In recent years, insureds have filed an increasing number of lawsuits against healthcare payors challenging their decision to deny coverage for “wilderness therapy”— a form of residential mental and behavioral health treatment involving therapy provided in a non-traditional outdoor or natural settling. Over the past decade, it has become an increasingly popular treatment option for adolescents with mental and behavioral health conditions and/or substance use disorders.

These lawsuits, typically brought under the Employee Retirement Income Security Act and the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (the “Mental Health Parity Act”), have proven difficult to defeat through dispositive motion practice. However, the tide may be turning, albeit slowly.

In the pending Utah case of K.H.B. v. UnitedHealthcare Insurance Company, No. 2:18-cv-00795, United States District Court Judge David Nuffer granted UnitedHealthcare’s motion to dismiss two out of three claims in the ERISA suit alleging the healthcare insurer should have covered the wilderness therapy program attended by the named plaintiff identified only as “K.H.B.”

UnitedHealthcare sought to convince the Court to reject most of a proposed class action brought by the plaintiff, accusing the payor of improperly denying health insurance claims for wilderness therapy to treat adolescents with substance abuse and mental health issues. The plaintiffs alleged that UnitedHealthcare failed to properly interpret and misrepresented the plan when it denied coverage through a blanket exclusion of the so-called wilderness programs. Plaintiffs challenged UnitedHealthcare’s stance that there has not been a consensus reached in the scientific community as to whether such programs are effective, alleging that these wilderness behavioral programs offer a cost-effective method for treating adolescents with mental health conditions. Plaintiffs also argued that UnitedHealthcare’s actions violated the Mental Health Parity Act, which requires health care plans to provide similar coverage for mental health and substance abuse claims as is provided for medical and surgical claims.

Because the claims are on a classwide basis and not alleged losses to the health plan or a plan of any putative class member, Judge Nuffer ruled that the breach of fiduciary duty claim cannot proceed. The proposed class also failed to show how UnitedHealthcare had an “intent to deceive” or misrepresented the plans in denying coverage. The plaintiffs’ claim for equitable relief was also dismissed as duplicative of its recovery of benefits claim under ERISA. Judge Nuffer, however, said that the plaintiffs provided enough facts to show a violation of the Mental Health Parity Act to survive the dispositive motion.