Case 1:21-cv-00172-DBP Document 2 Filed 12/30/21 PageID.2 Page 1 of 15
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`Brian S. King, #4610
`Brent J. Newton, #6950
`Samuel M. Hall, #16066
`BRIAN S. KING, P.C.
`420 East South Temple, Suite 420
`Salt Lake City, UT 84111
`Telephone: (801) 532-1739
`Facsimile: (801) 532-1936
`brian@briansking.com
`brent@briansking.com
`samuel@briansking.com
`
`Attorneys for Plaintiffs
`
`THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH, CENTRAL DIVISION
`
`COMPLAINT
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`Case No. 1:21-cv-00172-DBP
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`R.J. and T.H., individually and on behalf of
`L.S. a minor,
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`Plaintiffs,
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`vs.
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`OPTIMA HEALTH
`
`Defendant.
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`Plaintiffs R.J. and T.H., individually and on behalf of L.S. a minor, through their
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`undersigned counsel, complain and allege against Defendant Optima Health (“Optima”) as
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`follows:
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`PARTIES, JURISDICTION AND VENUE
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`1. R.J., T.H., and L.S. are natural persons residing in Chesapeake, Virginia. R.J. is L.S.’s
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`mother and T.H. is R.J.’s domestic partner.
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`1
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`2. Optima is an insurance company headquartered in Virginia Beach, Virginia and was the
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`insurer and claims administrator, as well as the fiduciary, for the insurance plan providing
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`coverage for the Plaintiffs (“the Plan”) during the treatment at issue in this case.
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`3. The Plan is a fully-insured welfare benefits plan. R.J. and T.H. were participants in the
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`Plan and L.S. was a beneficiary of the Plan at all relevant times. R.J. was the plan
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`participant until July 1, 2020, under an individual healthcare.gov plan. Following that
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`date, Plaintiffs obtained coverage through T.H.’s employer and he became the plan
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`participant. Optima was the insurer responsible for plan administration at all relevant
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`times.
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`4. L.S. received medical care and treatment at Triumph Youth Services (“Triumph”) from
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`January 2, 2020, to September 17, 2020. Triumph is a licensed residential treatment
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`facility located in Box Elder County Utah, which provides sub-acute inpatient treatment
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`to adolescents with mental health, behavioral, and/or substance abuse problems.
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`5. Optima, denied claims for payment of L.S.’s medical expenses in connection with his
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`treatment at Triumph.
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`6. This Court has jurisdiction over this case under 29 U.S.C. §1132(e)(1) and 28 U.S.C.
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`§1331.
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`7. Venue is appropriate under 29 U.S.C. §1132(e)(2) and 28 U.S.C. §1391(c) based on
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`ERISA’s nationwide service of process and venue provisions, because Optima does
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`business in Utah, and the treatment at issue took place in Utah. In addition, venue in Utah
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`will save the Plaintiffs significant costs in litigating this case. Finally, in light of the
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`sensitive nature of the medical treatment at issue, it is the Plaintiffs’ desire that the case
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`be resolved in the State of Utah where it is more likely their privacy will be preserved.
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`8. The remedies the Plaintiffs seek are for the benefits due under the terms of the Plan, and
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`for appropriate equitable relief under 29 U.S.C. §1132(a)(3) based on the Defendant’s
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`violation of the Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”),
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`an award of prejudgment interest, an award of consequential damages for failure to abide
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`by the terms of the insurance contract, and an award of attorney fees and costs pursuant
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`to 29 U.S.C. §1132(g).
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`BACKGROUND FACTS
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`Triumph
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`9. L.S. was admitted to Triumph on January 2, 2020.
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`10. In a letter dated January 7, 2020, Optima denied payment for L.S.’s treatment. The letter
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`stated in part:
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`A case manager with Optima Health has reviewed your acute care stay with an
`Optima Medical Director. Based on the medical information provided by the
`utilization review staff of the hospital we are unable to approve the payment for
`the acute care hospital stay at this time. …
`
`The requested service is a specific benefit exclusion as described in your
`Evidence of Coverage or Summary Plan Document. Per the Exclusion and
`Limitations section:
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`Residential Treatment center care or care in another non-skilled settings [sic] are
`not covered services unless the treatment setting qualifies as a substance use
`disorder treatment facility licensed to provide continuous structured 24 hour a day
`program of drug or alcohol treatment and rehabilitation including 24 hour a day
`nursing care, and services are not merely custodial, residential, or domiciliary in
`nature.
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`11. Optima additionally sent the Plaintiff a letter dated January 8, 2020, which was largely
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`identical to the January 7, 2020, letter with the only notable exception being the dates of
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`service were different.
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`12. On June 18, 2020, R.J. submitted a level one appeal of the denial of L.S.’s treatment. She
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`pointed out that neither of the letters she had received showed the correct dates of service
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`and each had also mischaracterized L.S.’s treatment as an “acute care stay.” R.J. wrote
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`that the service at issue was residential treatment care, not acute hospitalization.
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`13. R.J. wrote that she was entitled to a full, fair, and thorough review conducted by
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`appropriately qualified reviewers. She stated that L.S.’s treatment was a covered benefit
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`under the terms of the Plan.
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`14. She quoted portions of the “What is Covered” portion of the summary plan description
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`which stated in part:
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`Inpatient Mental Health and Substance Use Disorder Treatment, Detoxification
`and Rehabilitation Services
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`Covered services include the following provided in an inpatient facility or
`substance use disorder treatment facility as Medically Necessary:
`
`
`•
`Individual psychotherapy, group psychotherapy, psychological testing;
`• Counseling with family members to assist with the patient’s diagnosis and
`treatment;
`• Convulsive therapy, detoxification and rehabilitation treatment;
`• Hospital and inpatient professional charges in any Hospital or facility
`required by state law.
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`She then quoted the definition of inpatient treatment which stated:
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`Mental health or Substance Use Disorder services delivered on a twenty-four hour
`per day basis in a Hospital, alcohol or drug rehabilitation facility, an intermediate
`care facility or an inpatient unit of a mental health treatment center.
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`Lastly, she quoted the definition of an intermediate care facility which stated:
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`“Intermediate care facility” means a licensed, residential public or private facility
`that is not a Hospital and that is operated primarily for the purpose of providing a
`continuous, structured twenty-four hour per day, state-approved program of
`inpatient substance use disorder services.
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`15. R.J. stated that L.S. clearly met these terms and provisions and asked Optima to identify
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`more specifically the basis on which it was denying payment. She stated that Triumph
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`was a licensed residential treatment facility which operated in accordance with governing
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`state regulations.
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`16. R.J. contended that the denial of payment violated MHPAEA. She stated that according
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`to MHPAEA, insurers were compelled to offer coverage for behavioral health treatment
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`“at parity” with analogous medical or surgical benefits.
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`17. She stated that Triumph was an intermediate level care facility providing mental health
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`and substance use disorder treatment analogous to the intermediate level care provided by
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`skilled nursing and hospice facilities for medical and surgical conditions.
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`18. She argued that Optima could not impose treatment limitations on mental health
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`treatment that it did not equally apply to medical or surgical treatments in the same
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`classification.
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`19. She quoted Optima’s exclusion for residential treatment care which stated:
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`Residential treatment center care or care in another non-skilled settings [sic] are
`not Covered Services unless the treatment setting qualifies as a substance use
`disorder treatment facility licensed to provide continuous, structured, 24 hour a
`day program of drug or alcohol treatment and rehabilitation including 24 hour a
`day nursing care, and services are not merely custodial, residential, or domiciliary
`in nature.
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`20. R.J. argued that Optima could not exclude residential treatment for mental health care in
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`this manner without imposing an unlawful nonquantitative treatment limitation prohibited
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`by MHPAEA.
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`21. In addition, R.J. shared a report from Milliman Inc. entitled Addiction and Mental Health
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`vs Physical Health: Widening Disparities in Network Use and Provider Reimbursement
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`which showed that individuals were over five times more likely to receive out-of-network
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`5
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`behavioral health treatment than they were to receive out-of-network medical or surgical
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`treatment.
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`22. She stated that she checked Optima’s in-network coverage within 100 miles of her home
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`and found twenty-four hospice facilities and seventy skilled nursing facilities. However,
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`although she was able to find a few mental health hospitals, she found zero programs
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`within a hundred mile radius which Optima classified as in-network residential treatment.
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`23. R.J. contended that Optima’s exclusion of these services was deliberate, capricious, and
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`was done for “no justifiable reason.” She requested that Optima perform a parity
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`compliance analysis of the Plan and to provide her with a physical copy of the results of
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`this analysis. She also requested to be provided with a copy of all documents under which
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`the Plan was operated.
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`24. In a letter dated July 21, 2020, Optima denied payment on the grounds that “Residential
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`or Sub-Acute Level of Care or treatment is not a covered service.”
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`25. In a letter dated August 18, 2020, Optima again upheld the denial of payment for L.S.’s
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`treatment. The letter stated in pertinent part:
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`Your request has been thoroughly reviewed by the Plan’s Medical Director who is
`board certified in Internal Medicine. Additionally, a Medical Director board
`certified in Child Psychiatry conducted a second and separate review. Upon this
`review, it is the decision of the Plan to uphold the original denial. The requested
`service is a specific benefit exclusion as described in your Evidence of Coverage
`Plan Document. Please reference your Evidence of Coverage, Section 7
`Exclusions and Limitations, which specifically states:
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`“Residential treatment center care or care in another non-skilled settings
`[sic] are not Covered Services unless the treatment setting qualifies as a
`substance use disorder treatment facility licensed to provide continuous,
`structured, 24 hour a day program of alcohol treatment and rehabilitation
`including 24 hour a day nursing care, services are not merely custodial,
`residential, or domiciliary in nature.” (emphasis in original)
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`6
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`26. On October 26, 2020, R.J. appealed the denial of payment for L.S.’s treatment for dates
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`of service July 1, 2020, to September 17, 2020.1 She stated that Optima continued to
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`misclassify L.S.’s treatment as an “acute care stay” when it clearly was not. She stated
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`that this caused her to have “significant concerns regarding the validity” of Optima’s
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`reviews.
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`27. She reiterated that L.S.’s treatment was a covered benefit under the terms of the Plan and
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`that Triumph qualified as an intermediate care facility and should have been approved on
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`that basis alone.
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`28. She contended that Optima continued to violate MHPAEA through its imposition of
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`treatment limitations on residential treatment which it did not apply to analogous medical
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`or surgical care.
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`29. R.J. again identified two primary examples of Optima’s violation of MHPAEA: the first
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`was its limitation of residential treatment to substance use facilities, and the second was
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`its use of practices which severely limited the availability of in-network residential
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`treatment providers and left her with essentially no in-network treatment options for
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`mental health, but dozens of available in-network medical or surgical facilities.
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`30. R.J. again asked Optima to conduct a MHPAEA compliance analysis and to provide her
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`with a physical copy of the results of this analysis. She stated that Optima had only
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`partially complied with her previous request for a copy of the governing plan documents
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`and she had thus far not received any guidelines for mental health residential treatment.
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`1 Effective July 1, 2020, T.H. became the primary plan participant. While the Plaintiffs still
`received coverage under the Plan, they had a new insurance and group ID number and submitted
`an additional appeal of the denial for L.S.’s treatment after July 1, 2020.
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`7
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`Case 1:21-cv-00172-DBP Document 2 Filed 12/30/21 PageID.9 Page 8 of 15
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`31. She wrote that L.S. was not receiving, nor did he require, substance abuse treatment, but
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`he received residential treatment to effectively treat his mental health and behavioral
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`disorders. She contended that it was nonsensical to utilize substance abuse criteria to
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`evaluate the medical necessity of someone without a substance abuse problem.
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`32. R.J. argued that the MCG criteria utilized by Optima were flawed and inconsistent with
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`generally accepted standards of care. She alleged that these guidelines were designed to
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`deliberately restrict the availability of residential treatment care in order to save money
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`for the corporations that utilized them.
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`33. R.J. asked Optima to respond to each of the issues she had raised and once again asked to
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`be provided with a copy of the documents under which the Plan was operated. She
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`elaborated that she was specifically requesting:
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`all governing plan documents, the summary plan description, any insurance
`policies in place for the benefits I am seeking, and any administrative service
`agreements that exist. In addition, in order to evaluate whether the plan is
`complying with the MHPAEA, please provide me any clinical guidelines or
`medical necessity criteria utilized in your determination, as well as their medical
`or surgical equivalents so that I may conduct a parity analysis of my plan’s mental
`health coverage. Please be advised that the criteria I am requesting includes the
`plan’s mental health, substance use disorder, skilled nursing facility, subacute
`inpatient rehabilitation, hospice or other intermediate medical/surgical or mental
`health and substance use disorder criteria regardless of whether the criteria were
`used to evaluate this claim. In addition, please provide me any reports or opinions
`provided to you from any physician or other professional. Finally, please provide
`me with the names, qualifications, and healthcare claim denial rates of all
`individuals who reviewed this claim or with whom you consulted about this
`claim.
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`34. R.J. wrote that Optima had partially complied with her request and she had received
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`criteria for end of life care, inpatient rehabilitation, medical admission recovery facility
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`care, and criteria for substance related disorders. R.J. asked that if Optima did not possess
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`8
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`Case 1:21-cv-00172-DBP Document 2 Filed 12/30/21 PageID.10 Page 9 of 15
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`these documents for whatever reason or was not acting on behalf of the Plan
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`Administrator in this regard that it forward her request to the appropriate entity.
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`35. In a letter dated December 3, 2020, Optima upheld the denial of payment under the
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`justification that “Residential or Sub-Acute Level of Care or treatment is not a
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`Covered Service.” (emphasis in original)
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`36. The Plaintiffs exhausted their pre-litigation appeal obligations under the terms of the Plan
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`and ERISA.
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`37. The denial of benefits for L.S.’s treatment was a breach of contract and caused R.J. and
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`T.H. to incur medical expenses that should have been paid by the Plan in an amount
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`totaling over $98,000.
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`FIRST CAUSE OF ACTION
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`(Claim for Breach of the Terms of the Insurance Policy))
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`38. Optima and the Plan failed to provide coverage for L.S.’s treatment in violation of the
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`express terms of the Plan which promise benefits to employees and their dependents for
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`medically necessary treatment of mental health and substance use disorders.
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`39. The denial letters produced by Optima do little to elucidate whether Optima conducted a
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`meaningful analysis of the Plaintiffs’ appeals or whether it provided them with the “full
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`and fair review” to which they are entitled.
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`40. Optima failed to substantively respond to the issues presented in R.J.’s appeals and did
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`not meaningfully address the arguments or concerns that the Plaintiffs raised during the
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`appeals process.
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`41. In addition, Optima made repeated mistakes inconsistent with a thorough review such as
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`referring to L.S.’s non-acute residential treatment care as, “your acute care stay.”
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`9
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`Additionally, Optima only partially complied with the Plaintiffs’ request for documents.
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`42. The actions of Optima and the Plan in failing to provide coverage for L.S.’s medically
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`necessary treatment are a violation of the terms of the Plan and its medical necessity
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`criteria.
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`SECOND CAUSE OF ACTION
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`(Claim for Violation of MHPAEA Under 29 U.S.C. §1132(a)(3))
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`43. Generally speaking, MHPAEA requires insurance plans to provide no less generous
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`coverage for treatment of mental health and substance use disorders than they provide for
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`treatment of medical/surgical disorders.
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`44. MHPAEA prohibits insurance plans from imposing treatment limitations on mental
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`health or substance use disorder benefits that are more restrictive than the predominant
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`treatment limitations applied to substantially all medical and surgical benefits and also
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`makes illegal separate treatment limitations that are applicable only with respect to
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`mental health or substance use disorder benefits. 29 U.S.C.§1185a(a)(3)(A)(ii).
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`45. Impermissible nonquantitative treatment limitations under MHPAEA include, but are not
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`limited to, medical management standards limiting or excluding benefits based on
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`medical necessity; refusal to pay for higher-cost treatment until it can be shown that a
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`lower-cost treatment is not effective; and restrictions based on geographic location,
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`facility type, provider specialty, or other criteria that limit the scope or duration of
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`benefits for mental health or substance use disorder treatment. 29 C.F.R.
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`§2590.712(c)(4)(ii)(A), (F), and (H).
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`46. The medical necessity criteria used by Optima for the intermediate level mental health
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`treatment benefits at issue in this case are more stringent or restrictive than the medical
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`Case 1:21-cv-00172-DBP Document 2 Filed 12/30/21 PageID.12 Page 11 of 15
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`necessity criteria the Plan applies to analogous intermediate levels of medical or surgical
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`benefits.
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`47. Comparable benefits offered by the Plan for medical/surgical treatment analogous to the
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`benefits the Plan excluded for L.S.’s treatment include sub-acute inpatient treatment
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`settings such as skilled nursing facilities, inpatient hospice care, and rehabilitation
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`facilities.
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`48. For none of these types of treatment does Optima exclude or restrict coverage of
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`medical/surgical conditions by imposing restrictions such as a substance abuse
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`requirement for sub-acute mental healthcare. To do so, would violate not only the terms
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`of the insurance contract, but also generally accepted standards of medical practice.
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`49. When Optima and the Plan receive claims for intermediate level treatment of medical and
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`surgical conditions, they provide benefits and pay the claims as outlined in the terms of
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`the Plan based on generally accepted standards of medical practice.
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`50. Optima and the Plan evaluated L.S.’s mental health claims using medical necessity
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`criteria that deviate from generally accepted standards of medical practice. This process
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`resulted in a disparity because the Plan denied coverage for mental health benefits when
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`the analogous levels of medical or surgical benefits would have been paid.
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`51. R.J. identified two primary instances of Optima’s violation of MHPAEA. The first was a
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`categorical exclusion of mental health residential treatment and the second was a series of
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`systemic processes which artificially limited the availability of in-network mental
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`healthcare.
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`52. Optima’s denial letters consistently state that residential treatment is not covered except
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`in the event it is rendered for the treatment of substance abuse. Optima also included
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`Case 1:21-cv-00172-DBP Document 2 Filed 12/30/21 PageID.13 Page 12 of 15
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`language from the insurance policy which confirmed that mental health residential
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`treatment was an excluded service under the terms of the Plan.
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`53. Optima’s exclusion of mental health residential treatment is a facial violation of
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`MHPAEA because Optima purports to provide benefits for mental health treatment but
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`imposes a nonquantitative treatment limitation on the face of the Plan language that is
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`more stringent for treatment of mental health disorders in a residential treatment setting
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`than for treatment of medical and surgical conditions provided in analogous settings such
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`as skilled nursing, rehabilitation, and hospice facilities. This disparate limitation is
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`repeatedly found not only in Optima’s denial letters but is also found in the plain
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`language of the insurance policy.
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`54. The other primary example R.J. offered of the disparate treatment Optima offered
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`between mental health and medical or surgical services in the same classification was
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`Optima’s use of practices which severely limited the availability of in-network mental
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`health services.
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`55. Optima restricts the availability of benefits from network residential facilities in a manner
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`that is more restrictive than the limitations it imposes for network skilled nursing, hospice
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`or rehabilitation facilities. R.J. provided an example of this by showing that while there
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`were dozens of intermediate level medical or surgical inpatient facilities near her home,
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`she was unable to find a single network residential treatment facility within a hundred
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`miles.
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`56. R.J. shared documentation from Milliman which demonstrated that one of the most
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`prevalent ways in which insurers and health plans violated MHPAEA was in the form of
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`great disparities between the availability of network providers for mental health disorders
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`Case 1:21-cv-00172-DBP Document 2 Filed 12/30/21 PageID.14 Page 13 of 15
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`and network providers for medical and surgical treatment: insureds were over five times
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`more likely to find available network medical or surgical care than they were to find
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`available network mental healthcare.
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`57. In this manner, the Defendant violated 29 C.F.R. §2590.712(c)(4)(i) because the Plan, as
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`written or in operation, used processes, strategies, standards, or other factors to limit
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`coverage for mental health or substance use disorder treatment in a way that was
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`inconsistent with, and more stringently applied, than the processes, strategies, standards
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`or other factors used to limit coverage for medical and surgical treatment in the same
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`classification.
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`58. Optima and the Plan did not produce many of the documents the Plaintiffs requested to
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`evaluate medical necessity and MHPAEA compliance, nor did they address in any
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`substantive capacity the Plaintiffs’ allegations that Optima and the Plan were not in
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`compliance with MHPAEA.
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`59. The violations of MHPAEA by Optima and the Plan are breaches of fiduciary duty and
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`also give the Plaintiffs the right to obtain appropriate equitable remedies as provided
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`under 29 U.S.C. §1132(a)(3) including, but not limited to:
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`
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`(a) A declaration that the actions of the Defendant violate MHPAEA;
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`(b) An injunction ordering the Defendant to cease violating MHPAEA and requiring
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`compliance with the statute;
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`(c) An order requiring the reformation of the terms of the Plan and the medical necessity
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`criteria utilized by the Defendant to interpret and apply the terms of the Plan to ensure
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`compliance with MHPAEA;
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`(d) An order requiring disgorgement of funds obtained by or retained by the Defendant as
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`a result of their violations of MHPAEA;
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`(e) An order requiring an accounting by the Defendant of the funds wrongly withheld
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`from participants and beneficiaries of the Plan as a result of the Defendant’s
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`violations of MHPAEA;
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`(f) An order based on the equitable remedy of surcharge requiring the Defendant to
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`provide payment to the Plaintiffs as make-whole relief for their loss;
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`(g) An order equitably estopping the Defendant from denying the Plaintiffs’ claims in
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`violation of MHPAEA; and
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`(h) An order providing restitution from the Defendant to the Plaintiffs for their loss
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`arising out of the Defendant’s violation of MHPAEA.
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`60. In addition, Plaintiffs are entitled to an award of prejudgment interest pursuant to U.C.A.
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`§15-1-1, and attorney fees and costs pursuant to 29 U.S.C. §1132(g)
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`WHEREFORE, the Plaintiffs seek relief as follows:
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`1.
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`Judgment in the total amount that is owed for L.S.’s medically necessary treatment at
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`Triumph under the terms of the Plan, plus pre and post-judgment interest to the date
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`of payment;
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`Appropriate equitable relief under 29 U.S.C. §1132(a)(3) as outlined in Plaintiffs’
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`Second Cause of Action;
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`Attorney fees and costs incurred together with other reasonably foreseen
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`consequential damages; and
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`2.
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`3.
`
`//
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`//
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`Case 1:21-cv-00172-DBP Document 2 Filed 12/30/21 PageID.16 Page 15 of 15
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`4.
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`For such further relief as the Court deems just and proper.
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`DATED this 30th day of December, 2021.
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`By s/ Brian S. King
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`Brian S. King
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`Attorney for Plaintiffs
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`City of Plaintiffs’ Residence:
`Chesapeake, Virginia
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`15
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