“Wilderness therapy? What’s that?”
That’s the common response I receive when I mention that wilderness therapy is a hot topic in mental health parity litigation. Wilderness therapy is a form of residential treatment that uses nature and the outdoors as a therapeutic tool. Often used with operationally-defiant or drug-addicted teens, wilderness therapy combines traditional therapy with outdoor activities.
A number of lawsuits have been brought over the last year, alleging that group health plans have been impermissibly denying coverage for wilderness therapy. This series of cases is interesting because it gives us insight into how a court might apply the mental health parity rules based on varying plan language.
Regulations issued under the Mental Health Parity and Addiction Equity Act contain a complicated and wordy requirement that applies whenever a plan includes a non-quantitative limitation on mental health treatment (i.e., a limitation that is not expressed numerically). This requirement would apply, for example, when certain mental health services are subject to prior authorization or excluded altogether.
The non-quantitative limit rules generally prohibit a group health plan from imposing a treatment limitation on mental health or substance use disorder benefits unless, under the terms of the plan as written and in operation, any processes, strategies, evidentiary standards, or other factors used in applying the treatment limitation to mental health or substance use disorder benefits are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation with respect to analogous medical/surgical benefits. (See – I told you it was wordy.)
A limitation that applies only to mental health benefits and does not apply to an analogous medical or surgical benefit will very likely violate the rules.
1. Identify the reason why the service is excluded.
Whenever an employer-provided health plan places a limit on treatment of mental health services, the employer should be prepared to defend that limit under the mental health parity rules described above. The employer will need to be able to identify the factors used in determining that the benefits should be limited and to justify how those factors apply comparably to limit an analogous medical/surgical benefit.
In a recent wilderness therapy case, a plan denied coverage for wilderness therapy because the therapy was not provided in a “Residential Treatment Center.” The definition of that term included the following language:
It does not include half-way houses, supervised living, group homes, wilderness programs, boarding houses or other facilities that provide primarily a supportive environment and address long term social needs, even if counseling is provided in such facilities . . .
Here, the particular standard used to justify the exclusion was included within the document – the employer did not want to cover services that were primarily supportive in nature as opposed to necessary to treat a medical or mental health issue.
Similar language was included in the definition of “Skilled Nursing Facility,” which was viewed as the analogous medical/surgical benefit. Accordingly, it was easy for the court to see that the standard applied comparably to the mental health and medical/surgical benefits, and the court determined that the plan document was in compliance with the mental health parity rules.
2. Ensure that the reason for excluding the service actually justifies the exclusion.
Even if the plan document identifies the reason for the exclusion, and even if the reason for the exclusion applies comparably across the board, the plan could be violating the mental health parity rules if the given reason does not justify the actual exclusion.
In a recent wilderness therapy case, a court noted that the following exclusion was facially neutral:
Services for counseling in the absence of illness, not expressly described in this plan as a Covered Service, will not be covered. Examples of non-covered services: educational, social, image, behavioral or recreational therapy; sensory movement groups; marathon group therapy; sensitivity training; Employee Assistance Program (EAP) services; [and] wilderness programs…
However, the plaintiff alleged that the plan administrator excluded coverage for all wilderness programs, even if they provided counseling to treat an illness. The court denied the plan’s motion to dismiss because denying coverage for wilderness therapy that was provided to treat an illness (which was not justified under the factors used to develop the exclusion) could violate the mental health parity rules in operation.
If an employer does not wish to cover a service at all, the employer will need to carefully consider whether the given reason for the exclusion justifies a total exclusion. For example, the plan might provide that it excludes “any service or supply for education, training, or retraining services or testing, including special education, remedial education, wilderness treatment programs, job training and job hardening programs.” However, that exclusion likely would not justify denying coverage for wilderness therapy that is provided to treat substance abuse.
3. A blanket exclusion may not be the best approach.
Given the discussion above, an employer might be tempted to remain silent on the reason for the exclusion and simply include a blanket exclusion for the service. Under a blanket exclusion, the plan document expressly provides that the plan does not cover the service. For example, a plan may include “wilderness therapy” in its list of exclusions.
A blanket exclusion may seem like a good idea because it clearly communicates the plan’s intent not to cover the service and does not leave open the possibility that the service would be covered in certain cases. However, if the blanket exclusion applies to mental health treatments, a mental health parity inquiry will not end with a review of the plan documents.
The wilderness therapy cases have demonstrated that, when plaintiffs plead mental health violations in the right way, cases challenging blanket exclusions tend to survive a motion to dismiss. When addressing a blanket exclusion for wilderness camps, one court expressly indicated that the defendant would not be able to demonstrate compliance with the mental health parity rules unless it provided a detailed explanation of why wilderness camps were not covered.
In other words, a blanket exclusion is an invitation to litigation.
In addition to providing the lessons described above, the recent slew of wilderness therapy cases have illustrated that courts do not yet approach mental health parity analyses in the same manner. For example, despite my earlier generalization that blanket exclusions lead to litigation, one court granted a defendant’s motion to dismiss because “the Court cannot find that the Plan’s blanket exclusion of services at “wilderness camps” is a treatment limitation in violation of the Parity Act.” However, another court expressed concern “that a blanket exclusion for all wilderness camps, which in practice has only been applied to mental health treatment, may constitute a violation.”
All of this uncertainty is causing me anxiety. I think I need some wilderness therapy.