Case 3:21-cv-08612 Document 1 Filed 11/04/21 Page 1 of 43
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`PSYCH-APPEAL, INC.
`Meiram Bendat (Cal. Bar No. 198884)
`7 West Figueroa Street, Suite 300
`PMB # 300059
`Santa Barbara, CA 93101
`Tel: (310) 598-3690
`mbendat@psych-appeal.com
`
`ZUCKERMAN SPAEDER LLP
`D. Brian Hufford (pro hac vice forthcoming)
`Jason S. Cowart (pro hac vice forthcoming)
`Devon Galloway (pro hac vice forthcoming)
`485 Madison Avenue, 10th Floor
`New York, NY 10022
`Tel: (212) 704-9600
`Fax: (212) 704-4256
`dbhufford@zuckerman.com
`jcowart@zuckerman.com
`dgalloway@zuckerman.com
`
`ZUCKERMAN SPAEDER LLP
`Caroline E. Reynolds (pro hac vice forthcoming)
`1800 M St., NW, Suite 1000
`Washington, DC 20036
`Tel: (202) 778-1800
`Fax: (202) 822-8106
`creynolds@zuckerman.com
`
`ZUCKERMAN SPAEDER LLP
`Samantha M. Gerencir (pro hac vice forthcoming)
`101 East Kennedy Boulevard, Suite 1200
`Tampa, FL 33602-5838
`Tel: (813) 321-8221
`Fax: (813) 223-7961
`sgerencir@zuckerman.com
`
`Attorneys for Plaintiffs
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`BARBARA BEACH, on her own behalf and on
`behalf of her minor daughter and all others
`similarly situated, JOHN DOE, on his own
`behalf and on behalf of all others similarly
`situated, JOHN LOE, on his own behalf and on
`behalf of his beneficiary son and all others
`
`Case No. 3:21-cv-8612
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`CLASS ACTION COMPLAINT
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`CLASS ACTION COMPLAINT
`CASE NO. 3:21-cv-8612
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`Case 3:21-cv-08612 Document 1 Filed 11/04/21 Page 2 of 43
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`similarly situated, JOHN POE, by and through
`his agent, Jane Poe, on his own behalf and on
`behalf of all others similarly situated, JOHN
`ROE, by and through his agent Mark Roe, on his
`own behalf and on behalf of all others similarly
`situated, and JOHN ZOE, by and through his
`agent, Mark Zoe, on his own behalf and on
`behalf of all others similarly situated,
`Plaintiffs,
`
`v.
`UNITED BEHAVIORAL HEALTH,
` Defendant.
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`CLASS ACTION COMPLAINT
`CASE NO. 3:21-cv-8612
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`Case 3:21-cv-08612 Document 1 Filed 11/04/21 Page 3 of 43
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`BARBARA BEACH, on her own behalf and on behalf of her minor daughter and all others
`similarly situated; JOHN DOE,1 on his own behalf and on behalf of all others similarly situated;
`JOHN LOE, on his own behalf and on behalf of his beneficiary son and all others similarly situated;
`JOHN POE, by and through his agent Jane Poe, on his own behalf and on behalf of all others
`similarly situated; JOHN ROE, by and through his agent Mark Roe, on his own behalf and on behalf
`of all others similarly situated; and JOHN ZOE, by and through his agent, Mark Zoe, on his own
`behalf and on behalf of all others similarly situated (collectively, “Plaintiffs”) complain as follows,
`based on the best of their knowledge, information and belief, formed after an inquiry reasonable
`under the circumstances, against Defendant United Behavioral Health (“UBH”):
`INTRODUCTION
`Defendant UBH is the administrator of mental health and substance use disorder
`1.
`benefits provided by thousands of employer-sponsored health plans that are subject to the
`Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 - 1461 (“ERISA”). In that
`capacity, UBH determines whether to approve plan beneficiaries’ requests for coverage, which
`requires UBH to interpret the written terms of the beneficiaries’ plans. To standardize its
`administration of so many plans, UBH develops and uses various written policies that it applies
`when administering all ERISA plans. This case arises from UBH’s deliberate development of
`policies designed to reduce the number and value of claims UBH would approve, thereby serving
`the financial interests of UBH, its affiliates, and the employer plan sponsors they consider their
`customers. The UBH policies at issue in this case all disregard or directly flout the terms of the
`Plaintiffs’ Plans, and were developed to serve UBH’s interests and those of its plan sponsor
`
`1 Plaintiffs challenge Defendant’s denials of coverage for mental health and substance use disorder
`treatment. Because mental illness and substance use disorders remain subject to pervasive stigma,
`several of the Plaintiffs have legitimate concerns about publicly disclosing their identities. For that
`reason, those Plaintiffs (and, where applicable, their agents) have chosen to file this action
`pseudonymously, using the fictitious names “John Doe”; “John Loe”; “John and Jane Poe”; “John
`and Mark Roe”; and “John and Mark Zoe.” The identities of these Plaintiffs and (where applicable)
`their beneficiaries or agents will be fully disclosed to Defendant and to the Court, so long as such
`identifying information is not released into the public record. Plaintiffs’ motion to proceed under
`pseudonyms will be filed as soon as practicable after Defendant’s counsel has entered an
`appearance.
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`CLASS ACTION COMPLAINT
`CASE NO. 3:21-cv-8612
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`Case 3:21-cv-08612 Document 1 Filed 11/04/21 Page 4 of 43
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`customers rather than those of the plan members. As a result, the policies all breach the fiduciary
`duties UBH owes to all ERISA plan members, including Plaintiffs.
`2.
`First, Plaintiffs challenge UBH’s denials of their requests for benefits pursuant to
`the 2018 and 2019 editions of UBH’s “Level of Care Guidelines,” which UBH used to determine
`whether mental health and/or substance use disorder services for which coverage was requested
`were consistent with generally accepted standards of care. While the Plaintiffs’ Plans required, as
`one essential prerequisite for coverage, that services be consistent with generally accepted
`standards, UBH developed Guidelines for making that determination that were pervasively more
`restrictive than the generally accepted standards.
`3.
`Second, Plaintiffs challenge UBH’s denials of their requests for coverage of
`residential treatment services in their entirety, even though UBH found that some of the services
`provided at that level of care—which are specifically listed as covered services under Plaintiffs’
`plans—were medically necessary for Plaintiffs. Pursuant to UBH’s “Facility-Based Behavioral
`Health Program Reimbursement Policy,” UBH insists that facilities submit claims for
`reimbursement for facility-based care using a “daily rate,” which is a bundled per-diem charge that
`purportedly accounts for all services provided for treatment at a given level of care. When UBH
`denies such claims for lack of medical necessity, UBH denies all coverage, even when UBH
`acknowledges that some of the services bundled into the per diem charge are medically necessary
`for the member, rather than considering those services on an un-bundled basis and approving
`coverage for them.
`
`THE PARTIES
`Plaintiff Barbara Beach is a participant in a self-funded employee welfare benefit
`4.
`plan sponsored by her employer and administered by United Healthcare Services, Inc. (the “Beach
`Plan”). Plaintiff Beach’s minor daughter is Plaintiff’s dependent and a beneficiary of the Beach
`Plan. Plaintiff Beach and her daughter are permanent residents of Saratoga, California.
`5.
`At all times relevant to this Complaint, Plaintiff John Doe was a participant in a self-
`funded employee welfare benefit plan sponsored by his employer and administered by United
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`CLASS ACTION COMPLAINT
`CASE NO. 3:21-cv-8612
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`Case 3:21-cv-08612 Document 1 Filed 11/04/21 Page 5 of 43
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`Healthcare Services, Inc. (the “Doe Plan”). Plaintiff Doe is a permanent resident of Fairfax County,
`Virginia.
`At all times relevant to this Complaint, Plaintiff John Loe was a participant in a self-
`6.
`funded employee welfare benefit plan sponsored by his employer and administered by United
`Healthcare Services, Inc. (the “Loe Plan”). Plaintiff Loe’s son is Plaintiff’s dependent and a
`beneficiary of the Loe Plan. Plaintiff Loe and his son are permanent residents of Northbrook,
`Illinois.
`At all times relevant to this Complaint, Plaintiff John Poe was a participant in a
`7.
`fully-insured employee welfare benefit plan issued and administered by UnitedHealthcare
`Insurance Company (the “Poe Plan”). John Poe’s mother, Jane Poe, is representing his interests in
`this litigation pursuant to a duly executed power of attorney. John and Jane Poe are permanent
`residents of Atlanta, Georgia.
`8.
`At all times relevant to this Complaint, Plaintiff John Roe was a participant in a self-
`funded employee welfare benefit plan sponsored by his former employer and administered by
`United Healthcare Services, Inc. (the “Roe Plan”). John Roe’s father, Mark Roe, is representing his
`interests in this litigation pursuant to a duly executed power of attorney. Mark and John Roe are
`permanent residents of Middletown, Ohio.
`9.
`At all times relevant to this Complaint, Plaintiff John Zoe was a member of a self-
`funded employee welfare benefit plan sponsored by his father’s employer and administered by
`United Healthcare Services, Inc. (the “Zoe Plan”). John Zoe’s father, Mark Zoe, represents his
`interests in this litigation pursuant to a duly executed power of attorney. John Zoe is a permanent
`resident of Nashville, Tennessee. Mark Zoe is a permanent resident of New York, New York.
`10.
`Defendant United Behavioral Health (“UBH”), which also operates as OptumHealth
`Behavioral Solutions, is a corporation organized under California Law, with its principal place of
`business in San Francisco, California.
`11.
`UBH is a third-tier wholly-owned subsidiary of United HealthCare Services, Inc.,
`which is wholly owned by UnitedHealth Group Incorporated. UnitedHealth Group Inc. also wholly
`owns UnitedHealthcare Insurance Company.
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`CLASS ACTION COMPLAINT
`CASE NO. 3:21-cv-8612
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`Case 3:21-cv-08612 Document 1 Filed 11/04/21 Page 6 of 43
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`UBH administers mental health and substance use disorder benefits for commercial
`12.
`welfare benefit plans pursuant to administrative services agreements through which UBH’s
`affiliates, including United Healthcare Services, Inc. and UnitedHealthcare Insurance Company,
`delegate fiduciary responsibilities to UBH. In this role, UBH administers requests for coverage on
`behalf of members of health benefit plans governed by ERISA, including the Plaintiffs’ health
`benefit plans. UBH thus has the authority to make final and binding benefit coverage
`determinations for mental health and substance use disorder services (collectively, “behavioral
`health services”) under the plans it administers.
`13.
`Because of the role UBH plays in making benefit determinations under the plans it
`administers, UBH is a fiduciary under ERISA.
`JURISDICTION AND VENUE
`Defendant UBH’s actions in administering employer-sponsored health care plans,
`14.
`including exercising discretion with respect to determinations of coverage for Plaintiffs under their
`Plans, are governed by ERISA, 29 U.S.C. §§ 1001 - 1461. This Court has subject matter jurisdiction
`under 28 U.S.C. § 1331 (federal question jurisdiction) and 29 U.S.C. § 1132(e) (ERISA).
`15.
`Personal jurisdiction over Defendant UBH exists with this Court. United Behavioral
`Health is a corporation organized under California law, with significant contacts in California.
`16.
`Venue is appropriate in this District. Defendant is headquartered in this District,
`administers plans here and conducts significant operations here. 29 U.S.C. §1132(e)(2).
`INTRADISTRICT ASSIGNMENT
`This case should be assigned to the San Francisco Division of this Court because
`17.
`Defendant UBH is headquartered in this District, administers plans here and conducts significant
`operations here. In addition, assignment to the San Francisco Division is appropriate because this
`action is related to a putative class action currently pending before Judge Seeborg, Jones, et al. v.
`United Behavioral Health, Case No. 3:19-cv-06999-RS (N.D. Cal.), and two certified class actions
`currently on appeal from final judgment in this Court (issued by Chief Magistrate Judge Spero, by
`consent): Wit, et al. v. United Behavioral Health, Case No. 14-cv-02346-JCS (N.D. Cal.) and
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`CLASS ACTION COMPLAINT
`CASE NO. 3:21-cv-8612
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`Case 3:21-cv-08612 Document 1 Filed 11/04/21 Page 7 of 43
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`Alexander, et al. v. United Behavioral Health, Case No. 14-cv-05337-JCS (N.D. Cal.) (referred to
`collectively herein as the “Wit Litigation.”).
`FACTUAL ALLEGATIONS
`
`I.
`
`UBH’s Status as an ERISA Fiduciary
`
`The Plaintiffs’ Plans all identify UBH’s affiliate, UnitedHealthcare Insurance
`18.
`Company, or UBH’s parent, United Healthcare Services Inc. “and its affiliates,” as the Plan’s
`Claims Administrator. The Plans explicitly delegate to the named Claims Administrator the
`discretion to interpret the Plan terms, conditions, limitations, and exclusions. Each Plan further
`authorizes the Claims Administrator to delegate this discretionary authority to other entities that
`provide services for the administration of the Plan.
`19.
`Pursuant to that authority, the Claims Administrator for each of the Plaintiffs’ Plans
`has delegated to UBH the responsibility for administering behavioral health benefits, including
`interpreting Plan terms, conditions, limitations, and exclusions with respect to mental health and
`substance use disorder benefits. As the behavioral health administrator for the Plans, UBH exercises
`this discretion to make coverage determinations for behavioral health services, and to cause any
`resulting benefit payments to be made by the Plans.
`20.
`UBH’s standard practice when making coverage determinations is first, to confirm
`the “administrative” prerequisites for coverage, such as member eligibility and application of any
`non-clinical exclusions or limitations. If the administrative prerequisites are satisfied, UBH then
`assesses whether there are any clinical grounds for denial, including lack of medical necessity or
`clinical appropriateness of the services requested.
`21. When UBH denies a request for coverage under a plan it administers, the legal
`consequence is that the plan will not pay any benefits for the services for which coverage was
`requested. As a result, upon receiving the denial, the participant has only three choices: to pay for
`treatment out-of-pocket; to seek different treatment for which coverage may be approved; or to
`forego treatment altogether.
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`CLASS ACTION COMPLAINT
`CASE NO. 3:21-cv-8612
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`Because UBH has and exercises discretion with respect to the administration of the
`22.
`Plans, and because it makes all benefit determinations for behavioral health coverage under the
`Plans, UBH is a fiduciary within the meaning of ERISA, 29 U.S.C. § 1104.
`23.
`As an ERISA fiduciary, UBH owes a duty of loyalty to plan participants and
`beneficiaries, which requires it to discharge its duties “solely in the interests of the participants and
`beneficiaries” of the plans it administers and for the “exclusive purpose” of providing benefits to
`participants and beneficiaries and paying reasonable expenses of administering the plan. UBH also
`owes plan participants and beneficiaries a duty of care, which requires it to act with reasonable
`“care, skill, prudence, and diligence” and in accordance with the terms of the plans, so long as such
`terms are consistent with ERISA.
`
`II.
`
`Relevant Terms of the Plaintiffs’ Plans
`
`The Beach Plan, the Doe Plan, the Loe Plan, the Poe Plan, the Roe Plan, and the Zoe
`24.
`Plan (collectively the “Plans”) are all governed by ERISA.
`
`a. Covered Services
`
`The Plans cover treatment for sickness, injury, mental illness, and substance use
`25.
`disorders. Residential treatment is a covered benefit under each of the Plans. The Plans do not limit
`coverage for residential treatment to emergency, short-term or crisis stabilization services.
`26.
`The Plans also include coverage for Partial Hospitalization (“PHP”) services and
`Intensive Outpatient (“IOP”) services for mental health and substance use disorder services.
`27.
`The Plans further specify that covered services for mental health conditions and
`substance use disorders include the following services:
` Diagnostic evaluations, assessment and treatment planning;
` Treatment and/or procedures;
` Medication management and other associated treatments;
`Individual, family, and group therapy;
`
` Provider-based case management services; and
` Crisis intervention.
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`b. Generally Accepted Standards Requirement
`
`One essential requirement for coverage under all of the Plaintiffs’ Plans is that
`28.
`services must be consistent with generally accepted standards of care.
`29.
`The Plans use slightly different wording for the generally-accepted-standards
`requirement, but the differences are immaterial. UBH interprets the generally-accepted-standards
`terms of all of the Plaintiffs’ Plans as having the same meaning.
`30.
`Under the terms of the Beach, Loe, Poe, and Roe Plans, “Covered Services” are
`defined as, among other requirements, those that are “Medically Necessary.” The Plans further
`define Medically Necessary services as those that are, among other things, “[i]n accordance with
`Generally Accepted Standards of Medical Practice.”
`31.
`According to the Beach, Loe, Poe, and Roe Plans, “Generally Accepted Standards
`of Medical Practice are standards that are based on credible scientific evidence published in peer-
`reviewed medical literature generally recognized by the relevant medical community, relying
`primarily on controlled clinical trials, or, if not available, observational studies from more than one
`institution that suggest a causal relationship between the service or treatment and health outcomes.”
`If no such evidence is available, the Beach, Loe, Poe, and Roe Plans provide that “standards that
`are based on Physician specialty society recommendations or professional standards of care may
`be considered.”
`32.
` Under the terms of the Doe and Zoe Plans, “Covered Health Services” are defined
`as those the Claims Administrator determines to be, among other things, “consistent with nationally
`recognized scientific evidence as available, and prevailing medical standards and clinical guidelines
`as described below.” The Plans further define “scientific evidence” as “the results of controlled
`Clinical Trials or other studies published in peer-reviewed, medical literature generally recognized
`by the relevant medical specialty community; and “prevailing medical standards and clinical
`guidelines” as “nationally recognized professional standards of care including, but not limited to,
`national consensus statements, nationally recognized clinical guidelines, and national specialty
`society guidelines.”
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`Therefore, under the terms of all the Plaintiffs’ Plans, one of the essential
`33.
`determinations UBH must make when reviewing claims for coverage under the Plans is whether
`the services for which coverage is requested are consistent with generally accepted standards of
`medical practice. As described below, UBH developed its Level of Care Guidelines to use in
`making those determinations with respect to all the commercial plans it administers.
`
`III.
`
`The Generally Accepted Standards of Care
`
`Generally accepted standards of care, in the context of mental health and substance
`34.
`use disorder services, are the standards that have achieved widespread acceptance among
`behavioral health professionals.
`35.
`In the area of mental health and substance use disorder treatment, there is a
`continuum of intensity at which services are delivered. There are generally accepted standards of
`care for matching patients with the level of care that is most appropriate and effective for treating
`patients’ conditions.
`36.
`These generally accepted standards of care can be gleaned from and are reflected in
`multiple sources, including peer-reviewed studies in academic journals, consensus guidelines from
`professional organizations, and guidelines and materials distributed by government agencies,
`including: (a) the American Society of Addiction Medicine (“ASAM”) Criteria; (b) the American
`Association of Community Psychiatrists’ (“AACP”) Level of Care Utilization System; (c) the Child
`and Adolescent Level of Care Utilization System (“CALOCUS”) developed by AACP and the
`American Academy of Child and Adolescent Psychiatry (“AACAP”); and the Child and Adolescent
`Service Intensity Instrument (“CASII”) which was developed by AACAP in 2001 as a refinement
`of CALOCUS; (d) the Medicare benefit policy manual issued by the Centers for Medicare and
`Medicaid Services (“CMS”); (e) the APA Practice Guidelines for the Treatment of Patients with
`Substance Use Disorders, Second Edition; (f) the American Psychiatric Association’s Practice
`Guidelines for the Treatment of Patients with Major Depressive Disorder; and (g) AACAP’s
`Principles of Care for Treatment of Children and Adolescents with Mental Illnesses in Residential
`Treatment Centers.
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`The generally accepted standards of medical practice for matching patients with the
`37.
`most appropriate and effective level of care for treating patients’ mental health conditions and
`substance use disorders include the following:
`a. First, many mental health and substance use disorders are long-term and chronic.
`While current symptoms are typically related to a patient’s chronic condition, it is
`generally accepted in the behavioral health community that effective treatment of
`individuals with mental health or substance use disorders is not limited to the
`alleviation of the current symptoms. Rather, effective treatment requires treatment
`of the chronic underlying condition as well.
`b. Second, many individuals with behavioral health diagnoses have multiple, co-
`occurring disorders. Because co-occurring disorders can aggravate each other,
`treating any of them effectively requires a comprehensive, coordinated approach to
`all conditions. Similarly, the presence of a co-occurring medical condition is an
`aggravating factor that may necessitate a more intensive level of care for the patient
`to be effectively treated.
`c. Third, in order to treat patients with mental health or substance use disorders
`effectively, it is important to “match” them to the appropriate level of care. The
`driving factors in determining the appropriate treatment level should be safety and
`effectiveness. Placement in a less restrictive environment is appropriate only if it is
`likely to be safe and just as effective as treatment at a higher level of care.
`d. Fourth, when there is ambiguity as to the appropriate level of care, generally
`accepted standards call for erring on the side of caution by placing the patient in a
`higher level of care. Research has demonstrated that patients with mental health and
`substance use disorders who receive treatment at a lower level of care than is
`clinically appropriate face worse outcomes than those who are treated at the
`appropriate level of care. On the other hand, there is no research that establishes that
`placement at a higher level of care than is appropriate results in an increase in
`adverse outcomes.
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`e. Fifth, while effective treatment may result in improvement in the patient’s level of
`functioning, it is well-established that effective treatment also includes treatment
`aimed at preventing relapse or deterioration of the patient’s condition and
`maintaining the patient’s level of functioning.
`f. Sixth, the appropriate duration of treatment for behavioral health disorders is based
`on the individual needs of the patient; there is no specific limit on the duration of
`such treatment. Similarly, it is inconsistent with generally accepted standards of
`medical practice to require discharge as soon as a patient becomes unwilling or
`unable to participate in treatment.
`g. Seventh, one of the primary differences between adults, on the one hand, and
`children and adolescents, on the other, is that children and adolescents are not fully
`“developed,” in the psychiatric sense. The unique needs of children and adolescents
`must be taken into account when making level of care decisions involving their
`treatment for mental health or substance use disorders. One of the ways practitioners
`take into account the developmental level of a child or adolescent in making
`treatment decisions is by relaxing the threshold requirements for admission and
`continued service at a given level of care.
`h. Eighth, the determination of the appropriate level of care for patients with mental
`health and/or substance use disorders should be made on the basis of a
`multidimensional assessment that takes into account a wide variety of information
`about the patient. Except in acute situations that require hospitalization, where safety
`alone may necessitate the highest level of care, decisions about the level of care at
`which a patient should receive treatment should be made based upon a holistic,
`biopsychosocial assessment that involves consideration of multiple dimensions.
`UBH, as a claims administrator and ERISA fiduciary, owed the participants and
`38.
`beneficiaries of the Plans it administers a fiduciary duty to take reasonable steps to interpret the
`Plans, including when establishing the criteria by which it would determine whether services are
`consistent with generally accepted standards of medical practice. It was UBH’s duty to use due care
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`and act prudently and solely in the interests of the plan participants and beneficiaries when doing
`so.
`
`39. When interpreting its plans, UBH had access to the independent, publicly available
`sources, described above, that elucidate the generally accepted standards of medical practice. Thus,
`UBH knew, or should have known, what the generally accepted standards of medical practice were.
`
`IV.
`
`UBH’s 2018 and 2019 Level of Care Guidelines Were More Restrictive than
`Generally Accepted Standards of Care
`
`Until recently, UBH exercised its discretion under the plans it administers by, among
`40.
`other things, developing, adopting, and applying its own clinical criteria for determining whether
`services for which coverage is requested are consistent with generally accepted standards of
`medical practice. The clinical criteria UBH adopted as its standardized interpretation of the relevant
`plan terms, and applied in making clinical coverage determinations, were called the UBH Level of
`Care Guidelines.
`41.
`The Level of Care Guidelines were organized by the situs of care, or “level of care,”
`according to progressive levels of service intensity along the continuum of care (i.e., outpatient,
`intensive outpatient, partial hospitalization, residential, and hospital treatment).
`42.
`The 2011 through 2017 editions of UBH’s Level of Care Guidelines—which are
`substantially similar to the 2018 and 2019 editions of the Level of Care Guidelines at issue in this
`case—were among the UBH Guidelines challenged in two certified class actions recently litigated
`to final judgment in this Court: Wit, et al. v. United Behavioral Health, Case No. 14-cv-02346-JCS
`(N.D. Cal.) and Alexander, et al. v. United Behavioral Health, Case No. 14-cv-05337-JCS (N.D.
`Cal.). The cases were consolidated and will be referred to collectively herein as the “Wit Litigation.”
`The plaintiffs in the Wit Litigation asserted claims against UBH under ERISA.
`43.
`Following a trial on the merits of the Wit Litigation, Chief Magistrate Judge Joseph
`C. Spero of this Court found that the 2011 through 2017 editions of the UBH Level of Care
`Guidelines were much more restrictive than generally accepted standards of care, and thus
`conflicted with and were not reasonable interpretations of the relevant terms of the Wit class
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`members’ plans. Accordingly, Judge Spero concluded that UBH breached its ERISA fiduciary
`duties by adopting its pervasively-flawed Guidelines and that UBH abused its discretion when it
`used the Guidelines to deny coverage to the Wit class members.
`44.
`The three certified classes in the Wit Litigation (collectively, the “Wit Class”)
`include only UBH members whose requests for coverage were denied by UBH between May 22,
`2011 and June 1, 2017.
`45.
`A separate action, Jones, et al. v. United Behavioral Health, Case No. 3:19-cv-
`06999-RS (N.D. Cal.), has been filed on behalf of UBH members whose requests coverage were
`denied by UBH between June 2, 2017 and February 7, 2018, based on the 2017 Level of Care
`Guidelines that were found to be defective in the Wit Litigation. Judge Richard Seeborg of this
`Court granted class certification in the Jones case on March 11, 2021.
`46.
`In short, UBH has already been found liable for breaching its fiduciary duties and
`violating ERISA by creating its pervasively-flawed Level of Care Guidelines and using them to
`deny coverage to thousands of its members. UBH’s 2018 and 2019 Level of Care Guidelines suffer
`from the same deficiencies as the 2011 through 2017 editions.
`47.
`Just as in prior years, the 2018 and 2019 Level of Care Guidelines at issue in this
`case contained a set of mandatory “Common Criteria,” all of which had to be satisfied for coverage
`to be approved at any level of care. In addition, the Guidelines contained specific criteria applicable
`to particular levels of care in the context of either mental health conditions or substance use
`disorders, which also had to be satisfied in order for coverage to be approved at a particular level
`of care.
`As noted above, Judge Spero found, after a trial on the merits in the Wit Litigation,
`48.
`that UBH’s 2011-2017 Level of Care Guidelines were pervasively more restrictive than the
`generally accepted standards of care described above, and thus conflicted with the applicable terms
`of the ERISA plans at issue, which required services to be consistent with generally accepted
`standards.
`In a detailed opinion, Judge Spero held that the UBH Level of Care Guidelines in
`49.
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`care because they restricted coverage to the treatment of acute behavioral health conditions and
`symptoms, in contrast to generally accepted standards of care that include concurrent effective
`treatment to address chronic or co-occurring conditions or symptoms.
`50.
`As Judge Spero held, UBH’s 2011-2017 Level of Care Guidelines were “riddled
`with requirements that provided for narrower coverage than is consistent with generally accepted
`standards of care.” Judge Spero further found that these defects were driven by UBH’s financial
`self-interest, and that use of the Level of Care Guidelines to determine whether services were
`consistent with generally accepted standards was “unreasonable and an abuse of discretion because
`they were more