A recent ruling issued by the U.S. District Court for the District of Utah in M.A. v. United Healthcare Insurance rejected an insurer’s blanket exclusion of coverage for wilderness therapy.[1]
The court’s decision is notable because it applied a novel approach to the issue based on requirements mandated by the Employee Retirement Income Security Act.
The requirements impose duties on plan administrators to give careful consideration to all of the evidence presented, and preclude the raising of new rationales for claim denials for the first time in litigation.
What Is Wilderness Therapy?
Wilderness therapy is a form of behavioral health treatment used to treat adolescents as a means of promoting self-awareness and instilling insight into maladaptive behavior and which helps patients develop positive behavior in an environment free from negative influences.[2]
As the website for GoodTherapy points out, wilderness therapy is an offshoot of outdoor education programs such as Outward Bound, and combines such experiences with concurrent psychotherapy.[3]
Providers of wilderness therapy are licensed by state agencies, accredited and utilize licensed behavioral health professionals to administer individual and group psychotherapy in the course of those programs.[4] However, most health insurance companies refuse to cover wilderness therapy even though the efficacy of such programs is supported by a growing body of research.[5]
Case Background
M.A. was a participant in a group health benefit plan administered by United, and the case involved treatment that his daughter, Z.A., received at BlueFire Wilderness Therapy in 2018, followed by residential behavioral treatment at Uinta Academy. The plan provided benefits for covered medically necessary services, including behavioral health treatment, but excluded wilderness therapy on the ground that its efficacy was unproven.
Z.A. had an extensive history of mental health treatment that began when she was in sixth grade and worsened thereafter. In addition to expressing suicidal thoughts online, Z.A. abused drugs and alcohol and was repeatedly hospitalized for overdoses and self-harm.
Ultimately, Z.A. received treatment at BlueFire, followed immediately by admission to Uinta due to Z.A.’s need for constant monitoring and supervision due to the risk of self-harm. However, coverage for the treatment at BlueFire was denied.
After pre-litigation appeals failed to overturn the denial, litigation ensued.
The Court’s Ruling
The court ruled for the plaintiff in a novel ruling, which found the plan’s exclusion for wilderness treatment ambiguous. The policy defined wilderness therapy as “a behavioral health intervention targeted at children and adolescents with emotional, addiction, and/or psychological problems,” which “typically involves a wilderness setting, group living, individual and group therapy,” and “educational/therapeutic curricula including back country travel and wilderness living skill development.” The plan further stated that wilderness programs
“may be certified … and/or licensed,” “some” are publicly funded, “typically market” to parents of “troubled teenagers[,]” and can offer a “range of services, including drug and alcohol treatment, confidence building, military-style discipline, and psychological counseling.”
Finally, the definition listed additional terms that also “may” be viewed as “wilderness therapy.”
Although other courts had upheld similar exclusions, the court in this case took a different path. Because of the plan’s use of the terms “some, may, and typically,” the court found the exclusion was “susceptible to more than one meaning.”
The court observed that the ambiguity was further demonstrated because Z.A. received similar treatment at both BlueFire and Uinta, but the plan covered some of the treatment at Uinta while completely rejecting the charges from BlueFire.
Hence, the court found that since Z.A.’s treatment at both BlueFire and Uinta constituted “a behavioral health intervention targeted at children and adolescents with emotional, addiction, and/or psychological problems,” the disparate treatment demonstrated a patent ambiguity in plan language.
The court was also critical of the denial because the defendants simply ignored the treating professionals’ opinions and denied coverage without any rationale explaining their disagreement with Z.A.’s providers. The court explained why the absence of explanation was arbitrary, noting:
When denying benefits claims, plan administrators are required to do more than simply review the record and issue a decision consisting of their conclusions.
“Rather, ERISA procedural regulations require the administrator ‘provide the claimant with a comprehensible statement of reasons'” for denying benefits… . A denial letter that consists of mere conclusory statements, unsupported by reasoning or citations to the record, doesn’t provide “any analysis, let alone a reasoned analysis[,]” and is therefore arbitrary and capricious.
Further, despite a recital by the defendants’ reviewing doctors that they had reviewed the plaintiffs’ submissions, there was no explanation offered as to what records were actually reviewed and how they were considered. Nor did the defendants explain the inconsistency between the denial of coverage for treatment at BlueFire while coverage for similar treatment at Uinta was approved.
Although some rationale was provided in the briefing before the court, since it had not previously been offered, it was rejected as a post hoc rationale, which is impermissible in ERISA claims.
Conclusion
Wilderness therapy is not without its doubters; and behavioral health treatment in an outdoor setting has understandably raised concerns by insurers since there is no analogous treatment for physical disorders recognized as the standard of care.
However, policy exclusions such as the one at issue in this case go too far by not recognizing the therapeutic value of such programs, which offer far more than an outdoor experience. Licensing and accreditation mandate that the programs incorporate appropriate supervision, and group and individual psychotherapy from licensed providers are incorporated into the programming.[6] Thus, wilderness programs essentially provide the same treatment as residential treatment centers, but in an alternate setting insulated from pernicious outside influences.
Federal and state mental health parity laws mandate that treatment in a residential behavioral health treatment facility be covered by all plans in the same manner as other sub-acute treatment such as rehabilitation following major orthopedic procedures, like a hip or knee replacement.[7] Therefore, in the absence of a justifiable basis for health plans to categorically exclude such treatment, the M.A. ruling’s cogent analysis offers adolescent patients a path to getting the treatment they need when all else has failed
Mark DeBofsky is a shareholder at DeBofsky Law Ltd.
This article was first published by Law 360 on October 11, 2023.
[1] M.A. v. United Healthcare Insurance, 2023 U.S. Dist. LEXIS 174803, 2023 WL 6318091. (D. Utah September 28, 2023)
[2] See, “Wilderness Therapy,” at GoodTherapy, available at https://www.goodtherapy.org/learn-about-therapy/types/wilderness-therapy.
[3] Id.
[4] Id.; also see, AEE-OBH Accredited Programs at https://www.obhcenter.org/accreditedprograms/.
[5] See, Burns, “Why Wilderness Therapy Works,” Psychology Today December 1, 2017.
[6] See, e.g., Utah regulations at R501-8 (outlining licensing requirements for outdoor youth programs).
[7] See, 29 U.S.C. § 1185a and 29 C.F.R. §2590.712..
