Case 3:21-cv-09326 Document 1 Filed 12/02/21 Page 1 of 9
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`David M. Lilienstein, SBN 218923
`david@dllawgroup.com
`Katie J. Spielman, SBN 252209
`katie@dllawgroup.com
`DL LAW GROUP
`345 Franklin St.
`San Francisco, CA 94102
`Telephone: (415) 678-5050
`Facsimile: (415) 358-8484
`
`Attorneys for Plaintiff,
`BRIAN A.
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`
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`BRIAN A.
`
`
`
`v.
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`BLUE CROSS OF CALIFORNIA dba
`ANTHEM BLUE CROSS; and DOES 1
`through 10,
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`
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`
`
`
`
`Plaintiff,
`
`Defendants.
`
` Case No.
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`PLAINTIFF BRIAN A.’S COMPLAINT
`FOR BREACH OF THE EMPLOYEE
`RETIREMENT INCOME SECURITY
`ACT OF 1974 (ERISA); BREACH OF
`FIDUCIARY DUTY; ENFORCEMENT
`AND CLARIFICATION OF RIGHTS;
`PREJUDGMENT AND POSTJUDGMENT
`INTEREST; AND ATTORNEYS’ FEES
`AND COSTS
`
`
`
`Plaintiff, BRIAN A. herein sets forth the allegations of this Complaint against Defendant BLUE
`CROSS OF CALIFORNIA dba ANTHEM BLUE CROSS (“Anthem”); and DOES 1 through 10.
`PRELIMINARY ALLEGATIONS
`JURISDICTION
`Plaintiff brings this action for relief pursuant to Section 502 (a) (1) (B) and Section 502
`1.
`(a) (3) of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. Section 1132 (a) (1) (B).
`This Court has subject matter jurisdiction over Plaintiff’s claim pursuant to ERISA Section 502 (e) and
`(f), 29 U.S.C. Section 1132 (e), (f), and (g) and 28 U.S.C. Section 1331 as it involves a claim made by
`Plaintiff for employee benefits under an employee benefit plan regulated and governed under ERISA.
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`COMPLAINT
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`CASE NO.
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`Jurisdiction is predicated under these code sections as well as 28 U.S.C. Section 1331 as this action
`involves a federal question.
`This action is brought for the purpose of recovering benefits under the terms of an
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`employee benefit plan and enforcing Plaintiff’s rights under the terms of an employee benefit plan.
`Plaintiff seeks relief, including but not limited to: past mental health benefits in the correct
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`amount related to Defendant’s improper denial of Plaintiff’s claim; prejudgment and post judgment
`interest; general and special damages; and attorneys’ fees and costs.
`PARTIES
`Plaintiff BRIAN A. is, and at all times relevant was, a resident of California.
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`At all relevant times, BRIAN A. participated in the Anthem Bronze PPO 5600 health Plan
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`(“the Plan”), an employee welfare benefit plan within the meaning of ERISA section 3(1), 29 U.S.C. §
`1002(1).
`Mental Health benefits under the Plan were at all relevant times administered by
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`Defendant Anthem.
`Anthem is a health insurance provider authorized to transact and currently transacting the
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`business of insurance in the State of California and is the claims administrator of the Plan and coverage
`at issue herein.
`At all relevant times, the Plan was an insurance plan that offered, inter alia, mental health
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`benefits to employees and their beneficiaries, including Plaintiff. This action involves mental health
`claims denied by the Plan’s mental health claim administrator.
`FACTS
`The Plan guarantees, warrants, and promises “Mental Health Services” for members and
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`their beneficiaries, including but not limited to: health care services, mental health care, and treatment at
`issue herein.
`L.A. is BRIAN A.’s daughter, and was, at all relevant times, a beneficiary of the Plan.
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`11. At all relevant times, the Plan was in full force and effect.
`The Plan guarantees, promises, and warrants benefits for medically necessary covered
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`health care services.
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`COMPLAINT
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`CASE NO.
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`Case 3:21-cv-09326 Document 1 Filed 12/02/21 Page 3 of 9
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`The Plan defines “Medically Necessary” health care services as:
`health care services that a Physician, exercising professional clinical judgment,
`would provide to a patient for the purpose of preventing, evaluating,
`diagnosing or treating an illness, injury, disease or its symptoms, and that are:
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`In accordance with generally accepted standards of medical practice,
`•
`• Clinically appropriate, in terms of type, frequency, extent, site and duration,
`and considered effective for the patient’s illness, injury or disease,
`• Not primarily for the convenience of the patient, Physician or other health care
`Provider, and
`• Not more costly than an alternative service, including the same service in an
`alternative setting, or sequence of services that is medically appropriate and is
`likely to produce equivalent therapeutic or diagnostic results as to the diagnosis
`or treatment of that patient’s injury, disease, illness or condition. For example,
`we will not provide coverage for an inpatient admission for surgery if the
`surgery could have been performed on an outpatient basis or an infusion or
`injection of a Specialty Drug provided in the outpatient department of a
`Hospital if the Drug could be provided in a Physician’s office or the home
`setting.
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`For these purposes, “generally accepted standards of medical practice” means
`standards that are based on credible scientific evidence published in peer-
`reviewed medical literature generally recognized by the relevant medical
`community, Physician specialty society recommendations and the views of
`Physicians practicing in relevant clinical areas and any other relevant factors.
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`The Plan guarantees coverage for inpatient and outpatient treatment of mental
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`health conditions.
`California’s Mental Health Parity Act, Health & Safety Code §1374.72, as well as the
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`Federal Mental Health Parity and Addictions Equity Act of 2008 (“MHPAEA”) specifically require that
`health care plans provide medically necessary diagnosis, care and treatment for the treatment of specified
`mental health illnesses at a level equal to the provision of benefits for physical illnesses.
`California Senate Bill 855 (“SB 855”) prohibits health care service plans from limiting
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`benefits or coverage for mental health and substance use disorders to short-term or acute treatment. It
`also prohibits health insurers that use so-called level of care guidelines to determine mental health claims
`from using insurer-generated, proprietary guidelines and instead requires the use of guidelines developed
`by nonprofit organizations familiar with mental health care claims.
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`COMPLAINT
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`CASE NO.
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`SB 855 requires health care service plans or insurers to apply specified clinical criteria
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`and guidelines in conducting utilization review of the covered health care services and benefits and
`prohibits the plan or insurer from applying different, additional, or conflicting criteria than the criteria
`and guidelines in the specified sources. SB 855 recognizes Level of Care Utilization System, Child and
`Adolescent Level of Care Utilization System, Child and Adolescent Service Intensity Instrument, and
`Early Childhood Service Intensity Instrument (LOCUS/CALOCUS and CASII/ECSII) criteria for mental
`health disorders as “prime examples of level of care criteria that are fully consistent with generally
`accepted standards of mental health and substance use care.”
`L.A. was diagnosed with, inter alia, major depressive disorder, persistent depressive
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`disorder, and anxiety.
`L.A. has a long history of depression. However, because of the shame she felt surrounding
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`her depression, L.A. did not disclose its severity to her mother until 2020.
`L.A. began seeing a therapist, however, her depressive symptoms continued to increase.
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`L.A. was prescribed Prozac, however, her symptoms continued to worsen. She couldn’t
`focus in school, had difficulty getting out of bed, getting dressed, and lost her appetite. She also
`verbalized the desire to commit suicide.
`In an attempt to control her worsening condition, L.A.’s psychiatrist prescribed Wellbutrin
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`in addition to Prozac. Nevertheless, L.A.’s condition continued to deteriorate. She had to take a medical
`leave from school because thoughts of suicide were so pervasive that she was unable to concentrate or
`do any work.
`23. At the recommendation of her treatment providers, L.A. was admitted to Newport
`Academy Redwood (“Newport”).
`24. At all times relevant, L.A.’s treatment at Newport was medically necessary, based upon
`the reasoned medical opinions of her treaters.
`Following her discharge from Newport, L.A.’s condition deteriorated
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`dramatically. She continued outpatient therapy and remained on medication but continued to
`report severe levels of depression including feelings of hopelessness, low mood, suicidal
`ideation, and minimal coping skills.
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`COMPLAINT
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`CASE NO.
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`L.A.’s depression and suicidal ideations progressed to the point that she was
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`admitted to John Muir Psychiatric Hospital on a 5150 hold. Due to ongoing suicidal ideations
`and a specific plan to hang herself, L.A. was transferred to John Muir Psychiatric Hospital’s
`five-day inpatient program.
`27. At the recommendation of her treatment providers, L.A. was admitted to Open Sky
`Wilderness Program (“Open Sky”).
`28. At all times relevant, L.A.’s treatment at Open Sky was medically necessary, based upon
`the reasoned medical opinions of her treaters.
`Plaintiff filed claims for mental health benefits pursuant to the terms of the Plan for L.A.’s
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`treatment at Newport and Open Sky.
`30. Anthem denied Plaintiff’s claims for treatment at Newport and Open Sky.
`Plaintiff timely appealed Anthem’s denials of L.A.’s claims for treatment at Newport and
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`Open Sky.
`32. Anthem denied Plaintiff’s appeals.
`33. Not only were Anthem’s denials unreasonable in light of the obvious medical necessity
`for L.A.’s ongoing mental health care, but the denials also violated the California Mental Health Parity
`Act, as well as the Mental Health Parity and Addictions Equity Act of 2008 (“MHPAEA”), which alone
`provided a basis for approving all of the care for L.A. that is at issue herein.
`In denying Plaintiff’s claim for care and treatment for L.A. at Newport, in violation of SB
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`855, Anthem used MCG “level of care guidelines” that are unfair and biased against approving claims
`for residential treatment such as are at issue herein, and that do not reflect reasonable standards in the
`medical community.
`The level of care guidelines used by Anthem to deny L.A.’s care fall below reasonable
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`standards of care in the medical community, as explained by the court in Wit v. United Behavioral
`Health, 2019 WL 1033730 (N.D.Cal. March 5, 2019).
`36. Anthem breached the generally accepted standard of care herein by failing to accept and
`consider that treatment is not limited to simply alleviating an individual’s current mental health
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`COMPLAINT
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`CASE NO.
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`symptoms, and by ignoring and failing to consider the long-term, chronic nature of L.A.’s mental health
`needs.
`37. Anthem breached the generally accepted standard of care herein by failing to accept and
`consider that effective treatment of co-morbid, or co-occurring behavioral health disorders requires
`consideration of the interaction of these disorders, and the implications of these disorders on
`determining the proper and appropriate level of care.
`38. Anthem breached the generally accepted standard of care herein by failing to accept and
`consider that where there is ambiguity over the proper level of care, that practitioners should err on the
`side of caution and should place patients in the higher level of care.
`39. Anthem breached the generally accepted standard of care herein by improperly focusing
`on acute symptomology and failing to consider that the same level of care is needed when an acute crisis
`has passed, and by failing to consider the likelihood of regression and risk of further acute
`symptomology.
`40. Anthem use of insurer-generated, proprietary guidelines violated the California Mental
`Health Parity Act.
`41. As a result, Plaintiff was forced to pay for L.A.’s care and treatment at Newport and
`Open Sky from his own personal funds.
`Plaintiff has exhausted all administrative remedies regarding the denial of L.A.’s
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`mental health benefits.
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`COMPLAINT
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`CASE NO.
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`CLAIMS FOR RELIEF
`FIRST CAUSE OF ACTION
`Recovery of Benefits Due Under an ERISA Benefit Plan
`(Against BLUE CROSS OF CALIFORNIA dba ANTHEM BLUE CROSS; DOES 1-10;
`Enforcement and Clarification of Rights, Prejudgment and Post Judgment Interest, and
`Attorneys’ Fees and Costs, Pursuant to ERISA Section 502(a)(1)(B), 29 U.S.C. Section
`1132(a)(1)(B))
`Plaintiff incorporates all preceding paragraphs of this Complaint as though fully set forth
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`herein.
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`ERISA Section 502(a)(1)(B), 29 U.S.C. Section 1132(a)(1)(B) permits a plan participant
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`to bring a civil action to recover benefits due under the terms of the plan and to enforce Plaintiff’s rights
`under the terms of a plan.
`45. At all relevant times, Plaintiff and his daughter, L.A. were insured under the health care
`plan at issue herein, and Plaintiff’s daughter, L.A., met the covered health services and medical necessity
`criteria for treatment required under the terms and conditions of the Plan.
`By denying Plaintiff’s mental health claim, Defendant has violated, and continues to
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`violate, the terms of the Plan, the terms of ERISA, and Plaintiff’s rights thereunder.
`The provisions of an ERISA plan should be construed so as to render none nugatory and
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`to avoid illusory promises.
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`SECOND CAUSE OF ACTION
`Breach of Fiduciary Duty Under ERISA § 502(a)(3), 29 U.S.C. Section 1132(a)(3)
`(against Defendant BLUE CROSS OF CALIFORNIA dba ANTHEM BLUE CROSS; DOES 1-
`10)
`Plaintiff incorporates all preceding paragraphs of this Complaint as though fully set forth
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`herein.
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` ERISA § 404(a)(1)(A), 29 U.S.C. § 1104(a)(1)(A), requires fiduciaries to discharge their
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`duties solely in the interests of employee benefit plan participants and beneficiaries and for the exclusive
`purpose of providing benefits and defraying reasonable expenses of administering the plan.
` ERISA § 404(a)(1)(B), 29 U.S.C. § 1104(a)(1)(B), requires fiduciaries to
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`discharge their duties with the care, skill, prudence, and diligence under the circumstances then
`prevailing that a prudent man acting in like capacity and familiar with such matters would use in
`the conduct of an enterprise of a like character and with like aims.
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`COMPLAINT
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`CASE NO.
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` ERISA § 404(a)(1)(D), 29 U.S.C. § 1104(a)(1)(D), requires fiduciaries to discharge their
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`duties in accordance with the documents and instruments governing the plan insofar as such documents
`and instruments are consistent with the provisions of ERISA.
` In committing the acts and omissions herein alleged, Defendant breached their fiduciary
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`duties in violation of ERISA §§ 404(a)(1)(A), (B) and (D), 29 U.S.C. §§ 1104(a)(1)(A)(B) and (D).
`Plaintiff is further informed and believes, and thereon alleges, that Defendant has failed
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`to disclose to plan participants their use of MCG “level of care guidelines” that are unfair and biased
`against approving claims for residential treatment such as are at issue herein, and that do not reflect
`reasonable standards in the medical community. The failure to disclose this information to the plan
`participants whom it adversely affects, constitutes a breach of fiduciary duties in violation of ERISA §§
`404(a)(1)(A) and (B), 29 U.S.C. §§ 1104(a)(1)(A) and (B).
`54. As a result of Defendant’s breaches of fiduciary duty, Plaintiff has been harmed, and the
`Defendant has been permitted to retain assets and generate earnings on those assets to which Defendant
`was not entitled.
` Wherefore, Plaintiff is entitled to appropriate equitable relief including but not limited to
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`injunction, disgorgement, surcharge, and injunctive relief related to the use of improper mental health
`level of care guidelines, in violation of California law.
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`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff prays that the Court grant the following relief:
`56. Declare that Defendant violated the terms of the Plan by failing to provide mental health
`benefits;
`57. Order Defendant to pay the mental health benefits due, together with prejudgment interest
`on each and every such benefit payment through the date of judgment at the rate of 9% compounded;
`For appropriate equitable relief pursuant to ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3),
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`including but not limited to a declaration of Plaintiff’s rights hereunder, an injunction against further
`failure to provide like benefits; disgorgement of any profits or ill-gotten gain realized by any Defendant;
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`COMPLAINT
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`CASE NO.
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`and surcharge for any pecuniary injuries Plaintiff has suffered as a consequence of Defendant’s breaches
`of their ERISA fiduciary duties;
`59. Award Plaintiff reasonable attorneys’ fees and costs of suit incurred herein pursuant to
`ERISA Section 502(g), 29 U.S.C. Section 1132(g);
`Provide such other relief as the Court deems equitable and just, including but not limited
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`to injunctive relief as set forth elsewhere in this Complaint.
`AS TO ALL CAUSES OF ACTION: For such other and further relief as the Court deems just and
`proper.
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`Dated: December 2, 2021
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`Respectfully submitted,
`DL LAW GROUP
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`By: /s/ David M. Lilienstein
`David M. Lilienstein
`Katie J. Spielman
`Attorneys for Plaintiff, BRIAN A.
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`___
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`COMPLAINT
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