Wilderness therapy, also referred to as outdoor behavioral healthcare, is a treatment modality that uses expeditions into the wilderness as a means of addressing behavioral and mental health issues. Claims that health plans pay for wilderness therapy have been denied for various reasons, including the lack of accreditation of the program or licensing of the providers, or that the treatment is not medically necessary.
In the majority of recent wilderness therapy coverage suits, plaintiffs allege wilderness program exclusions violate the Mental Health Parity and Addiction Equity Act (“Parity Act”). Several recent district court decisions provide guidance on whether the criteria used to deny coverage of “wilderness programs” may be considered a potential Parity Act violation.
Under the Parity Act, a group health plan must ensure that (1) “the treatment limitations” applicable to mental-health benefits are “no more restrictive than the predominant treatment limitations applied to substantially all medical and surgical benefits covered by the plan” and (2) “there are no separate treatment limitations that are applicable only with respect to mental health or substance use disorder benefits.” 29 U.S.C. § 1185a(a)(3)(A)(ii). To state a Parity Act violation, a plaintiff must show that:
(1) the relevant group health plan is subject to the Parity Act; (2) the plan provides both medical/surgical benefits and mental health or substance use disorder benefits; (3) the plan includes a treatment limitation for mental health or substance use disorder benefits that is more restrictive than medical/surgical benefits; and (4) the mental health or substance use disorder benefit being limited is in the same classification as the medical/surgical benefit to which it is being compared.
A.H. v. Microsoft Corp. Welfare Plan, No. C17-1889-JCC, 2018 U.S. Dist. LEXIS 94537, at *15 (W.D. Wash. June 5, 2018) (citing 29 C.F.R. § 2590.712(c)(2)(i) and Bushell v. UnitedHealth Grp., Inc., No. 17-cv-2021-JPO, 2018 U.S. Dist. LEXIS 51577, at *14 (S.D. N.Y. Mar. 27, 2018)).
In the seminal case of Welp v. Cigna Health & Life Ins. Co., No. 17-cv-80237, 2017 U.S. Dist. LEXIS 113719 (S.D. Fla. July 20, 2017), Cigna became the first insurer to beat a wilderness therapy challenge after the court dismissed the complaint for failure to allege a Parity Act violation. The plan at issue covered treatment at a “Psychiatric Residential Treatment Facility” or “PRTF,” but excluded coverage for all wilderness programs. Id. at *6. The Welp plaintiff alleged that the “Plan’s terms impermissibly create a separate and non-quantitative limitation on specific mental health benefits” in violation of the Parity Act. Id. at *11. The court rejected the plaintiff’s argument that the defendants maintained a “blanket exclusion for services at wilderness treatment centers.” Id. at *12. Instead, the court concluded the relevant plan documents do not “contain any terms that limit coverage of a residential program because it is conducted in the wilderness.” Id. (emphasis in original). Rather, the plan established a classification of qualifying residential programs (PRTFs), and articulated the relevant criteria for a program to be considered a PRTF. Id. at *13. Importantly, the plan did not categorically exclude mental health residential programs from coverage or create exclusions for treatment of particular mental conditions. See id. at *13-14. According to Welp, the reasons defendants offered for excluding wilderness programs from coverage (i.e., the lack of a multidisciplinary team and consistent supervision by licensed professionals) qualified as non-quantitative treatment limitations under the Parity Act. See id. at *14. However, the court found plaintiff’s Parity Act claim was still subject to dismissal because the plaintiff failed to allege a flaw or disparity in the limitations imposed on mental health treatments in comparison to those on medical/surgical analogues. Id. at *15-17; see also Roy C. v. Aetna Life Ins. Co., No. 2:17cv1216, 2018 U.S. Dist. LEXIS 161905, at *6-8 (D. Utah Sept. 20, 2018) (relying on the criteria set forth in Welp and dismissing plaintiffs’ Parity Act claim with prejudice based on the failure to identify a medical or surgical analogue that the plan treats differently than the wilderness therapy treatment); but see A.Z. v. Regence Blueshield, No. C17-1292 TSZ, 2018 U.S. Dist. LEXIS 134669, at *26 (D. Wash. Aug. 9, 2018) (finding that “it is enough to allege a ‘categorical’ mental-health exclusion without specifying the processes and factors used by a defendant to apply that exclusion” at the motion to dismiss stage of litigation).
Later, in A.H., the court likewise dismissed a Parity Act claim due to the plaintiff’s failure to allege facts demonstrating that the exclusion represented a treatment limitation that was more restrictive for mental health benefits than other medical benefits. Id. at *20. There, the plaintiff took his allegations one step further than the plaintiff in Welp, and alleged that wilderness programs are appropriately classified as intermediate services in the context of mental health treatment and are analogous to skilled-nursing facilities and rehabilitation hospitals in the medical/surgical context. Id. at *17. The Microsoft plan expressly excluded coverage for “educational or recreational therapy or programs; this includes, but is not limited to boarding schools and wilderness programs.” Id. at *9. However, the wilderness program exclusion went on to provide the following exception: “Benefits may be provided for medically necessary treatment received in those locations if treatment is provided by an eligible provider.” Id. Thus, according to the defendant, while the fees and costs of a wilderness program are not covered, medically necessary treatment rendered by a licensed provider during the program could be covered. Id. at *10-11. Although the court found that the plaintiff plausibly alleged that the wilderness program was as an “eligible provider” as that term was defined in the plan, the court ultimately dismissed the Parity Act claim due to the plaintiff’s failure to allege facts demonstrating the exclusion applied only to mental health treatment. Id. at *19-20. Rather, the plan documents suggested the wilderness exclusion applies to all medical benefits. Id. at *19. In support of its holding, the court accepted the defendant’s position that wilderness programs could be used to treat injuries and illnesses aside from mental health issues. Id. at *18; but see Vorpahl v. Harvard Pilgrim Health Ins. Co., No. 17-cv-10844-DJC, 2018 U.S. Dist. LEXIS 121316, at *9-10 (D. Mass. July 20, 2018) (denying motion to dismiss Parity Act claim and rejecting defendant’s argument that plaintiffs’ allegations were deficient since they did not allege that wilderness programs treat only mental health and substance use disorders).
Thus, when evaluating a pleading alleging that a wilderness program limitation/exclusion violates the Parity Act, defense counsel may wish to consider a pleading stage challenge where the pleading fails to compare the limitation/exclusion to a relevant medical/surgical analogue (Welp and Roy C.), or where the limitation/exclusion applies equally to mental health and medical treatments (A.H.).