David Shillcutt, Senior Counsel in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Law360, in “Patients Down, but Not Out, After 9th Circ. Benefits Ruling,” by Kellie Mejdrich. (Read the full version – subscription required.)

Following is an excerpt:

The Ninth Circuit's recent decision that patients couldn't force United Behavioral Health to rethink its denial of some 67,000 coverage claims for mental health and substance use disorder treatment was a win for employers and plans, but the sprawling case likely isn't over.

A three-judge panel in a published opinion on Jan. 26 partially reversed a pair of blockbuster trial court rulings in favor of the patients from 2019 and 2020 in the consolidated class action. Participants in thousands of employee benefit plans governed by the Employee Retirement Income Security Act and administered by UBH, which is UnitedHealth Group's behavioral health unit, first sued over the coverage denials in 2014.

While the panel reversed the district court in full in an unpublished decision in March, the new Wit v. United Behavioral Health  opinion kept parts of the district court's final judgment and class certification order in place, including class certification on a fiduciary breach claim. The panel also preserved part of the trial court's judgment in favor of the patients on the fiduciary breach claim, including findings that UBH designed coverage criteria that conflicted with state laws.

The deadline for a rehearing petition on the ruling, which is expected, is now due March 10….

David Shillcutt, senior counsel at Epstein Becker Green, said the panel's published opinion confirmed that GASC is "just a minimum standard for coverage, and that it's permissible for the plan to say, 'not everything that would meet that standard has to be covered.'"

He said that more broadly, the appellate panel's opinion confirmed that plans "are allowed to apply utilization management" when handling claims.

"I think there's a fundamental question here about the role of health insurance and health plans in our health care system, and the extent to which it's appropriate for health plans to serve as a gatekeeper function to manage care," Shillcutt said. "But it's called a managed system because they are tasked with managing utilization and costs."…

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