Case 1:21-cv-04533 Document 1 Filed 08/11/21 Page 1 of 29 PageID #: 1
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` Plaintiff,
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`— against —
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
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`PEOPLE OF THE STATE OF NEW YORK, by
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`LETITIA JAMES, Attorney General
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`of the State of New York,
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`UNITED HEALTH GROUP
`INCORPORATED, UNITED BEHAVIORAL
`HEALTH (d/b/a OPTUMHEALTH
`BEHAVIORAL SOLUTIONS), UNITED
`HEALTHCARE INSURANCE COMPANY,
`OXFORD HEALTH INSURANCE, INC.,
`OXFORD HEALTH PLANS, LLC, OXFORD
`HEALTH PLANS (NY), INC., UNITED
`HEALTHCARE INSURANCE COMPANY OF
`NEW YORK, and UNITEDHEALTHCARE OF
`NEW YORK, INC.,
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`Defendants.
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`COMPLAINT
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`Civil Action No. 21-cv-4533
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`Plaintiff, the People of the State of New York, by its attorney, LETITIA JAMES, Attorney
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`General of the State of New York, alleges upon information and belief the following against
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`UnitedHealth Group, Incorporated (“UHG”), United Behavioral Health (“UBH”), United
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`Healthcare Insurance Company (“UHIC”), Oxford Health Insurance, Inc. (“OHI”), Oxford Health
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`Plans, LLC (“OHP”), Oxford Health Plans (NY), Inc. (“OHP-NY”), UnitedHealthcare Insurance
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`Company of New York (“UHIC-NY”), and UnitedHealthcare of New York, Inc. (“UHC-NY”)
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`(collectively, “Defendants”):
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`1
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`PRELIMINARY STATEMENT
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`For years, the nation’s largest health insurance company has – including during the
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`1.
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`coronavirus (“COVID-19”) pandemic – systematically and illegally limited consumers’ access to
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`potentially life-saving mental health and substance use disorder treatment. As the opioid epidemic,
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`the suicide epidemic, and the COVID-19 pandemic took a heavy human toll, United improperly
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`denied or reduced thousands of claims for these critical health services. This lawsuit seeks an end
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`to Defendants’ discriminatory practices and restitution for those who have suffered under them.
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`2.
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`Mental and emotional well-being is essential to overall health. Each year, one in
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`five New Yorkers has symptoms of a mental disorder, and one in ten adults and children in New
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`York experience mental health challenges serious enough to affect functioning in work, family
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`and school life. Mental illness is a major cause of death (via suicide), and a driver of school failure,
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`unstable employment, poor overall health, incarceration and homelessness. The National Institute
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`of Mental Health reports that mental health and substance use (together, “behavioral health”)
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`disorders are among the leading causes of disability in the United States.
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`3.
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`In recent years, the opioid epidemic has taken an increasingly deadly toll.
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`According to the Centers for Disease Control and Prevention (“CDC”), more than 3,600 New
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`Yorkers died from opioid overdoses in the twelve-month period ending in July 2020, a 22%
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`increase from 2018.
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`4.
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`The COVID-19 pandemic has further exacerbated the mental health and addiction
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`crises facing this country. In June 2020, a CDC survey found that 40% of American adults reported
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`at least one adverse behavioral health condition, including experiencing symptoms of mental
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`2
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`illness or substance abuse, related to the pandemic.1 The CDC reported that, like COVID-19, these
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`conditions were disproportionately affecting certain populations, including racial and ethnic
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`minorities. According to a Gallup survey released in December 2020, Americans’ assessment of
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`their mental health is “worse than it has been at any point in the last two decades.”2
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`5.
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`The mental health of young people has been particularly harmed by COVID-19. A
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`study published in Pediatrics in March 2021 reported a significantly higher rate of suicide ideation
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`among youth in March and July 2020 and higher rates of suicide attempts in February, March,
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`April, and July 2020, as compared with the same months in 2019.3
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`6.
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`Outpatient psychotherapy and counseling are an integral part of behavioral health
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`treatment for many individuals, and play a critical role in addressing these pervasive public health
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`issues. According to the Substance Abuse and Mental Health Services Administration
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`(“SAMHSA”), outpatient therapy and counseling is an evidence-based treatment for mental and
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`substance use disorders.4 Rigorous clinical research studies have shown that a variety of
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`psychotherapies are effective with children and adults, across diverse conditions.5 Numerous large-
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`scale trials and quantitative evidence reviews support the efficacy of cognitive-behavioral therapy
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`1 Centers for Disease Control, Mental Health, Substance Use, and Suicidal Ideation During the
`COVID-19 Pandemic — United States, Morbidity and Mortality Weekly Report June 24–30, 2020,
`69(32); 1049–1057, available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6932a1.htm.
`2 Brenan, M., Americans’ Mental Health Ratings Sink to New Low, December 7, 2020, available
`at https://news.gallup.com/poll/327311/americans-mental-health-ratings-sink-new-low.aspx.
`3 R. Hill, et al., Suicide Ideation and Attempts in a Pediatric Emergency Department Before and
`During COVID-19, Pediatrics, March 2021, 147 (3), available at
`https://pediatrics.aappublications.org/content/pediatrics/147/3/e2020029280.full.pdf.
`4 Substance Abuse and Mental Health Services Administration, Behavioral Health Treatments and
`Services, available at http://www.samhsa.gov/treatment.
`5 American Psychological Association, Recognition of Psychotherapy Effectiveness (2012),
`available at http://www.apa.org/about/policy/resolution-psychotherapy.aspx.
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`3
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`for alcohol and drug use disorders.6
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`7.
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`The majority of individuals who use outpatient mental health services receive
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`psychotherapy and/or mental health counseling.7 Psychotherapy and counseling services are most
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`commonly delivered by psychologists and master’s level clinicians, who comprise the majority of
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`the behavioral health workforce.8
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`8.
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`Because behavioral health treatment can be costly, many Americans depend on
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`health insurance coverage to access services. For decades, health insurance companies provided
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`little or no coverage for behavioral health treatment. Lack of access to behavioral health treatment,
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`which can be caused by health plans’ denials of coverage and other failures to properly administer
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`benefits, can have serious consequences for consumers, resulting in interrupted treatment, more
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`serious illness, and even death.
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`9.
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`To overcome this legacy of discrimination, many jurisdictions enacted mental
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`health and substance use disorder parity laws, in order to increase health insurance coverage and
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`to reduce the stigma preventing many people from seeking treatment for mental illness and
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`addiction.
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`10.
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`In 2006, New York led the country by enacting a landmark behavioral health parity
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`law known as “Timothy’s Law,” which, as originally codified in the New York Insurance Law,
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`required health plans to cover inpatient and outpatient mental health treatment in a manner at least
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`6 McHugh, R.K., Cognitive-Behavioral Therapy for Substance Use Disorders, 33 Psychiatr Clin
`North Am. 511 (2010), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2897895/.
`7 Germack et al., National Trends in Outpatient Mental Health Service Use Among Adults Between
`2008
`and
`2015,
`71
`Psychiatric
`Services 1127,
`1132
`(2020),
`available
`at
`https://pubmed.ncbi.nlm.nih.gov/32907475/.
`8 Substance Abuse and Mental Health Services Administration, Behavioral Health Workforce
`Report (2020), at 27, available at https://www.samhsa.gov/sites/default/files/saving-lives-mental-
`behavioral-health-needs.pdf.
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`4
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`equal to those plans’ coverage for physical health ailments. See 2006 N.Y. Sess. Laws Ch. 748.
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`11.
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`In 2008, Congress passed the Mental Health Parity and Addiction Equity Act
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`(“MHPAEA”), which prohibits covered group health plans from imposing treatment limitations
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`on mental health and substance use disorder benefits (“mental health benefits”) that are more
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`restrictive than the treatment limitations they apply to medical/surgical benefits. 42 U.S.C. §
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`300gg-26; 45 C.F.R. § 146.136(c). The essential health benefit regulations under the Affordable
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`Care Act extend MHPAEA’s requirements to small and individual health plans. 45 C.F.R. §
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`156.115(a)(3). New York has modified its behavioral health parity laws to mirror, and to exceed,
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`the requirements of MHPAEA. See, e.g., 2019 Sess. Laws Ch. 57.
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`12.
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`Defendants administer health benefits for hundreds of thousands of New Yorkers,
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`including many who struggle with mental health and addiction challenges. As a result of
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`Defendants’ violations, many members did not receive the behavioral health benefits to which they
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`were entitled under their United Plans.
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`13.
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`Defendants have violated their obligations under federal and New York parity laws
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`and have improperly discriminated against members in two significant ways. These violations
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`impair plan members’ ability to access outpatient psychotherapy and counseling services. Thus,
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`individuals who may be in the throes of a mental health or addiction crisis may not be able to
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`access treatment that could prevent their symptoms from worsening.
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`14.
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`The first violation is that Defendants engage in stricter utilization review for
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`outpatient behavioral health treatment as compared to outpatient medical/surgical health treatment.
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`Defendants’ outlier management program, known as Algorithms for Effective Reporting and
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`Treatment (“ALERT”), limits benefits for outpatient behavioral health benefits in a way that is
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`broader and more aggressive than the programs that Defendants have in place for analogous
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`5
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`medical/surgical benefits. For example, under the ALERT Program, after a member exceeds 20
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`psychotherapy or counseling treatment sessions within a six-month period, the member and her
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`provider must justify to Defendants why further treatment is medically necessary and thus eligible
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`for reimbursement.
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`15.
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`The second violation is that Defendants impose arbitrary penalties on members’
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`reimbursement on outpatient, out-of-network psychotherapy and counseling rendered by doctoral-
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`level psychologists and master’s level counselors, who provide the vast majority of these services.
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`Specifically, through this Discriminatory Reimbursement Penalty, Defendants artificially reduce
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`the “Allowed Amount” – the maximum amount of the provider’s bill deemed eligible for
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`reimbursement – for services provided by psychologists and master’s level counselors, by 25% to
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`35%.
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`16.
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`Defendants do not apply a comparable Reimbursement Penalty on members’
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`reimbursement of out-of-network medical/surgical
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`treatment. As a result, Defendants
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`systematically reimburse members for out-of-network behavioral health services in a more
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`restrictive manner than they reimburse for out-of-network medical/surgical services, in violation
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`of the parity laws.
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`17.
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`As a result of Defendants’ discriminatory policies, members of United Plans with
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`behavioral health conditions may not be able to access outpatient psychotherapy and counseling
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`at all. Even if they can access such treatment, often they must pay more for out-of-network
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`behavioral health care than if they had gone to see a physician for a basic physical health ailment.
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`18.
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`For example, pursuant to ALERT, United has denied coverage for tens of thousands
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`of psychotherapy sessions (including for New York fully insured members) since 2013, even
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`during the COVID-19 pandemic, and in December 2020, United’s ALERT staff imposed
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`6
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`modifications (typically reductions in the duration or frequently of treatment) in 69% of the cases
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`they handled, referring 13% of cases for peer review and extra scrutiny.
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`19.
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`Based on the foregoing and as set forth more fully below, pursuant to the New York
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`Insurance Law, MHPAEA, New York General Business Law § 349, and New York Executive
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`Law § 63(12), the People of the State of New York, by Letitia James, Attorney General of the
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`State of New York (“Plaintiff” or “the Attorney General”) brings this action against Defendants
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`for violations of behavioral health parity laws and other laws protecting the rights of consumers.
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`Plaintiff seeks injunctive relief, restitution, penalties and costs against Defendants.
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`JURISDICTION AND VENUE
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`20.
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`This action arises under the laws of the United States, including 42 U.S.C. § 300gg,
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`et seq. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. This Court may
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`exercise supplemental jurisdiction over the claims based on New York law pursuant to 28 U.S.C.
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`§ 1367.
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`21.
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`This Court has jurisdiction to issue the declaratory relief requested pursuant to the
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`Declaratory Relief Act, 28 U.S.C. §§ 2201, 2202. This Court may also grant injunctive relief
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`pursuant to Federal Rule of Civil Procedure 65.
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`22.
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`Venue is proper in the Eastern District of New York pursuant to 28 U.S.C. §
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`1391(b)(1) and (2), because some of the Defendants reside in, and during the relevant period, sold
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`and/or administered health plans in this District, and a substantial portion of the events described
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`herein occurred in this District.
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`PARTIES
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`23.
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`Plaintiff, the People of the State of New York, is represented by its chief legal
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`officer, Letitia James, Attorney General of the State of New York, who brings this action pursuant
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`7
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`to the authority granted to her under the federal Public Health Services Act (“PHSA”), which
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`authorizes States to enforce the provisions of MHPAEA. 42 U.S.C. § 300gg-22(a)(1).
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`24.
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`The Attorney General further brings this action pursuant to the authority granted to
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`her under New York Executive Law § 63(12), which authorizes her to seek injunctive relief,
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`restitution, and damages against any person that engages in repeated fraud or illegality in the
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`conduct of business, as well as New York General Business Law §§ 349(b) and 350-d, which
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`empower the Attorney General to seek injunctive relief, restitution, and civil penalties against any
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`person who engages in deceptive acts and practices in the conduct of business.
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`25. Where, as here, the interests and well-being of the People of the State of New York
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`as a whole are implicated, the Attorney General possesses parens patriae authority to commence
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`legal actions in federal court for violations of federal and state laws and regulations. The Attorney
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`General brings this action pursuant to this authority because the Defendants’ actions alleged herein
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`affect the state’s quintessential quasi-sovereign interest in the health of its residents. The
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`Defendants’ actions, dating back years, have prevented a substantial segment of New York’s
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`population from accessing behavioral health care, including treatment for substance abuse and
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`addiction, to which those residents are entitled by law. The Defendants’ actions have thereby
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`diminished the health of New Yorkers.
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`26.
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`Defendant UnitedHealth Group, Incorporated (“UHG”) is a publicly held
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`corporation headquartered in Minnetonka, Minnesota, and is the ultimate corporate parent of UBH.
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`UHG operates health insurance companies throughout the country through various direct and
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`indirect subsidiaries, including Defendants UHIC, OHP, OHP-NY and OHI. For all United Plans,
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`Defendant UHG and its subsidiaries control the policies and procedures applicable to the
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`processing of benefit claims and, in that capacity, developed and applied the ALERT Program and
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`8
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`the Discriminatory Reimbursement Penalty challenged herein. UHG, the nation’s largest health
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`insurer, had net earnings in 2020 of $15.8 billion, a 10% increase over the prior year.9
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`27.
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`Defendant United Behavioral Health (“UBH”), which operates under the brand
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`name OptumHealth Behavioral Solutions, is a corporation organized and existing under the laws
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`of California, with principal executive offices in San Francisco, California. UBH provides mental
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`health services to health plans, in particular members of UnitedHealthcare (“UHC”) plans offered
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`by subsidiaries of UHG (collectively “United Plans”), including managing access to providers of
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`mental health services and products for the members of these plans and designing benefits
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`packages for them.
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`28.
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`Defendant United Healthcare Insurance Company (“UHIC”), an indirect subsidiary
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`of UHG, is headquartered in Hartford, Connecticut and provides services to United Plans,
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`including claims processing and adjudication.
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`29.
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`Defendant Oxford Health Insurance, Inc. (“OHI”), a wholly owned subsidiary of
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`Defendant UHIC, is headquartered in New York, New York, and issues fully insured health plans
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`in New York State.
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`30.
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`Defendant Oxford Health Plans, LLC (“OHP”), an indirect subsidiary of UHG, is
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`headquartered in Shelton, Connecticut and provides services to United Plans, including developing
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`and overseeing administrative policies and claims processing and adjudication.
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`9 UnitedHealth Group Reports Fourth Quarter and Full Year 2020 Financial Results (Jan. 20,
`2021), available at
`https://www.unitedhealthgroup.com/viewer.html?file=/content/dam/UHG/PDF/investors/2020/U
`NH-Q4-2020-Release.pdf.
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`9
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`31.
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`Defendant Oxford Health Plans (NY), Inc. (“OHP-NY”), a subsidiary of Oxford
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`Health Plans, LLC, is headquartered in Shelton, Connecticut and provides claims administration
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`services to United Plans.
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`32.
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`Defendant UnitedHealthcare Insurance Company of New York (“UHIC-NY”), a
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`wholly owned subsidiary of Defendant UHIC, is headquartered in New York, New York, and
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`issues fully insured health plans in New York State.
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`33.
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`UnitedHealthcare of New York, Inc. (“UHC-NY”), an indirect subsidiary of UHG,
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`is headquartered in Islandia, New York, and issues fully insured health plans in New York State.
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`FACTUAL ALLEGATIONS
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`At all relevant times, and at least from 2012 until to present, Defendants have
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`34.
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`designed and managed benefits for, administered, and issued United Plans, including fully insured
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`plans for more than a million New Yorkers in total. These plans include behavioral health benefits.
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`A. Defendants’ Discriminatory Behavioral Health ALERT Program
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`35.
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`Defendants acknowledge that psychotherapy is effective. Nevertheless, Defendants
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`manage – and limit or deny – coverage for health care services through a utilization management
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`technique called outlier management, which is purportedly used to isolate high-use members or
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`high-cost episodes of care. For behavioral health services only, Defendants use a tool known as
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`ALERT, which includes more than 50 algorithms to identify what Defendants consider unusual
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`treatment patterns (e.g., high numbers of visits) or risk in behavioral health care. For
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`medical/surgical benefits, Defendants do not use ALERT, and there is no comparable treatment
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`limitation.
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`36.
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`At least nine of Defendants’ behavioral health ALERT algorithms have led to
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`denials of coverage and payment for outpatient services. At least four of these algorithms identify
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`outliers based solely on frequency of visits. For example, Defendants’ “high utilization” ALERT
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`algorithm is triggered after a member exceeds 20 psychotherapy visits within a six-month period.
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`One of Defendants’ senior executives responsible for implementing ALERT testified that there is
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`no clinical basis for such ALERT triggers, which were set in 2007, a year before MHPAEA was
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`enacted.
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`1. How Defendants’ Discriminatory ALERT Program Works
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`37. When a case triggers one of Defendants’ behavioral health ALERT algorithms (for
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`example, 20 psychotherapy visits within a six-month period), a care advocate employed by
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`Defendants reaches out to the member’s provider to discuss the case and treatment plan.
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`Defendants train their care advocates to apply Defendants’ company-devised criteria for
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`determining the medical necessity of treatment and to use scripts that require providers to justify
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`further psychotherapy or counseling.
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`38.
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`If the care advocate determines that the frequency and duration of care do not meet
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`Defendants’ criteria and the provider does not agree to limit the frequency or duration of the
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`member’s treatment, the care advocate refers the case to a peer Reviewer.
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`39.
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`The peer reviewer and the member’s provider discuss the case, and the provider is
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`asked to share additional information. The peer reviewer then makes a coverage decision
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`approving or denying further coverage, in which case United stops paying claims. Peer review
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`under ALERT is cursory, with reviewers spending a mere eight to twelve minutes in each
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`conversation with providers. During these brief conversations, Defendants’ peer reviewers require
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`providers to show a “clear and compelling” reason for the member to stay in treatment, and that
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`the member is making progress in treatment.
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`40.
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`In contrast to Defendants’ broad use of ALERT for outlier management of
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`behavioral health benefits, Defendants use outlier management – but not ALERT – for only a
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`handful of medical/surgical services, limited to some subset of physical therapy visits,
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`occupational therapy visits, and chiropractic therapy visits.
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`41.
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`Defendants do not apply outlier management to many other medical/surgical
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`services such as speech therapy and home health care. In fact, Defendants do not conduct any
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`outlier management for physical health services provided by medical doctors or others who bill
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`“evaluation and management” codes.
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`42.
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`Defendants acknowledge that they do not apply a comparable method of utilization
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`review to all outpatient medical/surgical services, and that they lack evidence that they selected
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`psychotherapy for outlier management using the same methodology that they apply to
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`medical/surgical services. United singles out all persons with behavioral health conditions who
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`need psychotherapy for undue scrutiny under its ALERT outlier management program, when this
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`treatment may involve multiple sessions over a period of time. In contrast, with very limited
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`exceptions, United does not apply outlier management to outpatient treatment of persons with
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`chronic medical/surgical conditions, even when such treatments may involve multiple sessions
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`over a period of time.
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`43.
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`Defendants have never analyzed whether all outpatient medical/surgical services
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`should be subject to outlier management in the same manner in which they apply outlier
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`management to outpatient behavioral health treatment. Defendants have never examined whether
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`outlier management is warranted for chronic physical health conditions such as diabetes,
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`hypertension, and asthma.
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`12
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`44.
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`Defendants use ALERT not to improve the behavioral health of members, but to
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`identify cases for termination of treatment. Defendants require care advocates handling ALERT
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`cases to meet quotas, including a reduction of care in 20% of the cases they are assigned, in the
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`form of either a modification of the provider’s treatment (i.e., less frequent treatment) or a referral
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`for peer review. The care advocates frequently exceed the 20% quotas, as shown by “ALERT
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`scorecards,” through which Defendants track compliance with imposed quotas on a daily and
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`monthly basis. care advocates’ bonuses are based on performance, as measured by their
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`productivity, including the number of cases they handle. For example, in May 2019, the vast
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`majority of Defendants’ care advocates met or exceeded their quota to refer 20% of ALERT cases
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`for peer review for potential denials. In fact, they referred two of every five cases.
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`45.
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`Defendants fail to disclose to members and providers that they designed ALERT,
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`as one of Defendants’ internal documents is entitled, for the “Relentless Pursuit of Cost Savings.”
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`Outpatient care accounts for 60% of behavioral health spending of United Plans, and the adoption
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`and use of behavioral health ALERT saves Defendants significant amounts of money. Defendants
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`have calculated precisely how many dollars their rationing of members’ behavioral health care
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`saves them: at least $330 per member, per ALERT intervention.
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`46.
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`Defendants, in violation of New York’s consumer protection laws, also fail to
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`provide members of non-ERISA United Plans with details about ALERT in plan documents or
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`explanations of benefits, including that the ALERT program is a form of utilization review and
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`can lead to denials of coverage for psychotherapy.
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`47.
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`Defendants mislead members about the purpose of ALERT by not affirmatively
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`disclosing that ALERT is a form of utilization review, and by not disclosing that the purpose of
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`ALERT is to identify cases for modification and/or termination.
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`2. The Impact of ALERT
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`In New York from 2013 through 2019, Defendants issued thousands of adverse
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`48.
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`benefit determinations for outpatient psychotherapy services based on their application of the
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`ALERT program, almost half of which were for members in fully insured plans. The human impact
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`of these denials is stark: in New York from 2013 through 2020, Defendants denied claims for more
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`than 34,000 psychotherapy sessions, with total billed charges of more than $8 million. Of these
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`denied psychotherapy sessions, more than 13,000 were for members in fully insured plans, with
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`total billed charges of more than $3.6 million. People who receive denials must choose between
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`paying hundreds or even thousands of dollars for continued care, and abruptly ending necessary
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`treatment.
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`49.
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`These denial numbers do not fully capture the damage done to New Yorkers by
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`Defendants’ ALERT system for rationing outpatient behavioral health coverage. As described
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`above, Defendants’ care advocates may suggest a lower frequency of treatment to outpatient
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`mental health providers, and if a provider agrees to such “modifications,” they are not counted as
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`denials.
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`50.
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`Some ALERT denials have resulted in United Plan members in New York needing
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`to be hospitalized, when further psychotherapy might have prevented such terrible outcomes. For
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`example, after Defendants limited coverage for a member’s psychotherapy pursuant to ALERT,
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`Defendants’ senior medical director wrote to other company executives: “It’s one thing to closely
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`manage high functioning patients in character building analytic therapy. But this woman was very
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`ill and, as predicted, is hospitalized at NYP at $2000/day.” Defendants have never checked whether
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`people for whom it denied coverage under ALERT became more ill.
`
`
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`14
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`Case 1:21-cv-04533 Document 1 Filed 08/11/21 Page 15 of 29 PageID #: 15
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`
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`51.
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`These numbers do not reflect all harms from ALERT. Members who receive an
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`ALERT denial may continue treatment but not submit claims, paying out of pocket, to their own
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`financial detriment. But many cannot afford to do so. According to SAMHSA, 60% of Americans
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`who do not receive necessary behavioral health treatment cite cost and health insurance issues as
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`the reason.10
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`52.
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`Through 2021, Defendants continued to employ ALERT protocols (including
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`scripts and workflows), placing burdens on members seeking coverage for behavioral health
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`treatment. Defendants sent letters to members and their providers stating that if they did not submit
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`clinical information, coverage may be denied. Defendants continued to track ALERT interventions
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`with the expectation that care advocates will meet thresholds, i.e., get providers to lessen
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`frequency/duration of treatment in at least 20% of cases and referrals at least 20% of cases to peer
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`review, which can lead to denials. In December 2020, as the nation suffered from the brunt of the
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`opioid epidemic, Defendants’ ALERT staff achieved modifications (typically reductions in the
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`duration or frequency of treatment) in 69% of the cases they handled, referring 13% of cases for
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`peer review.
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`53.
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`Shockingly, Defendants continued to deny claims for psychotherapy sessions
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`during the COVID-19 pandemic, issuing more than 3,300 ALERT claim denials for dates of
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`service in the first 6 months of 2020, with total billed charges of more than $600,000. More than
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`1,000 of these denials were for New Yorkers, with total billed charges of more than $250,000.
`
`
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`B. Defendants’ Discriminatory Reimbursement Penalty
`
`
`10 Substance Abuse and Mental Health Services Administration (SAMHSA), Receipt of Services
`for Behavioral health Problems: Results from the 2014 National Survey on Drug Use and
`Health, September 2015, available at http://www.samhsa.gov/data/sites/default/files/NSDUH-
`DR-FRR3-2014/NSDUH-DR-FRR3-2014/NSDUH-DR-FRR3-2014.htm.
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`
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`54.
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`Defendants also limit access to psychotherapy and counseling through their
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`arbitrary reductions of members’ reimbursements for out-of-network outpatient treatment.
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`55.
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`Defendants have networks of providers that have agreed to accept its set rates as
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`full payment, and not to seek additional reimbursement from United Plan members. However,
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`many consumers with health insurance, including United Plan members, must turn to out-of-
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`network providers due to the inadequacy of these provider networks.11 A peer-reviewed study
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`published in JAMA Network Open in 2019 showed that higher cost-sharing among those with
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`behavioral health conditions may be indicative of limited in-network availability for behavioral
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`health care.12
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`56. When members of United Plans visit out-of-network providers, they generally incur
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`out-of-pocket costs and they may request reimbursements from United Plans, subject to terms and
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`reimbursement rate limits established by Defendants.
`
`1. How Defendants’ Discriminatory Reimbursement Penalty Works
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`To set reimbursement rate limits for medical/surgical and behavioral health out-of-
`
`57.
`
`network services, Defendants begin with a third-party benchmark rate set by Medicare or an
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`independent vendor. One such vendor, FAIR Health, operates a publicly available database,
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`https://www.fairhealth.org/, which includes rates based on the nation’s largest repository of private
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`claims data. The rates contained in FAIR Health’s database are used by health plans, including
`
`
`11 S. Busch, Incorrect Provider Directories Associated with Out-of-Network Mental Health Care
`and Outpatient Surprise Bills, 39 Health Affairs 975 (2020), available at
`https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.2019.01501.
`12 W. Xu, Cost-Sharing Disparities for Out-of-Network Care for Adults with Behavioral Health
`Conditions, 2 JAMA Netw Open. 2019 (11) (2019), available at
`https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2753980.
`
`
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`
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`United Plans, to determine the “usual, customary, and reasonable” (“UCR”) rates for many health
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`care services.
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`58.
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`FAIR Health is an independent company that was established in October 2009, after
`