very own experts in determining that UBH did not maintain fidelity with their own treatment guidelines. Indeed, the ruling is replete with documentation that the standards UBH said it adhered to—i.e., the ASAM Criteria, CMS Manual, and evidence-based practice guidelines—were deliberately misinterpreted to the detriment of patients. Unfortunately for the defendants, their own arguments often ran counter to the external guidelines that UBH said it used to base care decisions. In addition, the judge pointed out numerous instances where the UBH experts, whose testimony he generally found to be “not credible,” often contradicted their own previous publications or internal guidelines. Some of the more striking of the many findings against UBH were as follows:
- UBH consistently pushed patients toward lower standards of care, using a spurious standard of acuity (the “why now” principle underlying many UBH coverage decisions);
- In doing so, UBH knowingly and purposefully drafted its internal guidelines to limit coverage to acute signs and symptoms;
- UBH focused on acuity or crisis intervention to avoid treating underlying conditions;
- UBH failed to provide for the effective treatment of co-occurring conditions;
- UBH used adult standards to determine care for children and adolescents, and failed to address any different standard between children and adults;
- UBH used a broad misinterpretation of “custodial care” in order to deny claims of patients who were actually in active treatment; and
- UBH routinely rejected external criteria, such as the ASAM Criteria, because their use would increase the expense of managing the benefit (BenEx).
There are many more findings asserting the deliberate denial of acceptable standards of care in the decision. At the heart of the judge’s decision is a rejection of UBH’s use of a long-standing tenet in psychotherapy: the “why now” rubric. “Why now” as a concept is extensively discussed in the document, as for a number of years UBH explicitly included it in their guidelines—removing it only when the suit was allowed to proceed. “Why now,” according to UBH testimony, entered the lexicon from the crisis intervention literature and was based on principles employed in what many of us will remember as the first managed behavioral healthcare organization—Biodyne. This history was challenged by the judge in Wit, and for good reason. It does not appear to be correct. “Why now” has been a construct in psychotherapy for a long time, likely since the days of humanistic treatment where the focus was deliberately on those factors that led the patient to seek treatment at that particular time rather than a focus on underlying personality dynamics. But “why now” was never meant to connote acuity. Instead, it served to focus the patient and provider on circumstances that led to the decision to seek care.
This is not the only challenge United Healthcare is facing; similar suits are pending for denial of treatment of physical conditions. A class action lawsuit is proceeding against the corporate giant for denial of proton beam therapy for prostate cancer (Richard Cole and plaintiffs against UnitedHealthcare Insurance Company in the Southern District of Florida, hereinafter Cole). Although proton beam therapy was approved by the FDA more than 30 years ago and usually has fewer side effects than other treatments, UHC persisted in denying coverage for a treatment they continued to characterize as “experimental.”
What do situations involving denial of care for prostate cancer and substance abuse treatment have in common? More than you might think. Both conditions are quite common, and therefore expensive to insure. Prostate cancer is the neoplastic disease with the highest incidence in North American men, and is the 27th most common cause of premature death in American men. Substance abuse is both more common and more protean, involving multiple substances and numerous medical and behavioral consequences, such as cirrhosis, interpersonal violence, hepatitis, suicide, physical injury, and STIs. Both conditions are costly to treat and treatment outcomes may be uncertain, particularly in advanced stages. Mortality rates are high with both conditions. The burden of both diseases falls disproportionately on less affluent or less educated individuals. Being disadvantaged (geographically or financially) leads to higher mortality and poorer outcomes in general, suggesting access and denial of coverage are key factors influencing outcome.
A further egregious pattern of behavior links the Cole and Wit cases. In both cases, as soon as it was apparent that the case would proceed to trial, UHC revised their criteria, removing the “experimental” label for proton beam therapy and allowing coverage on a case-by-case basis in Cole and scrubbing its “why now” criterion in Wit. Such corporate volte-faces do not indicate remorse, but rather are maneuvers to avoid costly findings of illicit behavior.
UHC is the 6th largest corporation in the US with 2018 revenues of over $226 billion. The temptation is therefore to criticize UHCs corporate culture of putting profits over patients,as a particularly malevolent example of exploitation, but this is not entirely accurate. UHC is a for-profit corporation, and its management is legally bound to maximize return for its shareholders. So instead of viewing UHC as uniquely evil, the more accurate interpretation is that UHC is simply very good at what it does. The problem is not really with UHC, it is with a healthcare system that has allowed for-profit entities to become major fulcrums in the delivery of health care. This, rather than individual corporate behavior, is the fundamental wrong that must be addressed.
So what function does managed care serve other than to enrich shareholders? A good question with a rather counterintuitive answer. All care, whether behavioral or medical, needs to be managed for three essential and closely related reasons: nonspecificity, nonmaleficence, and efficacy. Because we are dealing with the health of individual citizens and society at large, the public weal and parity are corollary reasons that demand care be managed. These are good and justifiable reasons to manage care. Let’s quickly look at each.
- Nonspecificity. Care needs to be managed because health care is subjective and our pretenses to exactitude are often just that – pretentious. Patients are poor judges of the type of care that is best suited to their presenting problem, whether it be a medical or a psychological issue. Providers, too, are rather poor judges of the best intervention and are often surprisingly arbitrary in their choices. In both medicine and psychology, providers’ decisions are influenced by guild pressures (psychotherapy is better than medication—or is medication better than psychotherapy, I forget), training history (that lesion can be treated with either medication or surgery—I’m a surgeon, so let’s operate!), and provider characteristics (I get much better results from aggressive intervention, don’t go to that person down the hall who advises that we monitor things for a while), among myriad other factors. In a world where the “tincture of time” is a powerful curative factor, nonspecificity reigns.
While over the past half century treatment specificity for many physical illnesses has improved, we are on more perilous footing if we make this claim about behavioral interventions. Yes, specificity for treating certain problems has increased to some degree. Specific phobias should be treated with therapies that involve principles of exposure and extinction, not long-term analytic treatment. But beware the guideline that mandates an inflexible regimen for even the most common presenting problems. Cognitive processing therapy (CPT) may work for some patients with PTSD, but other credible treatments exist. Do we deem a patient a treatment failure because they don’t respond to CPT when another intervention might have been more suited to them? Dismantling studies remain the definitive, albeit imperfect, rubric for understanding psychotherapeutic interventions, and dismantling studies consistently tell us one thing—that the active component of any particular psychotherapy is vanishingly elusive, when it can be defined at all. The constant and frustratingly unquantifiable mediating variable in psychotherapy outcome is the quality of the therapeutic relationship.
- Maleficence. Care needs to be managed because we need to protect the public against maleficence. Quackery is not a historical curiosity in either medicine or psychology. When quackery is not downright fraud (i.e., prescribing homeopathic doses of [insert favored substance here] to boost immune responses or cure AIDS; ‘reparative’ therapy designed to change sexual orientation) or illegal behavior (i.e., pill mills or trading sex for prescribed opiates), quackery generally involves the manipulation of the nonspecific effects of medical and psychological interventions. A good quackometer will detect clinicians who prescribe a single form of treatment for any presenting problem (often a single modality of which the practitioner claims authorship). As has often been said, a treatment that is good for everything usually isn’t much good for anything at all. In a world of nonspecificity, management is needed to ensure that professions adopt, and patients receive, the treatments we deem at least transiently to be most effective.
As with nonspecificity, maleficence needs to be managed because patients generally do not know what’s best for them. A male presenting with prostate cancer is unlikely to possess sufficient knowledge to make an informed treatment decision between radiation, surgery, medication, or proton beam therapy. A woman presenting with chronic depression is unlikely to make an informed decision about whether cognitive-behavioral psychotherapy, interpersonal psychotherapy, or medication is the best treatment for her condition. Maleficence in this instance refers to the provider’s burden of doing no harm. We may not know exactly what is best for the patient in many instances, but we do have a good idea about the fundamental soundness of certain interventions and what treatments are no longer supported. Appropriately managed care will cover sound interventions and dismiss outmoded or inappropriate ones.
Maleficence extends beyond providers to institutional deliverers of healthcare. Indeed, one could argue that institutional maleficence is encouraged by the current fragmented care system in America. An example is the current lack of appropriate inpatient options for troubled adolescents, who sometimes spend weeks being boarded in emergency departments until an appropriate bed is available or whose “care” is furnished by law enforcement in the absence of mental health resources. Given the lack of resources, payors may be pressured into supporting substandard care, such as adolescent treatment units that serve as warehouses, rather than providing effective treatment. A current scandal in Oregon centers around the fact that foster teens are being sent to former juvenile detention facilities in the state of Utah at a cost of over $300 a day to the taxpayer.
- Efficacy. Closely related to nonspecificity and maleficence is the principle of efficacy. Cures need to be managed because they often aren’t curative. In measuring efficacy, we must be wary of two key factors: time and changing societal expectations. Treatment progress (or lack thereof) is modulated by the universal solvent of time, and time serves as a universal moderator variable in outcome studies, whether or not its contributions are acknowledged. In outcome experiments, some patients in both wait-list and active treatment conditions get better as a function of time. Some do not, or may get worse. Efficacy studies in medicine and psychology help us determine when active treatments outweigh the benefits of doing nothing and sometimes accurately indicate which treatment is superior. Proper care management here steers providers toward treatments of proven efficacy (e.g., psychotherapy for many mental disorders) and patients from treatments that have less value than time or have risks that exceed demonstrated benefit. The dose-response curve in psychotherapy is, however, extremely difficult to measure, and managed care companies capitalize on this by artificially limiting treatment duration. Having predetermined end points helps, but in the absence of data our standards should be measured in terms of patient outcome, not corporate profits.
- Public weal and parity. Care needs to be managed to improve the public weal and ensure equal treatment for all citizens. Here we presume that healthy citizens assure a healthier society, a thesis that is robustly demonstrated in those nations that spend more money on social determinants of health rather than the treatment of pathology. Caring for the public weal also presumes that we do not disproportionally allocate our national treasure to one benefit, and that there are justifiable reasons to balance costs and benefits of societal programs. Parity presumes that each citizen has equal access to equal care, regardless of their condition or ability to pay. But parity is a meaningless construct unless we simultaneously believe that access to health care is a fundamental right. This belief is not shared by many in government or the healthcare industry.
Unfortunately, both Cole and the Wit cases illustrate that none of these “good” reasons for managed care influence UHC treatment decisions, and that their essential precept for care management focuses exclusively on cost. Although, as we said, cost at the societal level is a valid reason to manage care, it is not when it is used as a rationale to improve corporate profits. Arbitrarily restricting care has expensive consequences that go far beyond the corporate bottom line, particularly in substance abuse. Denial of care or incomplete treatment may lead to relapses necessitating more costly burdens on the healthcare system, such as inpatient detoxification. Continuation of a substance dependence problem leads to other costly societal outcomes resulting from criminal activity or incarceration. Since these societal costs aren’t billed to the managed care corporation, they escape financial penalty for their own behavior. In other words, they are engaging in immoral forms of cost-shifting.
The behavior of UHC and other for-profit insurers would make perfect sense and be morally justifiable if they made their profits by selling widgets to the government or by marketing healthcare nostrums door-to-door. As long as they manufactured well-built widgets and didn’t harm anyone in selling mailbox cures, UHC executives could look forward to a night of slumber uninterrupted by guilt-driven nightmares. Alas, the Wit and Cole cases illustrate that UHC and similar companies make profits by denying proven treatments to those whose lives may depend on them, with consequences that go far beyond the individual. This is unjustifiable by any measure. But inefficiency thrives in chaos, and profit-driven entities exploit inefficiencies to their benefit. Until we as a society and a profession are willing to address the inefficiencies that characterize American health care, we deserve nothing more than the care for-profit entities determine is in their best interests to provide.
Copyright © 2019 National Register of Health Service Psychologists. All Rights Reserved.
‘Immoral and barbaric’: Cancer-surviving judge blasts insurer for denying treatment. Washington Post 1 May 2019. https://www.washingtonpost.com/nation/2019/05/01/immoral-barbaric-cancer-surviving-judge-blasts-insurer-denying-therapy-before-recusing-himself/?utm_term=.b39ea944a511
Cole Case: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case 1:19-cv-21258-UU CASE NO: 19-21258-CIV-SCOLA
Wit Case: United States District Court Northern District of California Case No. 14-cv-02346-JCS; Related Case No. 14-cv-05337 JCS