Finding the Right Legal Challenges

Keeping a close watch on American Pyschiatric Assoc. v. Anthem Health Plans, No. 3:13CV494 (D. Conn.).  In that case, the American Psychiatric Association, along with some physicians and individual plaintiffs, brought fairly broad-based challenges to Anthem’s and Wellpoint’s reimbursement policies.  According to the plaintiffs, the defendants violate MHPAEA because they “generally reimburse psychiatrists less than they reimburse non-psychiatric physicians” and “impose onerous administrative requirements on psychiatrists.”  American Psychiatric Assoc., 2014 WL 4823875, Slip op. at *2.

The plaintiffs’ claims were dismissed in September.  In a nutshell, the Trial Court found that the plaintiffs did not have standing to bring their claims.  The Court’s decision has a lot of detailed analysis of some fairly intricate standing principles, but I wonder whether the decision isn’t really driven by a judicial reluctance to tackle such a broad array of challenges in one case.  Courts are pretty comfortable addressing specific legal violations.  But asking an individual judge to systematically rework reimbursement policies is a pretty heavy lift.  Consciously or unconsciously, many judges will simply not feel comfortable playing that role.

There is an important lesson here for MHPAEA enforcement.  We need to focus on clear, discrete violations that we can prove in a straightforward way, and seek remedies from courts and regulators who are in a position to provide those remedies.  Trying to fix all the world’s problems in a single litigation blow is not likely to be productive, and (even worse) is all too likely to create some unfavorable decisions that we will all have to live with.

In other words, let’s play some small ball.  Let’s not try to hit a home run every trip up to the plate.

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