Symptom Relief Is Bad Medicine; It May Also Be Illegal

Implications of the United Behavioral Health decision

Posted Apr 15, 2019

If you’re like me, you probably thought, of course my health insurer is in the business of denying me services; that’s how they make their money. It may come as a bit of a shock to discover that, under federal law, your health insurer is supposed to put your interests first. Section 1104 (a)(1) of the relevant code provides in part that “a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries….” This responsibility produces conflict with the health insurer’s interest in making a profit.

In Glenn, the US Supreme Court said that the inherent conflict of interest in the health insurance business could be fixed if “the administrator has taken active steps to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances, or by imposing management checks that penalize inaccurate decisionmaking irrespective of whom the inaccuracy benefits.” 554 U.S. at 117.

The import is that if you are covered for a procedure, such as outpatient therapy, your insurer is supposed to decide whether it’s clinically appropriate irrespective of its cost. Instead, insurers (and their agents) like to say no, mainly by making you prove that a) you need therapy and b) you still need it after a few sessions.

A remarkable class action suit (Wit v UBH, Alexander v UBH) was recently decided in a federal court in California that may have nationwide implications. (UBH provides mental health review—approval or denial of services—for insurance companies.) The class consisted of patients who were denied mental health and substance abuse services because the reviewers said they were not clinically necessary. Federal law requires that the guidelines used by reviewers comport with “generally accepted standards of care,” which the Court found were ignored in several respects, but I will cover the ones most relevant to outpatient psychotherapy.

The Court found (in Section 70 of the decision), “It is a generally accepted standard of care that effective treatment requires treatment of the individual’s underlying condition and is not limited to alleviation of the individual’s current symptoms.” In Section 82, the Court found “that in every version of the Guidelines in the class period, and at every level of care that is at issue in this case, there is an excessive emphasis on addressing acute symptoms and stabilizing crises while ignoring the effective treatment of members’ underlying conditions.”

Let that sink in. You are depressed or anxious and seek psychotherapy. Your therapist may work for an HMO, where the economics press her to turn you around as quickly as possible with a handout and a drug, but if she works for a panel or on her own, she can help you conceptualize your anxiety or depression as a personality issue. For example, your perfectionism may lead to your lambasting yourself about the past (depression) or to worry about the future (anxiety), and what you think perfection looks like depends on your personality. For example, you might think you are supposed to know everything, or everything about your work, or everything about golf. Or you might think you are supposed to be infinitely calm or sexually appealing. Good therapy addresses the depression or anxiety by changing your perfectionism, often by eliciting your imperfect self in the confines of the therapy relationship and getting to know that part of yourself better.

So your therapist recommends weekly therapy for as long as it takes (because setting an end date can make you balk at revealing yourself in therapy), but the insurance company tells the therapist she can have 6 sessions to start with. At the end of the 6 sessions, there’s a catch: If the therapy has not been successful, why keep paying for it? If the therapy has been successful, it’s no longer needed. Now comes a federal judge telling your insurer that it is impermissible to focus on the symptoms of anxiety or depression, that the therapist must be allowed to treat the underlying condition.

There is no doubt that much of the pressure on the mental health professions to develop quick treatments comes from patients. Americans want solutions and they want them now. Half of them won’t even administer the whole course of antibiotic drugs when they have pneumonia, so oriented toward symptom relief are many people. And some of the pressure comes from the professions. Jonathan Shedler has pointed out how researchers who don’t know how to do therapy and who are under pressure to crank out studies quickly for grants and tenure don’t want to research open-ended treatment relationships. Whitaker and Cosgrove have pointed out that when psychologists got licensed and undercharged psychiatrists for therapy, psychiatrists looked elsewhere—to drugs—for their living. But a lot of the pressure to find quick solutions comes from the financial interests of health insurers and Big Pharma (which happen to be the two biggest forces in lobbying). Those interests have just been declared illegal in one district court when they affect clinical decision-making.

The Court also found (in Section 75), “It is a generally accepted standard of care that the 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.” Also, in Section 74, “It is a generally accepted standard of care that effective treatment of mental health and substance use disorders includes services needed to maintain functioning or prevent deterioration.”

Taken together, these findings give relational therapy a shot in the arm (as it were), or, if you prefer, they give relational therapy a restorative relationship with federal law and well-known standards of patient care that may sustain, organize, and nurture it for years to come. And this includes people who use health insurance to pay for therapy, not just people who can pay out of pocket to do the real work of psychotherapy or who can afford to create and sustain a therapeutic relationship to assist in identity integration and cohesion.