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The U.S. Court of Appeals for the Ninth Circuit in San Francisco, California

Image: The U.S. Court of Appeals for the Ninth Circuit in San Francisco, California. (Source: Ken Lund, https://flic.kr/p/hoh1wJ; CC BY-SA 2.0, https://creativecommons.org/licenses/by-sa/2.0/)

By Jillian Hughes, Executive Vice President of Communications at Mental Health America

If you’ve ever tried to get mental health care paid for by your health insurance plan, you know it is a miserable experience from beginning to end – you cannot find an in-network provider, and if you do, the insurance company makes it difficult to continue treatment, denying coverage or discharging you from care the minute you are not suicidal. 

I have personal experience fighting this battle and know too well the toll it takes, so I am particularly furious with the Ninth Circuit’s decision in Wit v. United Behavioral Healthcare (UBH), issued this week. The court gave UBH a free pass to deny care to people with mental health conditions, sending them and their families into desperation and despair.

It took me over 10 years from the time I first thought I needed a therapist to actually see one. This was for a whole host of reasons – including being unfamiliar with how to navigate my own insurance, and then struggling to find someone in-network that wouldn’t break the bank. Then, I finally found the holy grail – an in-network therapist close to home that I clicked with.

Not long into treatment, my therapist started getting regular phone calls from my insurer, United Behavioral Healthcare, asking why I still needed therapy because they did not want to pay anymore. I was confused and upset. An insurance company wouldn’t call my nephrologist and say, “prove to us she still needs weekly dialysis appointments, we don’t want to pay for them.” So why were they calling my therapist? My therapist explained that insurance companies routinely deny coverage or discharge clients in inpatient and outpatient settings once they are not acutely ill.

The mental health legal community has been working for decades to require insurers to treat mental health the same as physical health and stop arbitrarily denials of inpatient or outpatient mental health care without any medical basis. In 2019, a district court found that United Behavioral Healthcare developed its care guidelines solely for the purpose of denying care. In a 100-page detailed opinion, the court said United’s guidelines were inconsistent with and not based on any generally-accepted medical standards. UBH was required to re-process the unfair coverage decisions.

But this week, a three-judge appellate court dealt a crushing blow to this work– they overturned the 2019 decision and gave insurers a free pass to make up guidelines once again. Adding insult to injury, this came in the form of a 7-page unpublished decision.

Decisions like this remind us that discrimination is ongoing and structural. What could be a greater example of stigma than denying fundamental rights in an unpublished short opinion? The court was clearly saying that the right to fair mental health treatment is so unimportant, it can be dismissed out of hand and there is no need for anyone to study or read the opinion. It’s insulting to the 1 in 5 people in this country who live with a mental illness.

The court distorted the plaintiffs’ claims and characterized them as a request that UBH provide all generally accepted care. The plaintiffs were not arguing that they had to provide all services that were consistent with generally accepted care. They were arguing that when an insurer claims to be providing a benefit, such as intensive outpatient care, nutrition counseling, residential, and inpatient care, they must use generally accepted standards in deciding whether and how much of that care you receive.

So what does this decision and the distorted legal reasoning mean, practically speaking? It means that if an insurance plan says it covers residential or inpatient care, that does not mean you get to stay as long as medical professionals under generally-accepted guidelines say you should stay. You can be discharged after a few days and given a follow-up appointment for a month from now and the insurer has the right to create a standard that drives up their profits. If you need intensive outpatient care to avoid hospitalization or after an inpatient stay, it can be denied or prematurely cut off. Any time that the insurer wants to make more money, they can develop a standard to provide less care.

United Healthcare made $17 billion in profits in 2021 and with decisions like this one, they stand to make much more in the future. We can only hope that the 9th Circuit Court of Appeals is embarrassed by the judges that so cavalierly left Americans with mental illness and substance use disorders helpless against insurance companies and grants en banc review. Just as they have with other civil rights battles, the courts have an important role to play and can overturn prior misguided decisions based on the reality of what is happening to people who are subjected to discrimination.

Congress has a role to play as well, they need to add teeth to parity laws and allow monetary penalties for violations. It’s time for courts and policymakers to address the structural discrimination that denies life-saving mental health and substance use care.

Mary Giliberti, J.D., Chief Policy Officer at Mental Health America, contributed to this blog.