The Wit Case - Why it Matters

Posted by Lisa Gingerich on Nov 18, 2019 4:30:00 PM

Lisa M. Gingerich
Michael Best

The Wit v. United Behavioral Health decision (issued by Judge Joseph Spero of the United States District Court in the Northern District of California on March 6, 2019) will impact how managed care coverage decisions are made.  The case addressed claims by several United Health Group members whom UBH denied coverage for behavioral health care.  The lawsuit was based on UBH’s alleged breach of fiduciary duties to its members, under the Employee Retirement Income Security Act (ERISA), when UBH (i) applied coverage guidelines that are far more restrictive than those that are generally accepted (by CMS, American Society of Addiction Medicine and evidence-based medical guidelines) and (ii) prioritized cost savings over members’ interests. 


In a nutshell, the Court agreed with the members that UBH had violated its duties to the members.  In its ruling, the Court found that the recognized guidelines state that:

  1. Effective treatment requires treatment of the individual’s underlying condition and is not limited to alleviation of the individual’s current symptoms.
  2. Effective treatment requires treatment of co-occurring behavioral health disorders and/or medical conditions in a coordinated manner that considers the interactions of the disorders and conditions and their implications for determining the appropriate level of care.
  3. Patients should receive treatment for mental health and substance use disorders at the least intensive and restrictive level of care that is safe and effective.
  4. When there is ambiguity as to the appropriate level of care, the practitioner should err on the side of caution by placing the patient in a higher level of care.
  5. Effective treatment of mental health and substance use disorders includes services needed to maintain functioning or prevent deterioration.
  6. Appropriate duration of treatment for behavioral health disorders is based on the individual needs of the patient; there is no specific limit on the duration of such treatment.
  7. The unique needs of children and adolescents must be taken into account when making level of care decisions involving their treatment for mental health or substance use disorders.
  8. The determination of the appropriate level of care for patients with mental health and/or substance use disorders should be made on the basis of a multidimensional assessment that takes into account a wide variety of information about the patient.


UBH stated that it applied these criteria, but in fact, it had specifically not adopted these guidelines and applied far more restrictive criteria to coverage decisions.  The Court was particularly disturbed by UBH’s failures with regard to children and adolescents.  Coverage lawsuits for other diseases and symptoms are ongoing and may benefit from the members’ success in Wit.  Billions of dollars are being claimed for unreimbursed care and the harm caused by the termination or inadequate treatment.  The financial impact of the case will be significant for UBH and its parent, United Health Group, for those seeking reimbursement for claims and for those who were harmed by the decisions. 


As the Wit case was developing and since the judgment was issued, some insurers have changed coverage criteria and guidelines to better align with generally accepted industry standards.  The extent to which these changes will actually result in coverage decisions that satisfy the fiduciary duties of the decision makers and for the benefit of members remains to be seen. 


Those seeking care, pre-authorization or coverage for treatment provided should reference the guidelines above when claims or coverage are wrongfully denied. 



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