APA takes action after federal appeals court overturns groundbreaking Wit decision

The 9^th Circuit U.S. Court of Appeals has overturned the 2019 Wit v. United Behavioral Health (UBH) legal decision. The original decision held that for mental health and substance use claims (for self-insured plans), UBH must follow generally accepted standards of care developed by professional associations and the community—instead of prioritizing its own financial bottom line. UBH, which operates as Optum, is the nation’s largest managed behavioral health organization.

The day after the 9^th Circuit Court’s reversal, APA analyzed this new decision and recommended joining forces with other stakeholders and to advocate strongly against it. APA signed a joint letter with the Kennedy Forum, Mental Health America, and other mental health groups calling upon the U.S. Secretaries of Labor and Health and Human Services to file an amicus brief. That brief would urge a 10-judge panel of the 9^th Circuit to reconsider the court’s reversal of Wit. The joint letter will be posted once it is publicly available.

For decades APA has challenged insurance companies putting profits ahead of people. APA was very troubled by the court’s findings in the original Wit decision that for purely financial reasons, UBH vetoed a unanimous decision by its own advisory committee to adopt professional association guidelines. More broadly, APA continues to fight against insurer abuses that target patients, mental health care, and practitioners—all of which are especially counterproductive in this time of vast unmet mental health needs.

Judicial rulings like this reversal of Wit highlight the need for legislative solutions at the federal and state levels that are less at risk of being overturned by the courts. For example, most of the important Wit principles were incorporated into California insurance law under Senate Bill 855. California’s governor signed that bill in 2020, after successful lobbying by California Psychological Association, with support from APA, including a press briefing by APA’s CEO Arthur Evans, PhD.

Although Wit was not a parity ruling, the troubling 9^th Circuit reversal emphasizes the need for legislation to strengthen enforcement of the federal parity law, which was a key ask in APA’s Congressional visits during the Advocacy Summit on March 28, 2022. Many of our remaining insurance/parity concerns about reimbursement, inadequate networks, and abusive reviews/audits will be addressed by giving states more resources to enforce parity around these complex issues, and by giving the Department of Labor the power to levy fines against insurance companies that won’t comply.

APA will continue to work with our state psychological associations and other partners on multiple advocacy fronts to hold insurers accountable for abusive and discriminatory practices that put profits above people.

A good law firm overview of the original Wit court ruling can he found on the Dickinson Wright website.

The original ruling was not based on the federal parity law, but the federal ERISA law that governs self-insured plans. The ruling relied on:

• UBH’s fiduciary obligations as an administrator of self-insured plans;
• language in those plans requiring that treatment be consistent with generally accepted standards of care; and
• UBH’s conflicts of interest.

The case focused on UBH’s development of medical necessity guidelines, particularly level of care guidelines.