By BRIAN KLEPPER

A class action legal ruling this month, on a case originally filed in 2014, found that UnitedHealthCare’s (UHC) mental health subsidiary, United Behavioral Health (UBH), established internal policies that discriminated against patients with behavioral health or substance abuse conditions. While an appeal is expected, patients with legitimate claims were systematically denied coverage, and employer/union purchasers who had paid for coverage for their employees and their family members received diminished or no value for their investments.

Central to the plaintiff’s argument was the fact that UBH developed its own clinical guidelines and ignored generally accepted standards of care. In the 106 page ruling, Judge Joseph C. Spero of the US District Court in Northern California wrote, “In every version of the Guidelines in the class period, and at every level of care that is at issue in this case, there is an excessive emphasis on addressing acute symptoms and stabilizing crises while ignoring the effective treatment of members’ underlying conditions.” He concluded that the emphasis was “pervasive and result[ed] in a significantly narrower scope of coverage than is consistent with generally accepted standards of care.” Judge Spero found that UBH’s cost-cutting focus “tainted the process, causing UBH to make decisions about Guidelines based as much or more on its own bottom line as on the interests of the plan members, to whom it owes a fiduciary duty.”

In a statement to FierceHealthcare, UnitedHealth said it “looks forward to demonstrating in the next phase of this case how our members received appropriate care…We remain committed to providing our members with access to the right care for the treatment of mental health conditions and substance use disorders.”

It is important to be clear about what transpired here. Based on evidence, a subsidiary of UnitedHealthCare, America’s second-largest health care firm, has been found in a court of law to have intentionally denied the coverage of thousands of patients filing claims. The organization justified the restrictions in coverage using internal guidelines tilted to favor financial performance rather than accepted standards of care. In other words, UBH’s leaders (as well as those at UHC) knowingly defrauded their customers and devised a mechanism to rationalize their scheme. In his ruling, Judge Spero described testimony by UHC representatives as “evasive — and even deceptive.”

While focused on mental health services, this case addresses an important and much broader longstanding conflict. For decades, physicians have complained about health plan gamesmanship, in which coverage decisions are made for reasons other than quality of care and often encroach on the patient-physician relationship. But the problem at hand here is deeper than a turf issue, and goes to accountability. First we need to acknowledge that, in modern health care, different professionals and organizations are responsible for different parts of the care process. In such situations, all participants in that process should be accountable. In the same way that a physician can lose a license to see patients, a health plan should be subject to penalties that make it unable to perform its core business and clinical management functions.

The truth is that US health care is awash in excess, so much so that, to maintain the financial performance they’ve become accustomed to (and that the market has come to expect), many or most health care organizations now depend on egregious unit pricing and unnecessary services. We pay about double – and sometimes as much as six times – what people in other countries pay for the same drugs. US orthopedic surgeons do double the surgeries that are performed in other industrialized countries, with no better outcomes. We have dramatically excessive utilization in cardiometabolic care and in cancer care.

Worse, US health care organizations typically turn a blind eye to these excesses. Health plans tolerate surgeons doing unnecessary or poor quality procedures and typically do not remove them from their networks. Health plans continue to pay surgeons for the inappropriate procedures they perform. The value movement – providing the right care at reasonable pricing – threatens to be devastating to this legacy structure and its financial viability.

These dynamics raise critical questions. In a health system fraught with low value and dishonest performance reporting, how do we punish violators and how do we encourage value and honesty? Does health care need a new regulatory environment? Can vendor organizations be trusted if they earn more as health care costs more?

America cannot move toward a better health system until it stops tolerating health care practices that are fundamentally dishonest, not founded in evidence, and against the interests of patients and purchasers. Finding effective oversight mechanisms – some combination of regulatory and market-based controls – will be essential but challenging, especially so long as government function is susceptible to lobbying influence.

Brian Klepper is Executive Vice President of the Validation Institute and a health care analyst.