California Court of Appeals

The California Appeals Court recently issued a decision with implications for the enforcement of the California mental health parity act through civil suits. The decision also addresses the defendants’ efforts to escape consumers’ class-action lawsuit based on defendants’ argument that “patients can’t sue us in civil court because the Department of Managed Heath Care (DMHC) is responsible for enforcing the parity act. The court should let DMHC handle these allegations.” The court shot that argument down.

The National Union of Healthcare Workers sent the following communication sharing recent developments and their take on same. It includes links to press coverage as well as discussion of actions by the California Attorney General’s Office and the San Diego City Attorney to memorialize the court’s decision as a precedent that may be cited in future cases:

“Californians now have legal precedent on their side if they sue their insurer to demand mental health treatment that meets the requirements of the state’s mental health parity laws.

In a unanimous ruling earlier this month, a California appeals court revived a class-action lawsuit by families of Kaiser Permanente patients who claim they or their loved ones did not receive adequate mental health care because Kaiser knowingly underfunds mental health care and restricts medically necessary treatment for patients. The appeals court ruling sets the stage for the class action lawsuit to move forward toward a trial.

On Wednesday, there was another important development in this case, which was reported in the San Francisco Chronicle. Following a request from the plaintiffs’ attorneys, Jonathan Siegel and Latika Malkani, who also happen to be NUHW’s attorneys, the appellate judges published their opinion in Futterman v. Kaiser Foundation Health Plan, Inc. in the “Official Reports.” In a May 15 letter to the judges, Attorney General Rob Bonta also requested that the opinion be published.

Published appellate opinions serve as binding precedent in California. Now that the decision has been published, it could make it easier for others to sue their health plans to secure the level of mental health treatment required under California’s mental health parity laws — and harder for health plans to violate the laws without serious consequences.

In addition to Attorney General Bonta, San Diego City Attorney Mara Elliott, who filed a separate class-action lawsuit against Kaiser over “ghost networks,” also requested that the recent Futterman decision be published.

Most California Court of Appeal opinions are not certified for publication and thus generally may not be cited or relied on by other courts or parties in other legal actions.

In requesting that the opinion be published, Attorney General Bonta and City Attorney Elliott noted that the decision would clarify the application of existing law and address an area of high public interest — parity for mental health treatment.

Kaiser had argued that patients shouldn’t be able to sue over violations of mental health parity laws because the Department of Managed Health Care is already charged with enforcing those laws. But since the regulatory agency has not effectively held health plans to account under California’s parity laws, the Futterman precedent should go a long way toward ensuring that patients have meaningful access to protect their rights in court.

We are grateful that the Attorney General of California and City Attorney of San Diego understood the importance of the Futterman ruling and made a persuasive case for it to be published so it can serve as precedent in future cases. This is an important victory for all mental health professionals and patients in California.”

DMHC Update

In other parity news, the Kennedy Forum is organizing a new push on the DMHC’s behavioral health investigations, which are believed to no longer include parity compliance findings.

For background, DMHC received approval in the 2020-21 state budget to conduct focused investigations of all full-service commercial health plans regulated by the Department to “further evaluate health plan compliance with parity and assess whether enrollees have consistent access to medically necessary behavioral health care services.” DMHC was asked to analyze parity as part of the behavioral health investigations in the fall of 2021, stating that investigations that don’t look at parity are woefully incomplete. In response, DMHC agreed to include these analyses.

DMHC staff has responded that they do not plan to include a review of plans’ parity compliance analyses (which plans are required to conduct by federal law) when they issue their behavioral health investigation reports. It is believed by many that the DMHC collected plans’ analyses and found problems (as federal regulators and other states like IL and NY all have), but fear the conclusions will never see the light of day.

CSAP will be joining the Kennedy Forum to: (1) express concern to DMHC and urge DMHC to include parity compliance analyses as part of behavioral health investigation results and (2) continue to collect and analyze parity compliance analyses as part of the behavioral health investigations going forward.