Most of us who practice psychotherapy have had the experience of interfacing with a managed care utilization reviewer to seek approval for psychotherapy sessions. This process may be to obtain initial approval for any sessions, but often a utilization management review is triggered when a number of sessions has been reached—6 or 20 or some other arbitrary number the insurance company has designated. Participating in utilization management reviews can be a frustrating process for therapists, and the time spent is rarely reimbursed.
Preauthorization and concurrent utilization management reviews became widespread in the 1990s when managed care emerged after the failure of health care reform under President William Clinton. The introduction of managed care and utilization reviews was a response to rapidly escalating health care costs that were increasing annually at rates well in excess of inflation—rates of increase that could not be sustained by government or businesses that provided health insurance to employees. From this perspective, utilization management and managed care arose from the same moral imperative as the environmental movement—that is, recognition of the importance of resource limitations in our lives. Whether it was holes in the ozone layer caused by fluorocarbons, global warming due to increasing human output of carbon dioxide, Amazon deforestation, or US health care costs, we had to come to grips with the limits of resources and find ways to conserve them. Of course, the largely “for profit” nature of US managed care companies often led to draconian stances with respect to approving medically necessary treatments—especially in mental health—an area that was and is still struggling to emerge from stigma in the eyes of funders. Dramatically shortened hospital stays were one result of managed care, but greatly reduced frequency and total number of psychotherapy sessions were another.
Managed care companies developed their own versions of the “generally accepted” standard of care for mental disorders in their utilization management guidelines. These utilization management standards determined the kinds of psychotherapy that would be covered, for how many sessions, and for what indications. Although clinicians might make a case for more sessions in a utilization review call or an appeal, after appeals were exhausted, there was little recourse but to accept what the insurance company offered, offer free care, or find another source of funding. At the point of denial of approval of further sessions, an insurance company utilization manager—sometimes but not always a psychiatrist, psychologist, psychiatric nurse, social worker, or other mental health provider—generally indicated that the therapist was free to provide whatever treatment was felt to be medically necessary for the patient, but it would not be paid for by the insurance company, given that the reviewer’s obligation was to the managed care company and to enforcement of its (however draconian) standards. Therapists were left alone carrying the ethical and clinical risks. This split in clinical responsibility—with the primary obligation of the reviewer to the insurer and the primary obligation of the treating clinician to the patient—was imagined to be ethical and appropriate.
Given this problematic—albeit tolerated—split, for therapists whose principal focus was psychodynamic therapy, for example, it made good clinical sense to use the issue of resource limitation in the psychotherapy by holding in mind the way resource limitation was both a reality and a metaphor. That is, even as patients faced the reality of the limits of the provision of care, we could also use these limits as a metaphor for other limitations in the patients’ lives with which they needed to come to grips. If we could avoid the temptation to project evil onto the managed care company and allowed the limitation to come to life in the transference, we had an opportunity to view the patient’s rage, despair, and grief as an aspect of the negative transference that could be usefully engaged as a metaphor for coming to grips with other limitations.1 This exploration was generally no substitute for the benefit of a longer course of therapy, but it was and remains an often helpful way to make the best use of the limitation of resources in treatment.
Then, in 2008, something interesting happened on a national level—the implications of which have yet to unfold fully, but which may alter the long-tolerated split in responsibility, the utilization management standards used by insurers, and the ethical obligations of utilization managers in profound ways.
THE PARITY LAW AND THE ETHICS OF UTILIZATION REVIEW
The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA or parity law) is the law of the land, while the much maligned Affordable Care Act (ACA)—possibly facing repeal and replacement by something comparable under a Republican president and Congress—both defines mental health and substance use disorder treatment as part of the essential benefit package and cements parity in place for ACA plans. The parity law requires that treatment for mental health and substance use disorders be covered without quantitative (eg, limits in numbers of sessions or dollar amounts available for treatment) or nonquantitative (eg, more onerous utilization review burdens) limitations that are not comparable with or that are more stringent than those applied to medical and surgical care. At this time, implementation of the parity law is incomplete, but the “final rules” have been written and case law will eventually establish clarity about which mental health and substance use disorder utilization management limitations are outside the bounds of the parity law.
A CASE LEADS TO A QUESTION
In 2015, I was treating a divorced, childless, heterosexual woman in her 40s who had a mild alcohol use disorder, depression that did not meet criteria for a major depressive disorder, deep suspicion of authority, and borderline personality disorder. After her divorce, she was struggling with feeling stuck, with deeply troubling worries that she was really gay and had been living a lie, and she was unable to move forward in her life. After 20 weekly sessions, her insurance company required a utilization review to authorize more sessions. I explained the case to the psychiatrist who was serving as the insurance utilization reviewer, including that my patient was still drinking several times a week, but that she was starting to contemplate that alcohol might be playing a role in her troubles. She was paying attention to her drinking, but she was not committed to stopping it.
The reviewing psychiatrist offered 6 more sessions but said 2 things that troubled me. First, she said that, when we next spoke about the case, she would not approve further treatment if the patient were still drinking. Second, she said the company did not cover psychotherapy for treatment of borderline personality disorder or alcohol use disorders. The reviewing psychiatrist urged me to use a different diagnosis when we next spoke in 6 weeks.
Somewhat knowledgeable about the parity law, I was puzzled by the stance the reviewing psychiatrist took based on her company’s utilization management standards—a stance that seemed to include nonquantitative limits to psychiatric treatment that would not likely be used for medical treatment. For example, declining to pay for further sessions if the patient continued to drink sounded like a nonquantitative limit. It seemed obvious to me that the insurance company would not decline further medical appointments for a diabetic patient who failed to follow dietary recommendations. Was this really consistent with parity, let alone with generally accepted standards of care that view motivation barriers as par for the clinical course? Further, it seemed like another nonquantitative limit if therapy for borderline personality disorder would not be covered when there is an American Psychiatric Association (APA) Practice Guideline2 that identifies psychotherapy as the mainstay of treatment for this serious disorder that is associated with significant risk of death by suicide. Did the insurance company arbitrarily decline treatment of medical or surgical conditions for which there was a significant evidence base, that were associated with a considerable risk of morbidity and mortality, and for which there was a practice guideline that recommended specific treatment options? Was this really consistent with parity, or the ACA’s recognition of mental health benefits as “essential?”
In addition to my concerns about the company’s utilization management standards, I found myself wondering if the reviewing psychiatrist was acting ethically if she were using standards that were out of compliance with the parity law. When I asked, she said she did not know much about the parity law; her obligation was to follow the standards set by her company.
BRINGING THE QUESTION TO THE APA
After this call, I found myself thinking about the issues raised by it. For example, I knew that, in several sections, the APA’s Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry 3 state that a psychiatrist, even one working for a managed care company, has an ethical obligation to patients in general and to the public at large. In late 2015, working with several APA Assembly colleagues, I exercised the option all APA members have to ask the APA Ethics Committee questions about whether, given that parity is the law, it was ethical for a utilization reviewing psychiatrist to use utilization management standards that were known to be out of compliance with the parity law—assuming that medical necessity was not an issue. To my chagrin, the response from the Ethics Committee seemed to hold to the old and familiar split that the treating psychiatrist had a different ethical obligation than the reviewing psychiatrist:
In our [the Ethics Committee] opinion, the questions posed can be distilled into one; does the [non-treating] psychiatrist working as a managed care or utilization reviewer owe primary obligation to the patient or to the plan?…. In our opinion, the psychiatrist managed care or utilization reviewer owes his primary obligation to the managed care company and a secondary one to the patient.
Around this time, I came across the December 2015 APA Commentary on Ethics in Practice.4 In topic 3.4.1 on “Working within organized systems of care,” this document states specifically with respect to psychiatrists who “work for third party payors,” that “In these systems, other values often compete with the interests of the individual patient. The fundamental tension of psychiatrists working in organized settings, then, is that the terms of employment relate to the needs of the venture, but as physicians, psychiatrists working in organized systems of care cannot wholly ignore the needs of patients.”
The Ethics Committee opinion could be read to imply an ethical hierarchy in which, for the non-treating insurance company psychiatrist, business needs (ie, deference to insurer-developed utilization management standards, even if inconsistent with generally accepted standards of care or afoul of the parity law) are primary and the patient’s needs are secondary. However, the Commentary on Ethics in Practice recognizes the familiar tension between competing business and clinical interests such that ethical concerns require the balancing of these competing interests by the utilization review psychiatrist in every case.
In a subsequent conference call that included a representative of the Ethics Committee and an author of the Commentary on Ethics in Practice, we reached agreement that the 2015 Commentary on Ethics in Practice represents the official ethical position of the APA, that it was the intent of the Ethics Committee in its response to be fully consistent with the Commentary, and that the Ethics Committee did not intend to imply a hierarchy in its response to my questions.
As a member of the APA Assembly, I then brought this issue to the Assembly in an action paper that was adopted in May 2016. The action paper (1) calls on the APA Board of Trustees to create an ad hoc committee to develop a resource document to educate and inform psychiatrists about the competing ethical tensions faced by psychiatrists serving as managed care utilization reviewers, or as managed care medical directors developing utilization review management standards; (2) states that the committee shall include members of the Council on Healthcare Systems and Financing, the Committee on Managed Care, and psychiatrist ethicists familiar with the 2015 Commentary on Ethics in Practice, and at least 1 member of the Assembly, and a member of the Ethics Committee; and (3) asks that the resource document define and elaborate the ethical tensions described in the 2015 APA Commentary on Ethics in Practice that are likely to be encountered by psychiatrist utilization management reviewers and managed care medical directors, with special regard to the implications of the parity law.
As of this writing, the action paper is with the Council on Healthcare Systems and Financing, which has not yet formed the requested committee, but I will keep readers apprised of developments as they unfold. One hope is that this resource document will contribute to greater compliance with the parity law in the utilization management standards used by insurers—standards generally developed by psychiatrists who have a legal and ethical obligation to ensure that the standards they use for utilization management are consistent with generally accepted standards of care and the parity law. Another hope is that this review and the resulting resource document will contribute to the end of the previously tolerated split that has exempted psychiatrists serving as managed care reviewers or managed care medical directors from adequately weighing concerns about their ethical obligations and the requirements of the parity law if they deny care that is consistent with generally accepted standards. As a wise colleague once said, “Professionalism always trumps business.”
The author is grateful to the following for their help and consultation for this column: Alexander von Hafften, Steven Sharfstein, Manuel Pacheco, Charles Price, Paul Lieberman, Roger Peele, James Maier, Meiram Bendat, Paul Appelbaum, and Laura Roberts.