How Congress Could Respond to Wit v. UBH

In the United States, an estimated 53 million adults live with a mental health condition, and fewer than half (46%) received treatment in 2020.¹ Amid this concerning state of the behavioral health landscape, Wit v. United Behavioral Health (also referred to as Wit v. UBH) has weaved its way through the judicial system.

At issue in Wit v. UBH is whether health plans can use medical necessity guidelines that are inconsistent with generally accepted standards of care (GASC) to make coverage decisions for mental health and substance use treatment. In 2017, the U.S. District Court for the Northern District of California found that UBH had breached its fiduciary duties to 60,000 plaintiffs by denying their mental health claims based on flawed medical necessity guidelines. However, that decision was reversed by the U.S. Court of Appeals for the Ninth Circuit in 2022. The case is now pending reconsideration before the Ninth Circuit. Psych-Appeal and Zuckerman Spaeder LLP represent the plaintiffs in the case.

A final ruling in Wit v. UBH – whichever way it is ultimately decided – will have far-reaching implications for mental health and substance use disorder treatment nationwide. However, another branch of government could tackle the issues at stake here: Congress.

In a Legal Sidebar released by the Congressional Research Service in December 2022, legislative changes to the Employee Retirement Income Security Act (ERISA) are presented for possible congressional consideration. The brief notes that in September 2022, the House of Representatives passed the Mental Health Matters Act, which would amend ERISA Section 502. If cases were to be brought under Section 502, district courts would be required to review benefit determinations de novo, without deference to claim administrators.

The brief also proposes a legislative change option that incorporates GASC into ERISA. As it currently stands, no federal law requires plan administrators to rely on generally accepted standards of care when making coverage decisions for behavioral health treatment. However, as noted by the Congressional Research Service, Congress could amend ERISA to require that insurers’ medical necessity guidelines be based on GASC, as is already the case in California, Illinois, Connecticut, Rhode Island, Oregon, and Texas. Congress could even go one step further and make this requirement applicable to all private health plans.

To achieve mental health parity, we need robust legislative action to ensure that Americans living with mental health conditions fully receive the prompt and compassionate treatment they need to embark on recovery.

The CRS Legal Sidebar titled “Behavioral Health Benefit Coverage and Wit v. United Behavioral Health” can be accessed here.

For more information on Wit v. UBH, see Wit v. UBH Update: New Finding Supports Plaintiffs and Federal Court Finds United Behavioral Health Illegally Denied Mental Health Coverage.

^{1 National Institute of Mental Health. Statistics: Mental Illness. Available at: https://www.nimh.nih.gov/health/statistics/mental-illness [Accessed 12 January 2023].}