California Passes Law Based on Wit v. UBH Case

iStock/Marcus Lindström

Last year, a California judge issued a landmark 106-page opinion in the case of Wit v. United Behavioral Health (UBH), in which he found that UBH had illegally denied its members coverage for mental and substance use disorders based on flawed medical necessity criteria (see Psychiatric News).

The case was an important step toward ensuring that insurers’ review criteria for mental and substance use disorder treatment complies with generally accepted standards of care. The judge recently issued a remedy order in the case (see Psychiatric News), and in September California enacted a law that addresses many of the case’s findings.

SB 855 requires insurers in the state to make coverage determinations using generally accepted standards of care for mental and substance use disorders using criteria developed by nonprofit, clinical specialty associations. It also prohibits health insurers in California from limiting coverage to short-term or acute treatment. The law is a direct response to the Wit v. UBH decision.

Under the legislation, insurers are additionally prohibited from applying “different, additional, conflicting, or more restrictive utilization review criteria” than the criteria developed by nonprofit, clinical specialty associations.

The bill was introduced by California Sen. Scott Wiener, a Democrat representing San Francisco, and sponsored by the Steinberg Institute and the Kennedy Forum. APA and the San Diego Psychiatric Society (SDPS) also advocated in favor of the legislation.

In early September, APA CEO and Medical Director Saul Levin M.D., M.P.A., and the leaders of over 35 mental health advocacy organizations wrote a letter to California Gov. Gavin Newsom (D) urging him to sign the bill. They noted that, too often, insurers limit coverage to short-term treatment that addresses the individual’s acute crisis, refusing to cover ongoing treatment for the underlying condition.

“Without requirements that health insurers use a standardized definition of medical necessity and follow generally accepted standards of mental health and substance use disorder care when conducting utilization review, insurers can put financial motivations before patients’ needs,” Levin and his co-signers wrote, adding that this can lead to increased use of emergency departments, as well as disability, unemployment, and homelessness.

The idea of requiring insurers to follow generally accepted standards of care for patients with mental and substance use disorders “is a powerful concept” and is another way to approach the ultimate goal of mental health parity, explained David Lloyd, senior policy advisor with the Kennedy Forum. “It doesn’t depend on what’s going on with the physical side of health care, it just depends on what is best for patients with these illnesses.”

The problems of not using generally accepted standards of care is likely not unique to UBH, Lloyd said. “We believe these practices are more widespread,” he said. “Frankly, it is common sense to require insurers to follow generally accepted standards of care.”

Nurse Practitioner Scope Law Passes

Also this year, and despite avid advocacy by California physicians, Newsom signed AB 890, which allows nurse practitioners to practice without physician supervision.

AB 890 was introduced in February 2019. It stalled in committee and was not taken up again until this past July. “It moved very fast. Some physician advocates I spoke to said it was the first time they’d seen that happen,” said Eric Rafla-Yuan, M.D., SDPS’s legislative representative and an assistant clinical professor in the Department of Psychiatry at the University of California, San Diego.

SDPS advocated strongly against the bill, and physician advocacy helped lead to more restrictive language regarding nurse practitioners practicing independently, Rafla-Yuan said. The law is not set to go into effect until 2023.

There’s still more work to do, he added. The law establishes a Nurse Practitioner Advisory Committee tasked with advising and making recommendations on matters related to independently practicing nurse practitioners. The committee is required to include two physicians and surgeons as members.

“SDPS, in conjunction with the California Medical Association and other physician specialty organizations, will be heavily involved in educating regulators on the standard of care required for independent practice,” Rafla-Yuan wrote in his October SDPS legislative update. “SDPS will continue to advocate for legislative and regulatory safeguards to ensure that patients are provided high-quality care, to ensure that the distinction between physicians and nurse practitioners is clear and that patients are not relegated to lower-quality care based on ability to pay or insurance carrier.”

Rafla-Yuan said APA’s Department of Government Relations helped the district branch ramp up its advocacy efforts, such as through trainings that staff have conducted in San Diego. He noted programs like the State Advocacy Conference (see Psychiatric News) as very helpful in educating psychiatrists who are interested in advocacy.

“The APA staff has been very helpful in the last few months,” he said. “We want to make sure other psychiatrists use them as a resource, too. They can share strategies that have or haven’t worked in other states, and that’s valuable.” ■