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November 18, 2020David S. WichmannChief Executive OfficerUnitedHealth Group9900 Bren Road East,Minnetonka, MN 55343Dear Mr. Wichmann,As part of an ongoing inquiry into the barriers Americans face when accessing mental health andsubstance use disorder (SUD) care, I write seeking information about your company’s growingbusiness in behavioral health as well as concerns that have been raised regarding UnitedHealth’sadministration of mental health and SUD benefits. UnitedHealth is the largest insurer ofbehavioral health in the nation 1 and has faced widespread allegations of improperly denyingcoverage for mental health and SUD services. Thus, it is critically important to have a clearerunderstanding of how UnitedHealth administers such benefits to ensure that Oregonians 2 andAmericans across the country are able to receive the mental health and SUD services they need.Unfortunately, the need for quality and affordable behavioral health care has only increasedduring the COVID-19 pandemic, which has subjected families to extraordinary levels ofdisruption, isolation, financial instability, and grief. 3Since 2014, UnitedHealth’s behavioral health business has been the subject of a major classaction lawsuit, Wit v. United Behavioral Health, over its denial of coverage for behavioral healthtreatment. In March 2019, a federal court ruled that the level of care guidelines used by UnitedBehavioral Health (UBH)—which also operates as OptumHealth Behavioral Solutions, one ofthe company’s many subsidiaries and affiliates—led to the wrongful denials of claims for rules.UnitedHealth administers behavioral health benefits for large health plans operating in Oregon. See use.121
health and SUD services for 50,000 people between 2011 and 2017. 4 The court found that inaddition to violating its duties under the Employee Retirement Income Security Act (ERISA),UnitedHealth violated laws in multiple states related to the coverage of SUD services. 5 InAugust 2020, the court issued an additional ruling that UnitedHealth’s coverage determinationguidelines—which incorporated these overly restrictive level of care guidelines—also violatedbeneficiaries’ legal rights. 6According to the court, UBH’s guidelines were “significantly narrower” than generally acceptedstandards of care and had become “infected” by financial incentives. 7 The guidelines used“language that strongly conveys to clinicians that they should err on the side of moving membersto lower levels of care even where there is uncertainty about whether such a move is safe.” 8 Thecourt found that “the emphasis on cost-cutting that was embedded in UBH’s Guidelinedevelopment process actually tainted the process, causing UBH to make decisions aboutGuidelines based as much or more on its own bottom line as on the interests of the planmembers.” 9 For example, the court concluded that UnitedHealth’s refusal to adopt the AmericanSociety for Addiction Medicine’s (ASAM) criteria was “not based on clinical justification,” butfinancial considerations:Indeed, all of its clinicians recommended that the ASAM Criteria be adopted. Theonly reason UBH declined to adopt the ASAM Criteria was that its FinanceDepartment wouldn't sign off on the change. In other words, UBH’s FinanceDepartment had veto power with respect to the Guidelines and used it to prohibiteven a change in the Guidelines that all of its clinicians had recommended.(emphasis included in original)These unlawful practices had devastating consequences for UnitedHealth’s members, includingadults and children, many of whom suffered severe health setbacks when they were unable toreceive needed care, or were responsible for tens of thousands of dollars in out-of-pocketexpenses after obtaining care without coverage. One of the named plaintiffs, Lauralee Pfeiffer,died five months after UnitedHealth’s coverage denial, having been “deterred from seeking anyfurther residential treatment due to UBH’s previous benefits denials.” 10In recent weeks, the court ordered UnitedHealth to reprocess the 67,000 behavioral health claimsit denied for the class members in the suit. 11 The court also subjected UnitedHealth to a 10-yearWit v. United Behavioral Health (UBH), No. 14-CV-02346-JCS, 2019 WL 1033730, at *46 and 51-54 (N.D. Cal.Mar. 5, 2019). The court noted that coverage may have been denied to beneficiaries in 3,000 different healthinsurance plans. See Order granting motion for class certification, September 19, 2016, Document 174 at 3-4.5Id. at *42 (“the Court finds that during the class period UBH violated the laws of Illinois, Connecticut, RhodeIsland, and Texas by failing to apply criteria that were in compliance with the laws of those states for makingcoverage determinations relating to substance use disorders treatment”).6Wit v. UBH, No. 14-CV-02346-JCS, 2020 WL 4517283, at *1 (N.D. Cal. Aug. 6, 2020).7Wit v. UBH, No. 14-CV-02346-JCS, 2019 WL 1033730, at *22 and 47 (N.D. Cal. Mar. 5, 2019).8Id. at *30.9Id. at *53.10Amended Complaint, at 42-43.11Wit v. UBH, No. 14-CV-02346-JCS, 2020 WL 6479273, at *53 (N.D. Cal. Nov. 3, 2020); ear-injunctions-forunitedhealthcare-affiliate.42
injunction requiring the company to comply with coverage determination guidelines developedby professional associations “that do not have the financial incentives that caused UBH todevelop flawed guidelines” in the first place. 12 The court also appointed a special master tooversee United’s compliance with the order. 13Separate from the Wit litigation, UnitedHealth has faced scrutiny for similar practices withrespect to behavioral health coverage. For example, in November 2019, Pennsylvania regulatorsfined UnitedHealth 1 million for improper coverage practices, particularly with respect to SUDservices and autism treatment.14 According to a 2019 news report, UnitedHealth’s practicesforced families to wait for their loved ones’ health to deteriorate in order to qualify for neededservices. 15 For example, in 2016, one UnitedHealth representative advised a family to pursueMedicaid for their son after denying him coverage for residential mental health treatment. 16 Therepresentative also recommended that he seek out a lower level of care not sought by the familyand not covered by the plan.The Senate Committee on Finance has jurisdiction over Medicare, Medicaid, and the Children’sHealth Insurance Program (CHIP). As Ranking Member, I am committed to ensuring thatprogram beneficiaries are able to access the coverage they need, including coverage forbehavioral health services that complies with the requirements of the Affordable Care Act(ACA), the Mental Health Parity and Addiction Equity Act, and other federal laws. 17 To thisend, I recently submitted a request to the Governmental Accountability Office (GAO) to examinehow frequently insurers contract-out their behavioral health benefits and how such contractsimpact beneficiaries’ coverage. 18 As Wit examined coverage determinations for consumersenrolled in plans subject to ERISA, I want to ensure similarly restrictive and unlawful guidelinesare not being applied to claims for other enrollees, including Medicare, Medicaid, and CHIPbeneficiaries. 19Behavioral health appears to be a large and growing part of UnitedHealth’s business.UnitedHealth has more than a half dozen “significant subsidiaries” whose names—or the namesof entities doing business on their behalf—suggest involvement in the behavioral healthbusiness. 20 In recent years, UnitedHealth has cited behavioral services, generally, 21 and“behavioral services [in] new Medicaid markets,” specifically, as growth drivers for itsWit v. UBH, No. 14-CV-02346-JCS, 2020 WL 6479273, at *44 and 55 (N.D. Cal. Nov. 3, 2020).Id. at tal-health-addiction-treatment/.20Behavioral Healthcare Options, Inc.; U.S. Behavioral Health Plan, California; OptumHealth Behavioral Solutionsof California; United Behavioral Health; United Behavioral Health Of New York, I.P.A., Inc.; Life Strategies;Optum Idaho, OptumHealth Behavioral Solutions; Plan 21, /000073176618000037/a2018q3exhibit991.htm.12133
subsidiary OptumHealth. 22 The company’s subsidiary OptumRx also operates more than 500community mental health facility pharmacies, which the company reports “help align benefits,care management and pharmacy services for those living with complex, chronic medical andbehavioral health issues.” 23 Earlier this year, UnitedHealth cited the growth of these pharmaciesand digital behavioral health in its quarterly report to shareholders, 24 following reports that itplanned to purchase the remote behavioral health provider AbleTo for 470 million. 25UnitedHealth also reported increasing the “number of behavioral health professionals using ourproprietary online behavioral health platform by 45% to more than 10,000.” 26 Moreover,behavioral health coverage is an important component of Medicaid and CHIP programs, which isa major part of United’s business. 27 Taken together, these disclosures underscore the enormousfootprint of UnitedHealth in the behavioral health space.In light of this litigation and your company’s role in the behavioral health landscape, I amseeking more information about how UnitedHealth (including and not limited to all of itssubsidiaries, affiliates, partners and contractors) is carrying out its behavioral health benefits andactivities. Please provide responses to the following questions by December 15, 2020:1. In reports to shareholders, UnitedHealth has repeatedly cited growth in its behavioralhealth business as a driver of increased revenue while noting acquisitions and expansionsin the behavioral health space.a. Please describe the scope of the behavioral health business of UnitedHealth. Thedescription should include but not be limited to its revenue, service offerings, andthe number of plans it serves.b. Please provide additional information about what factors are driving revenue andnet income growth in UnitedHealth’s behavioral health business lines.c. How many beneficiaries does UnitedHealth serve as an administrator forbehavioral health benefits? How has that changed since 2015? How many of thesebeneficiaries are covered by Medicare, Medicaid, or CHIP?2. In the Wit litigation, UnitedHealth indicated in a court filing earlier this year that it wasstill using some of the coverage determination guidelines that had been found to beinconsistent with generally accepted standards of care for a “limited” number of selffunded plans. /a2020q2exhibit991.htm.27Medicaid and CHIP plans operated by UnitedHealth fall under UnitedHealthcare Community & State, whichreports participating in Medicaid/CHIP programs in 31 states and D.C. and serving 5.9 million people as ofDecember 31, intiffs’ Response to UBH’s Supplemental Remedies Brief (June 15, 2020), Case No. 3:14-CV-02346-JCS(“But UBH also admits that it is still using its Coverage Determination Guidelines for an unspecified, purportedly22234
a. Is UnitedHealth continuing to use these invalidated guidelines to make coveragedeterminations for beneficiaries enrolled in Medicare Advantage, Medicaid, orCHIP coverage? Please also describe whether UnitedHealth has used suchguidelines for these policies in the past.b. How do UnitedHealth’s behavioral health coverage guidelines for self-funded andfully-insured commercial benefits differ from its guidelines for Medicare,Medicaid and CHIP benefits?c. A court injunction is requiring UnitedHealth to adopt coverage guidelines issuedby professional associations for health plans subject to ERISA. How will thesechanges impact the coverage guidelines or practices used for the MedicareAdvantage, Medicaid, or CHIP benefits that UnitedHealth administers?3. In reports to shareholders, UnitedHealth notes that it has been “involved or is currentlyinvolved in various governmental investigations, audits and reviews,” including “routine,regular and special investigations, audits and reviews by CMS, state insurance and healthand welfare departments, state attorneys general, the Office of the Inspector General, theOffice of Personnel Management, the Office of Civil Rights, GAO, the Federal TradeCommission, U.S. Congressional committees, the U.S. Department of Justice, the SEC,the Internal Revenue Service, the U.S. Drug Enforcement Administration, the U.S.Department of Labor, the Federal Deposit Insurance Corporation, the Defense ContractAudit Agency and other governmental authorities.” Please provide a list of all such“investigations, audits and reviews” related to UnitedHealth’s behavioral health business,and its administration of behavioral health benefits in Medicare, Medicaid, and CHIP.4. In 2016, after denying a patient coverage for the residential care he needed, aUnitedHealth representative recommended that a patient seek out Medicaid to access alower level of care the patient and his family had not requested. 29 This patient was 20years old at the time and enrolled in his family’s private health plan. 30a. Please describe the circumstances under which UnitedHealth employees are, orhave been, advised to recommend that beneficiaries in commercial lines ofbusiness seek out coverage under Medicaid or other federal health care programs.b. Please describe other instances in which UnitedHealth recommended thatcustomers seek out coverage under Medicaid or other federal programs becauseits commercial coverage for behavioral health was inadequate. Please describewhether such recommendations are more common for certain types of patients,including patients who require residential treatment for mental health or SUDtreatment, or young adults under the age of 26.‘limited’ number of self-funded plans, based on the assertion that those plans ‘do not condition coverage on adetermination of medical life-saving-care.30Id.; https://www.youtube.com/watch?v bJOdGqyyXOY.5
c. Please provide the number of Medicaid or CHIP beneficiaries in UnitedHealthlines of business who have been diagnosed with a serious mental illness and werepreviously or are currently enrolled in self-funded or fully-insured commercialplans administered by UnitedHealth?d. What is the average per member per year revenue and margin for beneficiarieswho receive services for a serious mental illness who are enrolled inUnitedHealth’s commercial, Medicare Advantage, Medicaid, and CHIP lines ofbusiness? Please distinguish between self-funded and fully-insured policies.5. Entities sometimes contract with UnitedHealth to administer their behavioral healthbenefits (thereby “carving-out” the responsibility for the benefit).a. How do these entities typically ensure the compliance of UnitedHealth withfederal coverage requirements, including with regards to which mental health andSUD benefits must be covered and the extent to which such coverage must haveparity with medical benefits?b. Please identify barriers to ensuring compliance with behavioral health coveragestandards in these cave-out arrangements.Thank you for your prompt attention to this important matter. If you or your staff have anyquestions, please contact Elizabeth Jurinka at Elizabeth [email protected], ElizabethDervan at Elizabeth [email protected], and Peter Gartrell atPeter [email protected],Ron WydenUnited States SenatorCC: Wyatt W. Decker, Chief Executive Officer, OptumHealth.6
, over its denial of coverage for behavioral health treatment. In March 2019, a federal court ruled that the level of care guidelines used by United Behavioral Health (UBH)—which also operates as OptumHealth Behavioral Solutions, one of the company’s many subsidiaries and affili
