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HB Counsel Client Alert: “Recent Wilderness Therapy Litigation: Are Your Plan Participants Out in the Woods?”

Recent Wilderness Therapy Litigation:  Are Your Plan Participants Out in the Woods?

Wilderness therapy has been the subject of a growing number of recent court decisions addressing whether denial of coverage for this treatment by employer benefits plans is in violation of state and federal law regarding mental health parity and ERISA.  Due to the growing popularity of this treatment and demand for its coverage, employers sponsoring group health plans should take heed.

Background – What is Wilderness Therapy?

Wilderness therapy treatment provides residential mental and behavioral health therapy in a non-traditional outdoor setting.  Wilderness therapy programs are popular for adolescents with behavioral issues, individuals with mental and behavioral issues, those recovering from traumatic brain injury, and substance abuse disorders.  Program costs for such care may exceed $500 per day for programs lasting weeks, months, and sometimes years.

Wilderness therapy programs may widely vary in terms of licensed medical care provided.

Programs range from glorified summer camps with only outdoor activities to programs with comprehensive therapy services rendered by onsite multidisciplinary teams of psychiatrists, psychologists, pediatricians, licensed therapists, and behavioral technicians.

Historically, employer-sponsored group health plans have excluded or limited coverage for wilderness therapy programs.  In the past few years, nearly a dozen proposed class actions have challenged health plans’ alleged failure to cover wilderness therapy as a means of treatment for mental health and substance use disorders.  As discussed herein, the level of medical services provided in these programs has been a key issue in recent litigation.

Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”)

MHPAEA requires that a group health plan offering coverage for mental health or substance abuse disorders do so in parity with medical/surgical benefits.  In addition, it may not impose nonquantitative treatment limitations (“NQTL”) for those benefits, unless certain conditions are met.

In other words, MHPAEA prohibits limitations or exclusions on treatments for mental health or substance abuse disorders unless corresponding limitations or exclusions apply to medical/surgical benefits.

The Departments of Labor, Treasury, and Health & Human Services issued guidance last year focusing on NQTLs, providing specific examples of parity standards in the context of experimental or investigative treatment limitations and provider networks.  They also revised a disclosure template to help participants and beneficiaries request information on limitations that may affect their mental health and substance abuse benefits, as well as a self-compliance tool that plans can use to review coverage terms and policies and to monitor those of plan vendors.

Key Issue & Finding

Does a limitation or exclusion of treatment for mental health or substance abuse disorders in a wilderness setting, violate MHPAEA?

A limitation or exclusion of treatment for mental health or substance abuse disorders in a wilderness setting may not be in violation of MHPAEA if the plan document broadly applies the limitation or exclusion to medical/surgical benefits as well.

Recent Wilderness Therapy Court Decisions

There are an increasing number of cases hitting the dockets, all with varying theories of potential MHPAEA violations.  However all of the cases seem to fall into a few common themes, such as medical necessity, the program must have a licensed provider, and whether the limitation or exclusion on wilderness therapy has a comparable medical/surgical analogue.

Below are examples of recent cases challenging limitations and exclusions on wilderness therapy:

  • David S. v. United Healthcare Ins. Co. (D. Utah 2019). $180,000 mental health parity claim advanced against United Healthcare stating that United applied more stringent limitations to their claim for wilderness therapy mental health benefits than applies to medical claims.
  • Michael D. v. Anthem Health Plans of Ky., Inc. (D. Utah 2019). Court found that denial of coverage for wilderness therapy program was arbitrary and plan’s exclusion for “wilderness camps” was ambiguous/not clearly defined; suggested that a blanket exclusion for wilderness therapy programs may violate MHPAEA because it effectively imposed a limit on mental health treatment that did not also apply to medical/surgical treatments.
  • v. Microsoft Corp. Welfare Plan (W.D. Wash. 2018). Plan excluded coverage for educational or recreational programs such as wilderness programs, but covered medically necessary treatments received in these settings if furnished by an eligible provider; court dismissed the MHPAEA claim on the basis that the exclusion applied generally and not only to mental health treatment, but nevertheless found that plaintiff had sufficiently alleged under ERISA that the wilderness therapy provider was an eligible provider of a medically necessary treatment; dismissed in December 2018 pending a settlement agreement.
  • Danny P. v. Catholic Health Initiatives (9th 2018). The court held that excluding residential treatment for mental health or substance abuse disorder benefits, but covering analogous facilities for medical/surgical benefits is a violation of MHPAEA.
  • Alice F. v. Health care Serv. Corp. (N.D. III. 2019). The court found no parity violation with the limitation/exclusion in the plan because the plan’s definition of residential treatment center for mental health treatment aligned with its definition of skilled nursing facilities for medical treatment center.

Conclusion

A limitation or exclusion of treatment for mental health or substance abuse disorders in a wilderness setting may not be in violation of MHPAEA if the plan document broadly applies the limitation or exclusion to medical/surgical benefits as well.

Conversely, an exclusion of residential treatment for mental health or substance abuse disorders, while covering analogous facilities for medical/surgical benefits, would be considered a violation of MHPAEA.

Regardless of whether the terms of a plan facially violate parity rules, or in operation, courts appear to be allowing claims to proceed in order to take a deeper dive into facts and plan terms to determine whether a MHPAEA violation has occurred.

Other Considerations

  • ERISA

ERISA requires a fiduciary follow the terms of the plan document, and also permits participants and beneficiaries the right to file suit against plan sponsors and plan administrators to recover benefits outlined in the plan document.

Plan sponsors should carefully review plan document terms to determine whether wilderness therapy programs are specifically addressed.  If wilderness therapy programs are not specifically addressed, then under what provisions would the plan administrator make claims determination for this type of treatment?

Any plan document language added with respect to wilderness therapy programs should be precise and distinguish exclusions or limitations clearly for the various range of wilderness therapy programs available.

 

  • Americans with Disabilities Act (“ADA”)

Plan sponsors should consider the ADA when evaluating limitations and exclusions, as it may prohibit plans from excluding benefits for a particular disability, i.e. mental health benefits.

Take Away

The Department of Labor identified MHPAEA as an enforcement priority in 2018, and has established dedicated mental health parity enforcement teams to conduct investigations.

Lawsuits challenging wilderness therapy exclusions are on the rise.

Group health plan sponsors considering limiting or excluding wilderness therapy programs should consult legal counsel to ensure that the plan provisions are drafted in compliance with state and federal parity rules, ERISA and the ADA, in light of recent litigation.

The content herein is provided for educational and information purposes only and does not contain legal advice.  Please contact our office if you have any questions specific to your group health plan’s coverage of wilderness therapy, or mental health parity.

Dated:  September 24, 2019

 

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