Case 1:21-cv-04519-LDH-RLM Document 1 Filed 08/11/21 Page 1 of 18 PageID #: 1
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
`------------------------------------------------------------
`MARTIN J. WALSH, Secretary of Labor,
`United States Department of Labor,
`
`
`Plaintiff,
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`
`
`v.
`
`
`UNITED BEHAVIORAL HEALTH and
`UNITEDHEALTHCARE INSURANCE
`COMPANY,
`
`
`Defendants.
`------------------------------------------------------------
`
`
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`PRELIMINARY STATEMENT
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`Plaintiff, Martin J. Walsh, Secretary of Labor, United States Department of Labor (the
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`“Secretary”), alleges as follows:
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`1.
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`The Secretary brings this action to enjoin and remedy violations of the Employee
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`Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq. (“ERISA”).
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`Defendants United Behavioral Health (“UBH”) and UnitedHealthcare Insurance Company
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`(“UHIC”) administer employee health plans under ERISA’s jurisdiction.
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`2.
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`The Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”),
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`incorporated as ERISA § 712, 29 U.S.C. § 1185a, prohibits ERISA-covered health plans from
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`imposing treatment limitations on mental health and substance use disorder benefits (“mental
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`health benefits”) that are more restrictive than the treatment limitations they impose on medical
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`and surgical (also called “medical/surgical”) benefits. This action primarily concerns two separate
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`practices by UBH and UHIC (collectively, “United”) that violated MHPAEA.
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`3.
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`First, United set policies and procedures and adjudicated claims for benefits in such
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`a way that they caused the ERISA-covered health plans they administered to systematically
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`
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`COMPLAINT FOR
`ERISA VIOLATIONS
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`Civil Action No. 21-cv-4519
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`reimburse participants and beneficiaries for out-of-network mental health services in a more
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`restrictive manner than United reimbursed them for out-of-network medical and surgical services.
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`4.
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`Second, United imposed a concurrent review program to limit benefits for
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`outpatient mental health benefits in a way that was broader and more aggressive than the programs
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`in place for analogous medical and surgical benefits.
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`5.
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`In doing so, United violated MHPAEA and also breached its fiduciary duties of
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`loyalty and prudence, as well as its fiduciary duty to administer the plans in accordance with their
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`terms only insofar as those terms are consistent with ERISA. ERISA §§ 404(a)(1)(A), (B), & (D),
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`29 U.S.C. §§ 1104(a)(1)(A), (B), & (D).
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`6.
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`As a result of United’s violations, many participants and beneficiaries did not
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`receive the mental health benefits to which they were entitled under their ERISA-covered health
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`plans.
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`7.
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`Accordingly, the Secretary brings the following claims for relief under ERISA
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`§§ 502(a)(2) and (a)(5), 29 U.S.C. §§ 1132(a)(2) & (a)(5).
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`JURISDICTION AND VENUE
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`8.
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`This Court has subject matter jurisdiction over this action pursuant to ERISA
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`§ 502(e)(1), 29 U.S.C. § 1132(e)(1), and general federal question jurisdiction, 28 U.S.C. § 1331.
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`9.
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`Venue with respect to this action lies in the United States District Court for the
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`Eastern District of New York, pursuant to ERISA § 502(e)(2), 29 U.S.C. § 1132(e)(2), because,
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`during the relevant period, United administered ERISA-covered health plans within this District,
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`and many of the breaches described herein took place in this District.
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`PARTIES
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`10.
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`Plaintiff the Secretary is vested with authority under ERISA §§ 502(a)(2) and (5),
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`29 U.S.C. § 1132(a)(2) & (5), to enforce Title I of ERISA by, among other things, filing and
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`prosecuting claims against fiduciaries who breach their duties under Title I of ERISA.
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`11.
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`Defendant UBH provides mental health services to ERISA-covered health plans
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`(“Client Plans”), including managing access to providers of mental health services and products
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`for the participants and beneficiaries of these plans and designing benefits packages for them.
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`12.
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`The Client Plans, which are not parties to this lawsuit, were welfare plans
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`established by employers to provide health benefits to their employees pursuant to ERISA § 3(1),
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`29 U.S.C. § 1002(1).
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`13.
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`At times relevant to this action, UBH was a fiduciary to Client Plans under ERISA
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`§ 3(21)(a)(iii), 29 U.S.C. § 1002(21)(a)(iii), because, in implementing a reimbursement reduction
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`on behalf of ERISA-covered plans and causing those plans to reduce the amounts paid to
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`participants and beneficiaries on claims, it exercised discretionary authority or discretionary
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`responsibility in the administration of the ERISA-covered plans for which it managed mental
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`health benefits.
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`14.
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`At times relevant to this action, UBH was also a fiduciary to Client Plans under
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`ERISA § 3(21)(a)(iii), 29 U.S.C. § 1002(21)(a)(iii), because, in implementing an outlier
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`management program that caused ERISA-covered plans to deny claims for mental health benefits,
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`UBH exercised discretionary authority or discretionary responsibility in the administration of the
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`ERISA-covered plans for which it managed mental health benefits.
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`15.
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`Defendant UHIC provides services to Client Plans, including claims processing and
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`adjudication.
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`16.
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`At times relevant to this action, UHIC was a named fiduciary to Client Plans under
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`ERISA § 402(a)(1), 29 U.S.C. § 1102(a)(1), by the terms of the Client Plans’ documents.
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`17.
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`At times relevant to this action, UHIC was also a functional fiduciary to Client
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`Plans under ERISA § 3(21)(a)(iii), 29 U.S.C. § 1002(21)(a)(iii), because, as explained in Client
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`Plans’ plan documents, UHIC had exclusive authority and sole and absolute discretion to interpret
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`and to apply the rules of Client Plan and determine claims for Plan benefits and because, in
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`processing claims for mental health benefits for the Client Plans, UHIC exercised discretionary
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`authority or discretionary responsibility in the administration of the Client Plans.
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`18.
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`UBH and UHIC are both subsidiaries of United Healthcare Group Incorporated
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`(“UHG”), which is not a party to this lawsuit.
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`GENERAL ALLEGATIONS
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`19.
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`At all relevant times, and since at least from 2013 until to present, UBH has
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`designed and managed mental health benefits for Client Plans.
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`20.
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`For the fully-insured Client Plans -- that is, those Plans for which United and its
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`affiliates are responsible for paying claims -- UBH is responsible for and executes plan design and
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`management of mental health benefits.
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`21.
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`For self-funded Client Plans -- that is, those Plans that, themselves, pay claims --
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`UBH made recommendations and Client Plans accepted UBH’s recommendations respecting plan
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`design and management.
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`22.
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`For self-funded Client Plans, UBH also reviewed and monitored claims data to
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`track Plans’ compliance with MHPAEA.
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`23.
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` At all relevant times, and since at least 2013 to present, UHIC has served as claims
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`administrator for Client Plans serviced by UBH.
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`24.
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`UHIC has exclusive authority and sole discretion to interpret and apply the rules of
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`Client Plans and to adjudicate claims for mental health benefits.
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`25.
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`UHIC relies on the policies set by UBH to adjudicate claims for mental health
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`benefits on behalf of Client Plans.
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`26.
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`For fully-insured Client Plans, UHIC was responsible for paying claims. Therefore,
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`United and UHG were adversely impacted by higher claims payments.
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`27.
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`For self-funded Client Plans, United and UHG marketed their fee-based services
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`based on projected costs. Because higher claims payments were less attractive to plan sponsors,
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`United and UHG’s ability to attract and retain business was adversely impacted by higher claims
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`payments.
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`Out-of-Network Reimbursement Rate Reduction
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`ERISA VIOLATIONS
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`28.
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`UBH and United Healthcare (“UHC”) -- UBH’s counterpart for medical/surgical
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`benefits, also a subsidiary of UHG, and, like UHG, not a party to this lawsuit -- have established
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`networks of providers that have agreed to accept their set rates as full payment for treatment and
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`services, and not to seek additional reimbursement from participants and beneficiaries of Client
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`Plans.
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`29. When participants and beneficiaries of Client Plans visit out-of-network providers,
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`they generally incur out-of-pocket costs and they may demand reimbursements from the Client
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`Plans, subject to terms and rate limits established by UBH and UHC.
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`30.
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`To set these limits for mental health treatments, UBH started with a third party rate
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`set by Medicare or by an independent vendor such as Fair Health or Viant.
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`31.
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`UHC used similar methodologies
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`to set baseline medical and surgical
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`reimbursement rates.
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`32.
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`However, UBH and UHC differed in the reductions that they applied to mental
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`health reimbursement rates as opposed to medical and surgical rates.
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`33.
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`Across the board, UBH reduced reimbursement rates for psychologists by 25% and
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`for master’s level counselors by 35% as compared to the reimbursement rates UBH set for
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`physicians providing the same mental health services.
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`34.
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`By contrast, for medical and surgical providers, UHC reduced reimbursement rates
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`for licensure in only limited circumstances, such as assistant surgeon services.
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`35.
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`Client Plans adopted UBH’s and UHC’s rates, including the reimbursement rate
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`reduction policy.
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`36.
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`UHIC subsequently used these rates to process out-of-network claims by
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`participants and beneficiaries of these Client Plans.
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`37.
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`Thus, if a participant in a Client Plan saw an out-of-network non-physician provider
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`for mental health treatment, the amount that they could get back from that Client Plan would be
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`systemically reduced by United compared to if that participant instead saw a physician provider
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`for the same services.
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`38.
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`By contrast, if a participant in a Client Plan saw a non-physician provider for
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`medical/surgical treatment, the amount that they would get back from the Client Plan would
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`generally not be reduced by United or UHC as compared to physician providers.
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`39.
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`For example, if a participant in a Client Plan visited an out-of-network psychologist
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`on this District for a 45-minute psychotherapy session, UBH may have set the baseline
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`reimbursement rate for that service based on the Medicare rate of $106.02. However, UBH would
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`have then reduced the reimbursement rate by 25%, to $79.51, because the provider was a
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`psychologist and not a psychiatrist.
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`40.
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`Thus, if the psychologist billed $110.00 for the service, the participant would be
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`obligated to pay the difference, $30.49, out-of-pocket. On the other hand, if the participant had
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`gone to a psychiatrist and been charged the same amount for the same services, the participant
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`would have been entitled to $106.02 and would have been obligated to pay only $3.98 out-of-
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`pocket.
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`41.
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`United and UHC did not choose to apply the reductions based on any consistent,
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`articulable factors, and so they were not comparable.
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`42.
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`Until 2016, this reimbursement reduction practice was hidden from participants and
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`beneficiaries. Client Plan documents described the reimbursement of providers as being at “70%
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`of the [reasonable and customary] charge” or at “70% of the [c]overed [e]xpense,” while making
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`no mention of reimbursement rate reductions.
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`43.
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`United subsequently amended the Client Plan documents to disclose the
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`reimbursement rate reduction policy.
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`44.
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`Through such use of the reimbursement rate reduction policy, United decreased the
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`mental health benefits that Client Plans paid, which had the effect, directly or indirectly, of
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`monetarily benefitting United and Client Plans at the expense of participants and beneficiaries.
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`Concurrent Review
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`45.
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`Another of the services that UBH performed for Client Plans was outlier
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`management, a sort of concurrent review used to flag unusually high-use participants and
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`beneficiaries, as well as high-cost practices, for additional scrutiny.
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`46.
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`One tool that UBH used for outlier management was “ALERT,” which used over
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`50 proprietary algorithms to identify what UBH considered unusual treatment patterns (e.g., high
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`numbers of visits) in mental health care and, in many cases, to deny further coverage.
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`47.
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`For example, nine of the algorithms used by UBH as part of the ALERT outlier
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`management program could lead to denials of outpatient services.
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`48.
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`49.
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`ALERT’s outlier management was applied to all psychotherapy visits.
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`Four of the algorithms used by UBH as part of the ALERT outlier management
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`program identified outliers based solely on frequency of visits.
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`50.
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`For example, the UBH “high utilization” ALERT algorithms were triggered after
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`21 mental health visits by a participant or beneficiary in a six-month period.
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`51. When a case triggered one of these ALERT algorithms, this resulted in outreach by
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`a “UBH Care Advocate,” a licensed behavioral health professional.
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`52.
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`The UBH Care Advocate would reach out to the provider to discuss the case and
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`treatment plan.
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`53. Where the UBH Care Advocate determined that the level of care and intensity did
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`not meet medical necessity guidelines, and the UBH Care Advocate and the provider did not agree
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`on an adjustment to the participant or beneficiary’s treatment plan, the UBH Care Advocate
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`referred the case to a doctoral-level “UBH Peer Reviewer.”
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`54. When referred, the UBH Peer Reviewer would discuss the case with the provider
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`and often ask the provider for additional information.
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`55.
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`Using this information, the participant or beneficiary’s records, and UBH’s medical
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`necessity guidelines, the UBH Peer Reviewer then made a coverage decision, which could lead to
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`an adverse benefit decision, in which case UBH would cause the Client Plan to stop providing
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`benefits.
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`56.
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`In contrast to UBH’s broad application of ALERT to all outpatient mental health
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`benefits, UHC used outlier management for a very select set of medical and surgical services.
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`These were limited to some subset of therapy visits that included physical therapy visits,
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`occupational therapy visits, and chiropractic therapy visits.
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`57.
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`However, UHC did not apply outlier management to many other recurring medical
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`and surgical services, such as speech therapy and home health care.
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`58.
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`United and UHC did not apply outlier management based on consistent factors.
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`Specifically, United used non-comparable data sets in applying outlier management to mental
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`health benefits from those that United and UHC used in applying outlier management to medical
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`and surgical benefits.
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`59.
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`Through such use of outlier management, United decreased the mental health
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`benefits that Client Plans paid, which had the effect, directly or indirectly, of monetarily benefitting
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`United and Client Plans at the expense of participants and beneficiaries.
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`Deficient Disclosures
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`60.
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`UBH prepared a single document entitled “Mental Health Parity and Addiction
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`Equity Act Non Quantitative Treatment Limitations - Answers to Key Questions” (the “NQTL
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`Summary Document”), which purported to be an accurate and “user-friendly” disclosure about
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`their nonquantitative treatment limitations -- that is, limits on benefits that are not expressed
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`numerically.
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`61.
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`Throughout the relevant period, UBH made the NQTL Summary Document
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`available to Client Plans for participants and beneficiaries who requested information on United’s
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`NQTLs.
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`62.
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`However, the NQTL Summary Document did not provide details on reimbursement
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`rate reduction or the use of outlier management, including ALERT. It also did not provide
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`sufficient disclosure to participants who request individualized information about how an NQTL
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`was applied to their benefits.
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`63.
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`Throughout the relevant period, United did not provide details on the
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`reimbursement rate reduction or the ALERT outlier management program to participants and
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`beneficiaries in Client Plans through any other means.
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`Knowing Participation in the Client Plans’ Violations
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`64.
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`Throughout the relevant period, United knew that the Client Plans adopted United’s
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`model plan documents and recommendations, which included United’s reimbursement rate
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`reduction and outlier management program.
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`65.
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`For fully-insured Client Plans, UBH designed all benefits, and the Client Plans did
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`not have the opportunity to customize.
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`66.
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`For self-funded Client Plans, UBH recommended the structure of benefits, and the
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`Client Plans, which looked to UBH as the expert, adopted those recommendations.
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`67.
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`UBH also specifically monitored self-funded Client Plan compliance by having
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`each Client Plan complete an “NQTL Tool.”
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`68.
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`UHIC adjudicated claims for the Client Plans, implementing the reimbursement
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`rate reduction and outlier management program.
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`69.
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`United did not provide sufficient information to Client Plan fiduciaries for them to
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`explain to their participants and beneficiaries the reimbursement rate reduction and outlier
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`management program, including their application to deny claims.
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`FIRST CLAIM FOR RELIEF
`(For Violating MHPAEA in Connection with Reimbursement Rate Reduction)
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`Pursuant to Rule 10(c) of the Federal Rules of Civil Procedure, the Secretary hereby
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`70.
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`incorporates the allegations of all prior paragraphs.
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`71. MHPAEA “requires parity between mental health or substance use disorder
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`benefits and medical/surgical benefits with respect to . . . treatment limitations under group health
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`plans.” Final Rules Under the Paul Wellstone and Pete Domenici Mental Health Parity and
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`Addiction Equity Act of 2008, 78 Fed. Reg. 68240 (Nov. 13, 2013).
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`72. When a plan provides medical/surgical benefits and mental health benefits, the
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`fiduciaries must ensure that “treatment limitations” applicable to those mental health benefits “are
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`no more restrictive than the predominant treatment limitations applied to substantially all medical
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`and surgical benefits covered by
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`the plan.” ERISA § 712(a)(3)(A)(ii), 29 U.S.C.
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`§ 1185a(a)(3)(A)(ii).
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`73.
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`“Treatment limitations” include limits on benefits based on the frequency of
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`treatment, number of visits, days of coverage, days in a waiting period, or other similar limits on
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`the scope or duration of treatment. 29 C.F.R. § 2590.712(a). Treatment limitations include both
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`“quantitative treatment limitations” (“QTLs”), which are expressed numerically (such as 50
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`outpatient visits per year), and “nonquantitative treatment limitations” (NQTLs), which otherwise
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`limit the scope or duration of benefits for treatment under a plan or coverage. 29 C.F.R.
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`§ 2590.712(a).
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`74.
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`Fiduciaries must not impose an NQTL with respect to mental health benefits “in
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`any classification unless, under the terms of the plan . . . as written and in operation, any processes,
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`strategies, evidentiary standards, or other factors used in applying the [NQTL] to [mental health]
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`benefits in the classification are comparable to, and are applied no more stringently than, the
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`processes, strategies, evidentiary standards, or other factors used in applying the limitation with
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`respect to medical/surgical benefits in the classification.” 29 C.F.R. § 2590.712(c)(4)(i).
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`75. At times relevant to this action, Client Plans simultaneously offered both
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`medical/surgical benefits and mental health benefits.
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`76.
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`By systematically reducing reimbursement rates for mental health benefits for out-
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`of-network non-physician providers compared to physicians, UBH’s reimbursement rate
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`reduction policy was an NQTL. 29 C.F.R. § 2590.712(c)(4)(ii)(D).
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`77. UBH designed the reimbursement rate reduction to apply routinely and broadly to
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`outpatient, out-of-network mental health treatments, but United and UHC did not apply
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`reductions comparably to outpatient, out-of-network medical/surgical benefits.
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`78.
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`United applied reductions to medical/surgical benefits only rarely, such as non-
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`physicians performing assistant surgeon services, which did not constitute substantially all
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`medical/surgical benefits provided under the Client Plans.
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`79.
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`The factors used by United in applying the rate reductions for outpatient, out-of-
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`network mental health benefits were not comparable to as the factors that United and UHC used
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`in applying any rate reductions assessed for outpatient, out-of-network medical/surgical benefits.
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`80. Accordingly, the scope of the reimbursement rate reduction created and
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`implemented by United did not comply with the parity protections of ERISA § 712 (a)(3)(A)(ii),
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`29 U.S.C. § 1185a(a)(3)(A)(ii), and 29 C.F.R. § 2590.712(c)(4)(i).
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`81.
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`Through the conduct described above, United has:
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`a.
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`Violated the parity protections contained in ERISA § 712(a)(3)(A)(ii), 29
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`U.S.C. § 1185a(a)(3)(A)(ii), and 29 C.F.R. § 2590.712(c)(4)(i); and
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`b.
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`Caused harm to participants and beneficiaries for which they are entitled
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`to relief pursuant to ERISA § 502(a)(5).
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`SECOND CLAIM FOR RELIEF
`(For Violating ERISA’s Fiduciary Standards in Connection with Reimbursement Rate
`Reduction)
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`Pursuant to Rule 10(c) of the Federal Rules of Civil Procedure, the Secretary hereby
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`82.
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`incorporates the allegations of all prior paragraphs.
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`83.
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`Through the conduct described above, United has:
`
`a.
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`Violated the fiduciary standard of care provisions of ERISA
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`§§ 404(a)(1)(A), (B), and (D) , 29 U.S.C. §§ 1104(a)(1)(A), (B), & (D); and
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`b.
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`Caused harm to participants and beneficiaries for which they are entitled
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`to relief pursuant to ERISA §§ 409, 502(a)(2), and 502(a)(5), 29 U.S.C. §§ 1109,
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`1132(a)(2), & 1132(a)(5).
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`THIRD CLAIM FOR RELIEF
`(Violation of MHPAEA in Connection with Concurrent Review Program)
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`84.
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`Pursuant to Rule 10(c) of the Federal Rules of Civil Procedure, the Secretary hereby
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`incorporates the allegations of all prior paragraphs.
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`85. As a concurrent review program that could result in adverse benefit
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`determinations, ALERT was an NQTL. 29 C.F.R. § 2590.712(c)(4)(ii)(A).
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`86. United applied ALERT’s outlier management broadly across outpatient mental
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`health services.
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`87. United applied outlier management only
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`to certain
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`limited outpatient
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`medical/surgical services, specifically some combination of physical therapy visits, occupational
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`therapy visits, and chiropractic therapy visits, which did not constitute substantially all outpatient
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`medical/surgical benefits provided under the Client Plans.
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`88.
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`United did not apply outlier management to many outpatient medical and surgical
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`services, such as speech therapy and home health care.
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`89.
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`The factors used by United in applying outlier management to mental health
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`benefits were not the same as those factors that United and UHC used in applying outlier
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`management for outpatient medical and surgical benefits.
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`90. Accordingly, the scope of ALERT did not comply with the parity protections of
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`ERISA § 712(a)(3)(A)(ii), 29 U.S.C. § 1185a(a)(3)(A)(ii), and 29 C.F.R. § 2590.712(c)(4)(i).
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`91.
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`Through the conduct described above, the Plan, United has:
`
`a.
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`Violated the parity protections contained in ERISA § 712(a)(3)(A)(ii), 29
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`U.S.C. 1185a(a)(3)(A)(ii), and 29 C.F.R. § 2590.712(c)(4)(i); and
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`b.
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`Caused harm to participants and beneficiaries for which they are entitled
`
`to relief pursuant to ERISA § 502(a)(5), 29 U.S.C. § 1132(a)(5).
`
`FOURTH CLAIM FOR RELIEF
`(Violation of ERISA’s Fiduciary Standards in Connection with Concurrent Review
`Program)
`
`92.
`
`Pursuant to Rule 10(c) of the Federal Rules of Civil Procedure, the Secretary hereby
`
`incorporates the allegations of all prior paragraphs.
`
`93.
`
`Through the conduct described above, United has:
`
`a.
`
`Violated the fiduciary standard of care provisions of ERISA
`
`§§ 404(a)(1)(A), (B), and (D), 29 U.S.C. §§ 1104(a)(1)(A), (B), & (D); and
`
`14
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`Case 1:21-cv-04519-LDH-RLM Document 1 Filed 08/11/21 Page 15 of 18 PageID #: 15
`
`b.
`
`Caused harm to participants and beneficiaries for which they are entitled
`
`to relief pursuant to ERISA §§ 409, 502(a)(2), and 502(a)(5), 29 U.S.C. §§ 1109,
`
`1132(a)(2), & 1132(a)(5).
`
`FIFTH CLAIM FOR RELIEF
`(Violations of ERISA’s Disclosure Provisions)
`
`94.
`
`Pursuant to Rule 10(c) of the Federal Rules of Civil Procedure, the Secretary hereby
`
`incorporates the allegations of all prior paragraphs.
`
`95.
`
`UBH provided the NQTL Summary Document, which did not provide details on
`
`reimbursement rate reduction or ALERT, to Client Plans.
`
`96.
`
`United did not provide details on reimbursement rate reduction or ALERT to
`
`participants and beneficiaries in Client Plans through other means.
`
`97.
`
`Through the conduct described above, United has:
`
`a.
`
`Violated the disclosure requirements of ERISA §§ 104(b), 503, and
`
`712(a)(4), 29 U.S.C. § 1024(b), 1133, & 1185a(a)(4); and
`
`b.
`
`Caused harm to participants and beneficiaries for which they are entitled
`
`to relief pursuant to ERISA §§ 409, 502(a)(2), and 502(a)(5), 29 U.S.C. §§ 1109,
`
`1132(a)(2), & 1132(a)(5).
`
`SIXTH CLAIM FOR RELIEF
`(Violation of ERISA’s Fiduciary Provisions in Connection with Disclosure Violations)
`
`98.
`
`Pursuant to Rule 10(c) of the Federal Rules of Civil Procedure, the Secretary hereby
`
`incorporates the allegations of all prior paragraphs.
`
`99.
`
`Through the conduct described above, United has:
`
`a.
`
`Violated the fiduciary standard of care provisions of ERISA
`
`§§ 404(a)(1)(B) and (D), 29 U.S.C. § 1104(a)(1)(B), (D); and
`
`15
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`

`

`Case 1:21-cv-04519-LDH-RLM Document 1 Filed 08/11/21 Page 16 of 18 PageID #: 16
`
`b.
`
`Caused harm to participants and beneficiaries for which they are entitled
`
`to relief pursuant to ERISA §§ 409, 502(a)(2), and 502(a)(5), 29 U.S.C. §§ 1109,
`
`1132(a)(2), & 1132(a)(5).
`
`SEVENTH CLAIM FOR RELIEF
`(Knowing Participation in Client Plans’ Violations)
`
`100. Pursuant to Rule 10(c) of the Federal Rules of Civil Procedure, the Secretary hereby
`
`incorporates the allegations of all prior paragraphs.
`
`101. By taking these actions, United knew or should have known that its Client Plans
`
`and their fiduciaries were violating ERISA, including MHPAEA and the claims regulations, 29
`
`C.F.R. § 2560.503-1, et seq.
`
`102. As a result of the conduct as described above, United knowingly participated in
`
`violations of ERISA, including MHPAEA and the claims regulations, in violation of ERISA
`
`§ 502(a)(5), 29 U.S.C. § 1132(a)(5).
`
`PRAYER FOR RELIEF
`
`WHEREFORE, cause having been shown, the Secretary prays this Court enter an Order,
`
`pursuant to ERISA §§ 409(a), 502(a)(3), and 502(a)(5), 29 U.S.C. §§ 1109, 1132(a)(2), &
`
`1132(a)(5):
`
`1.
`
`Directing United to re-adjudicate the claims of participants and beneficiaries
`
`subjected to the reimbursement rate reduction policy and the ALERT outlier management program
`
`in accordance with ERISA, and ordering any approved claims fully paid, and assessing against
`
`United the costs of re-adjudication;
`
`2.
`
`As an alternative to the relief sought in (1), directing United to be surcharged or
`
`ordered to pay mental health benefits that were illegally denied or reduced pursuant to the
`
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`Case 1:21-cv-04519-LDH-RLM Document 1 Filed 08/11/21 Page 17 of 18 PageID #: 17
`
`reimbursement rate reduction policy or the ALERT outlier management program to participants
`
`and beneficiaries;
`
`3.
`
`Appointing an independent fiduciary to administer the relief granted to participants
`
`and beneficiaries, and requiring United to provide all necessary claims and participant information
`
`to that independent fiduciary for that purpose;
`
`4.
`
`Ordering United to ensure the reformation of all Client Plan provisions that violate
`
`ERISA;
`
`5.
`
`6.
`
`
`
`Granting pre-judgment interest and lost opportunity costs; and
`
`Granting such other relief as the Court may deem equitable, just, and proper.
`
`17
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`Case 1:21-cv-04519-LDH-RLM Document 1 Filed 08/11/21 Page 18 of 18 PageID #: 18
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`
`
`
`
`
`SEEMA NANDA
`Solicitor of Labor
`
`JEFFREY S. ROGOFF
`Regional Solicitor
`
`
`
`/s/
`
`ROSEMARY ALMONTE
`Trial Attorney
`
`SUZANNE DEMITRIO CAMPBELL
`Senior Trial Attorney
`
`U.S. Department of Labor
`Office of the Regional Solicitor
`201 Varick Street, Room 983
`New York, NY 10014
`(646) 264-3650
`(646) 264-3660 (fax)
`almonte.rosemary@dol.gov
`campbell.suzanne@dol.gov
`NY-SOL-ECF@dol.gov
`
`Attorneys for Plaintiff
`Secretary of Labor
`
`DATED:
`
`August 11, 2021
`New York, New York
`
`18
`
`