Case 1:22-cv-00059-HCN Document 2 Filed 04/15/22 PageID.2 Page 1 of 18
`
`Kathleen J. Abke, #12422
`Savanna Jones, #17624
`STRONG & HANNI
`102 South 200 East, Suite 800
`Salt Lake City, Utah 84111
`Telephone: (801) 532-7080
`Facsimile: (801) 596-1508
`kabke@strongandhanni.com
`sjones@strongandhanni.com
`Attorneys for Plaintiffs
`
` _____________________________________________________________________________
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`
`
`
`
`Plaintiffs,
`
`vs.
`
`
`COMPLAINT
`
`
`
`Case No.
`
`
`
`
`
`DISTRICT OF UTAH, CENTRAL DIVISION
`______________________________________________________________________________
`
`
`ERIC B., individually and on behalf of his
`minor child, E.B.,
`
`
`
`
`
`
`ANTHEM LIFE AND HEALTH
`INSURANCE COMPANY; BLUE
`CROSS OF CALIFORNIA dba
`ANTHEM BLUE CROSS; ANTHEM
`UM SERVICES; the INTEL
`CORPORATION HEALTH AND
`WELFARE PLAN; INTEL, INC. and
`JOHN DOES 1-10,
`
`
`
`
`
`
`Defendants.
`
`
`
`Plaintiffs Eric B. (“Eric”) and E.B. (“E.”), by and through undersigned counsel, complain
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`and allege against Defendants Anthem Life and Health Insurance Company, Blue Cross of
`
`

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`Case 1:22-cv-00059-HCN Document 2 Filed 04/15/22 PageID.3 Page 2 of 18
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`California dba Anthem Blue Cross Inc., and Anthem UM Services (collectively, “Anthem”), Intel,
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`Inc. (“Intel”) and the Intel Corporation Health and Welfare Plan (“the Plan”) as follows:
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`PARTIES, JURISDICTION AND VENUE
`
`1.
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`Eric B. and E. are individuals residing in Maricopa County, Arizona. Eric is E.’s
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`father.
`
`2.
`
`Anthem Blue Cross Life and Health Insurance Company is an insurance company
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`headquartered in Marion County, Indiana and it or its affiliate, Anthem Blue Cross of California,
`
`was the third-party claims administrator for the Plan, as well as a fiduciary under ERISA for the
`
`plan during the treatment at issue in this case. Anthem Blue Cross of California uses the trade
`
`name Anthem Blue Cross.
`
`3.
`
`Anthem UM Services, Inc. is an agent or affiliate of Anthem Blue Cross Life and
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`Health Insurance Company and provides utilization review services on behalf of Anthem Blue
`
`Cross Life and Health Insurance Company.
`
`4.
`
`Intel is a technology company headquartered in Santa Clara County, California and
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`was the Plan Administrator for the Plan during the treatment at issue in this case.
`
`5.
`
`The Plan is a self-funded employee welfare benefits plan under 29 U.S.C. § 1001
`
`et seq., the Employee Retirement Income Security Act of 1975 (“ERISA”). Eric was a participant
`
`in the Plan and E. was a beneficiary of the Plan at all relevant times. Eric and E. continue to be
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`participants and beneficiaries of the Plan.
`
`6.
`
`7.
`
`At all relevant times, Anthem acted as an agent for the Plan and Intel.
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`E. received medical care and treatment, which Anthem is responsible to cover, at
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`Elevations/Seven Stars (“Elevations”) from December 17, 2019 through May 8, 2020. Elevations
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`is a licensed residential treatment facility that provides subacute inpatient and intermediate
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`

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`Case 1:22-cv-00059-HCN Document 2 Filed 04/15/22 PageID.4 Page 3 of 18
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`behavioral health treatment to adolescents with mental health, behavioral, and/or substance use
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`disorders. Elevations is located in Davis County, Utah.
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`8.
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`Anthem denied claims for payment of E.’s medical expenses in connection with her
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`treatment at Elevations.
`
`9.
`
`This Court has jurisdiction over this case under 29 U.S.C § 1132 (e)(1) and 28
`
`U.S.C. § 1331.
`
`10.
`
`Venue is appropriate under 29 U.S.C. § 1132(e)(2) and 28 U.S.C. § 1391(c) based
`
`on ERISA’s nationwide serve of process and venue provisions, and because Anthem does business
`
`in Utah, many individual participants and beneficiaries of Anthem-insured and administered
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`ERISA benefit plans reside in Utah, and the treatment at issue took place in Utah. In addition,
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`venue in Utah will save the Plaintiff costs in litigating this case. In light of the sensitive nature of
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`the medical treatment at issue, it is the Plaintiff’s desire that the case be resolved in the State of
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`Utah where it is more likely her privacy will be preserved.
`
`11.
`
`The remedies Plaintiffs seek under the terms of ERISA and under the Plan are for
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`the benefits due under the terms of the Plan, and pursuant to 29 U.S.C § 1132(a)(1)(B), for
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`appropriate equitable relief under 29 U.S.C. § 1132(a)(3) based on the Defendants’ violation of
`
`the Mental health Parity and Addiction Equity Act of 2008 (“MHPAEA”), and an award of
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`attorney fees and costs pursuant to 29 U.S.C. § 1132(g).
`
`GENERAL ALLEGATIONS
`
`Background
`
`E. was born with two serious congenital heart defects: coarctation of the aorta
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`12.
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`(narrowing of the aortic arch) and double inlet left ventricle (only one working pumping
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`chamber/ventricle in the heart), requiring several open heart surgeries to correct.
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`

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`13.
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`E. underwent her first open heart surgery at only 5 days old. Unfortunately, E.
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`subsequently developed sepsis and was hospitalized for weeks. E. was first able to come home
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`from the hospital at 3 ½ weeks of life.
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`14.
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`E. underwent her second open heart surgery at two months of age, but unfortunately
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`declined within a few weeks post-op. As a result, E. was admitted for a 6-month hospital stay that
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`involved two additional open heart surgeries. E. was in a medically-induced coma and required
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`ventilator support to survive.
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`15.
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`After E. was finally able to go home, she remained an incredibly fragile child. She
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`had to be weaned from powerful narcotic pain medications and her oxygen saturations were rarely
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`above the 60’s to 70’s due to her weak heart. Naturally, E. suffered from chronic fatigue and
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`generalized weakness during this time, causing her delays in reaching developmental milestones.
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`16.
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`Four days before E. turned two, she underwent her fifth open heart surgery to
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`address her single ventricle defect. It was only after this procedure that E. was able to maintain
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`oxygen saturations in the 80’s and have the energy to continue learning and developing.
`
`17.
`
`E. struggled with attention and distraction from a very early age and was behind on
`
`her developmental milestones. E. attended a Montessori preschool but struggled to keep up with
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`learning and processing new information, on top of her reactivity to touch and sound.
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`18.
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`E. underwent her final open heart surgery when she was 5 ½ years old. Being older
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`and more aware of what was happening, E. was fearful and struggled to cope both physically and
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`emotionally after the procedure.
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`19.
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`Following her final surgery, E. was, for the first time, able to maintain oxygen
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`saturations in the 90’s and had the stamina to walk on her own without needing a stroller.
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`

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`20.
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`E. started public kindergarten after her final open heart surgery, but immediately
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`struggled in school. Her teach expressed concern regarding E.’s developmental delays and
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`concentration issues and a 504 plan was put in place to ensure E. had the necessary
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`accommodations to learn. Shortly thereafter, E. underwent neuropsychological testing and was
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`diagnosed with ADHD, combined type.
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`21.
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`E. continued to struggle academically and was transitioned out of the public school
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`and back to a private Montessori school. E. was evaluated by the school psychologist and was
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`diagnosed with visual spatial processing disorder in addition to her ADHD and was placed on an
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`Individualized Education Plan (“IEP”).
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`22.
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`Nevertheless, E. continued to struggle with processing and concentration and fell
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`behind in school. E. also struggled with insomnia due to her extensive early childhood medical
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`trauma, requiring a variety of medications and supplements. E. requires this combination of
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`medications and supplements for sleep to this day.
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`23.
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`At age 11, E. was seen by specialists in cardiac neurodevelopment at Children’s
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`Mercy Hospital in Kansas City, MO, who diagnosed with periventricular leukomalacia, a form of
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`brain damage resulting from chronic hypoxia, multiple episodes of cardiac bypass and intensive
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`medical interventions. Psychological testing revealed that E. had cognitive impairments from this
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`brain damage. The doctors provided recommendations as to specific recommendations to
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`incorporate into E.’s IEP and the conditions required for E.’s school and home environment.
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`24.
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`In 2016, when E. was 12, she began psychiatric treatment with Dr. Sristi Nath for
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`both therapeutic intervention and medication management.
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`25.
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`During middle school, E. attended all academic classes in a self-contained special
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`education classroom. She only attended physical education in a mainstream setting with her peers.
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`

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`26.
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`During this time, E. struggled with her behavior at home, and often had explosive
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`tantrums and defiant behavior. E.’s anxiety manifested in compulsive behaviors such as skin
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`picking, which often caused infections.
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`27.
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`E. also struggled socially, as she was unable to interpret social cues from peers or
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`recognize nuances of social relationships with neurotypical peers. E.’s parents spent significant
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`time fielding calls from other parents, managing E.’s safety and helping her understand
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`communication boundaries.
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`28.
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`E.’s safety also became a major challenge, as E. would regularly wander away from
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`home and knock on stranger’s doors, or walk miles away from home to go where she pleased
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`without informing her family of her whereabouts.
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`29.
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`E. was also unable to manage basic self-care and hygiene without prompting. E.’s
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`parents must remind her of the basic steps to get ready for the day, and E. is unable to learn from
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`repeated trials.
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`30.
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`In 2019, before she started high school, she returned to Children’s Mercy for repeat
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`neuropsychological testing. The results showed that E.’s functioning was significantly behind her
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`same-aged peers. The neuropsychologist found that E. cognitive function was borderline to
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`impaired, her adaptive functioning was low average to borderline, and had low average practical
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`daily living skills, among other things. It was further noted that E. had problems with executive
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`functioning and visual-motor integration.
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`31. When E started high school in the fall of 2019, she immediately fell apart. She
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`would run out of the classroom when she felt overwhelmed, refused to follow directions, and acted
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`impulsively in both academic and social settings. E.’s parents were forced to hire a special needs
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`advocate to help manage E.’s educational accommodations.
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`

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`32.
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`E. continued engaging in dangerous behavior such as going places without
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`informing her family and leaving her family with no way to contact her, oblivious to the potential
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`ramifications of her behavior. E.’s family hired babysitters to monitor E. when her parents were at
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`work to ensure she did not make potentially dangerous decisions. E.’s parents also hired a specialty
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`therapist at the Neurodiversity Institute who began treating E.
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`33.
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`E.’s behavior culminated in an incident where E. was caught vaping on school
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`grounds, resulting in her being suspended from school. E. did not consider or understand the
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`potential health consequences of vaping given her cardiac condition and comorbid health
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`problems.
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`34.
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`At this point, E’s parents realized that E. needed a higher level of care in a
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`controlled setting where E. could be safe and receive appropriate educational and emotional care.
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`E.’s parents consulted with EduPlanners to find an effective residential treatment placement.
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`Treatment at Elevations
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`35.
`
`E. was admitted to Elevations on December 30, 2019 for treatment of her mental,
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`emotional and behavioral issues, developmental disturbances and environmental adjustment
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`problems.
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`36.
`
`E. was an evaluated by Elevations’ psychiatrist upon admission, who diagnosed her
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`with generalized anxiety disorder, ADHD and major neurocognitive disorder with behavioral
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`disturbance.
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`37.
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`Importantly, the admitting psychiatrist noted that E. was “not a threat to herself or
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`others and is not an AWOL risk at this time.”
`
`38.
`
`39.
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`E. made slow but steady process while at Elevations.
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`On February 17, 2020, her daily progress note indicated:
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`

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`“[E.] was very disruptive during the last hour of class. [E.] was prompted several times to focus
`on her task and was given many options on what to do. [E.] continued to be disruptive. [E.] refused
`to do any work during class. [E.] was able to take a shower after a few prompts from staff. [E.]
`was able to tidy up her room with held from staff to do each step along the way. …[E.] expressed
`that she wasn’t hungry during dinner due to her meds. Staff encouraged [E.] to eat reminder her
`that she would be hungry before bed if she didn’t. [E.] was able to get food and ate a full meal.
`[…]”
`
`
`
`40.
`
`In a February 22, 2020 psychiatric progress note, Elevations noted that E. had an
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`acute DSM-5 disorder that is amenable to active psychiatric treatment, and had a high degree of
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`potential for psychiatric hospitalization without residential treatment. The psychiatrist further
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`noted that E. required 24/7 supervision in order to develop necessary skills and functional
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`behavior.
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`41.
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`E. was discharged from Elevations on May 8, 2020.
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`Prelitigation Claims Denials and Appeals
`
`42.
`
`43.
`
`Claims were submitted to the Plan for coverage of E.’s treatment at Elevations.
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`On February 20, 2020, Anthem denied payment for E.’s treatment at Elevations.
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`An unidentified reviewer offered the following justification for denying payment for care:
`
`The request tells us you went to a residential treatment center for your mental health
`condition. The program asked to extend your stay. The plan clinical criteria
`considers ongoing residential treatment medically necessary for those who are a
`danger to themselves or others (as shown by hearing voices telling them to harm
`themselves or others or persistent thoughts of harm that cannot be managed at a
`lower level of care). This service can also be medically necessary for those who
`have a mental health condition that is causing serious problems with
`functioning. (For example, being impulsive or abusive, very poor self care, not
`sleeping or eating, avoidance of personal interactions, or unable to perform
`usual obligations. In addition, the person must be willing to stay and participate,
`and is expected to either improve with this care, or to keep from getting worse. The
`information we have does not show that you are a danger to yourself or others.
`For this reason, the request is denied as not medically necessary. There may be
`other treatment options to help you, such as outpatient services. You may want to
`discuss these with your doctor. It may help your doctor to know we reviewed the
`request using the MCG guideline Residential Behavioral Health Level of Care,
`Child or Adolescent (ORG: B-902-RES).
`
`

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`
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`44.
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`On February 28, 2020, Anthem again denied payment for E.’s treatment from
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`February 17, 2020 forward. Reviewer Abdelrhman Sokiman, M.D., identified as a physician board
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`certified in psychiatry, set forth the following reasons for denying payment for care:
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`After the treatment you had, you were no longer at risk for serious harm that needed
`24 hour care. You could have been treated with outpatient services. We based this
`decision on the MCG guideline Residential Behavioral Health Level of Care, Child
`or Adolescent (ORG: B-902-RES).
`
`
`
`45.
`
`The February 28, 2020 denial letter explained this was Anthem’s final decision and
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`that E’s appeal rights were exhausted. The letter further stated that E. could request an external
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`review of the decision by an Independent Review Organization (IRO) within four months from the
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`date of the letter.
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`46.
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`On June 2, 2020, before the time expired for Eric to submit his request for IRO
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`review, Anthem issued a letter approving, in part, and denying, in part, payment for E.’s treatment
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`at Elevations. Payment for E’s treatment from January 1, 2020 through February 16, 2020 was
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`approved. Treatment from February 17, 2020 to May 8, 2020 (the “Denied DOS”) was denied.
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`Reviewer David Naimark, M.D. offered no specific explanation for denying the latter dates of
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`service.
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`47.
`
`One June 12, 2020, Eric timely submitted a request for IRO review of Anthem’s
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`February 28, 2020 denial of Payment for E.’s treatment at Elevations for the Denied DOS, as
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`instructed in Anthem’s February 28, 2020 letter.
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`48.
`
`In an undated letter, Anthem stated it received Eric’s request for an external review
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`of the denial on June 17, 2020. Anthem further stated that the Eric’s appeal did not qualify for
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`external review because “all required levels of appeal review have not been completed.” Anthem
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`stated it would treat Eric’s June 12, 2020 request for IRO review as a “level 1 appeal.”
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`

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`49.
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`In Eric’s June 12, 2020 level 1 appeal, he reminded Anthem that he was entitled to
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`certain legal protections during the IRO process and that the IRO Anthem provided was required
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`to provide him with the protections established by the National Association of Insurance
`
`Commissioners as outlined in the Uniform Health Carrier External Review Model Act (“Model
`
`Act”). Specifically, the Model Act required certain minimum qualifications of the reviewer,
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`including being and expert in the treatment of E.’s medical condition and knowledgeable about
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`the recommended health care service and treatment through actual clinical experience treating
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`patients with the same or similar medical condition.
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`50.
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`Based on the unique circumstances of E.’s medical and psychiatric diagnoses and
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`needs, Eric further requested that E.’s care be reviewed by a board certified neurologist and
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`psychologist with experience treating children and adolescents with major neurocognitive disorder
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`due to cardiac medical condition, with behavioral disturbance; ADHD; mild intellectual disability
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`and other high risk behaviors in a residential setting.
`
`51.
`
`Eric provided a detailed explanation and evidence that E.’s treatment at Elevations
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`was medically necessary, as defined in the terms and conditions of the Plan:
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`Medically necessary services must meet all of the following criteria: consistency
`among symptoms, diagnosis, and treatment; appropriate and in keeping with
`standards of good medical practice; not solely for the convenience of the member
`or participating providers; not for conditions that have reached maximum medical
`improvement or are maintenance in nature.
`
`
`
`52.
`
`Eric argued that E.’s entire admission to Elevations met all of the requirements of
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`medical necessity as defined in the plan and provided Anthem with over 700 pages of medical
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`records, medical opinion letters from E.’s treating cardiologist, psychiatrist and therapists, and
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`educational records, among other things, to support his position.
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`

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`53.
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`Eric argued and provided evidence that E. was admitted to Elevations for treatment
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`of her diagnosed mental, emotional and behavioral issues, developmental disturbances and
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`environmental adjustment problems.
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`54.
`
`Eric clarified that E.’s treatment was never related to a concern about her potentially
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`harming herself. It was E.’s lack of insight and lack of coping skills due to her diagnosed cognitive
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`disabilities. Eric pointed out that Anthem’s reviewer made no mention of the fact E. suffers from
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`extensive comorbid medical conditions that affect her ability to respond to treatment.
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`55.
`
`Eric argued that the MCG criteria used by Anthem’s reviewer in the February 28,
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`2020 denial violated generally accepted standards of medical practice, as the criteria were
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`“proprietary clinical guidelines” that overemphasized acuity and crisis stabilization over effective
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`treatment of the patient’s underlying condition, failed to address the effective treatment of co-
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`occurring conditions, failed to err on the side of caution in favor of a higher level of care when
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`there is ambiguity, pushing patients to lower levels of care where such care is less effective and
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`precluding coverage for treatment to maintain level of function.
`
`56.
`
`Eric further argued that requiring E. to be a “risk to herself or others” raised the
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`acuity bar for residential treatment center admission to those generally applied to acute
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`hospitalization admission standards.
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`57.
`
`Eric reminded Anthem of his rights under both ERISA and the Mental Health Parity
`
`and Addiction Equity Act of 2008 (“MHPAEA”). Specifically, he advised Anthem that plans such
`
`as the Plan that offer behavioral health benefits are required to offer those benefits at parity with
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`comparable medical or surgical benefits and that MHPAEA requires coverage for intermediate
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`facilities such as Elevations.
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`

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`58.
`
`On September 4, 2020, Anthem denied payment for E.’s treatment from February
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`17, 2020 forward. A reviewer identified only as “a health plan Medical Director, an MD who is
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`board certified and specializes in psychiatry,” set forth the following reasons for denying payment
`
`for care:
`
`We reviewed all the information that was given to us before with the first request
`for coverage. We also reviewed all that was given to us for the appeal. Your doctor
`wanted you to stay longer in residential treatment center care. You were getting this
`because you had been at risk for serious harm without 24-hour care. We understand
`that you would like us to change our first decision. Now we have new information
`from the medical records plus letters. We still do not think this is medically
`necessary for you. We believe our first decision is correct for the following
`reason: after the treatment you had, you were no longer at risk for serious
`harm that needed 24 hour care. You could have been treated with outpatient
`services. We based this decision on the MCG guideline Residential Behavioral
`Health Level of Care, Child or Adolescent (ORG: B-902-RES).
`
`
`
`59.
`
`The September 4, 2020 denial letter explained this was Anthem’s final adverse
`
`decision. The letter further stated that E. could request an external review of the decision by an
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`IRO within four months from the date of the letter.
`
`60.
`
`On September 16, 2020, Eric timely submitted a request for IRO. The contents of
`
`the request were the same as his June 12, 2020 request.
`
`61.
`
`62.
`
`Again, Eric reminded Anthem of his rights under both ERISA and MHPAEA.
`
`In a letter dated October 1, 2020, Anthem advised that it had received Eric’s
`
`September 16, 2020 request for IRO and would respond within 30 days.
`
`63.
`
`On December 14, 2020, Eric received a letter from MCMC, an IRO, upholding the
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`denial of E.’s treatment for the Denied Dates of Service.
`
`64.
`
`Plaintiffs exhausted their prelitigation appeal obligations under the terms of the
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`Plan and ERISA.
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`

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`65.
`
`The denial of benefits for E.’s treatment was a breach of contract and caused Eric
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`to incur medical expenses that should have been paid by the Plan in an amount totaling over
`
`$50,000.
`
`FIRST CAUSE OF ACTION
`
`(Claim for Recovery of Benefits Under 29 U.S.C. § 1132(a)(1)(B))
`
`66.
`
`ERISA sets higher-than marketplace quality standards on insurers and plan
`
`administrators. It sets forth a special standard of care upon plan fiduciaries such as Anthem, acting
`
`as an agent of the Plan, to “discharge [its] duties in respect to claims processing solely in the
`
`interests of the participants and beneficiaries” of the Plan. 29 U.S.C. § 1104(a)(1).
`
`67.
`
`ERISA also emphasizes accurate claims processing and evaluation by requiring
`
`administrators to provide a “full and fair review’ of claim denials and to engage in a meaningful
`
`dialogue with Plaintiffs in the pre-ligation appeals process. 29 U.S.C. § 1133(2).
`
`68.
`
`Defendants breached their fiduciary duties to E. when they failed to comply with
`
`their obligations under 29 U.S.C. §§ 1104 and 1133 to act solely in E.’s interest and for the
`
`exclusive purpose of providing benefits to ERISA participants and beneficiaries and to provide a
`
`full and fair review of E’s claims.
`
`69.
`
`Defendants failed to provide coverage for E.’s treatment in violation of the express
`
`terms of the Plan, which promise benefits to employees and their dependents for medically
`
`necessary treatment of mental health and substance use disorders.
`
`70.
`
`ERISA’s claim procedures set forth guidelines for appropriate review of denied
`
`claims, including a requirement that medical reviewers have opinions and expertise equivalent to
`
`the claimant’s treating providers.
`
`71.
`
`Anthem’s denial letters fail to evidence that it conducted a meaningful analysis of
`
`Plaintiffs’ appeals or whether Defendants provided Plaintiffs with the “full and fair review” to
`
`

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`which they are entitled. Anthem failed to substantively respond to the issues presented in Eric’s
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`appeals and did not in any way address the arguments and concerns raised during the prelitigation
`
`appeals process.
`
`72.
`
`Anthem and the agents of the Plan breached their fiduciary duties to Plaintiffs when
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`they failed to comply with their obligations under 29 U.S.C. §§ 1104 and 1133 to act solely in Eric
`
`and E.’s interests and for the exclusive purpose of providing benefits to ERISA participants and
`
`beneficiaries, to produce copies of relevant documents and information to claimants upon request,
`
`and to provide a full and fair review of Plaintiffs’ claims.
`
`73.
`
`The actions of Defendants in failing to provide coverage for E.’s medically
`
`necessary treatment are a violation of the Plan and its medical necessity criteria.
`
`SECOND CAUSE OF ACTION
`
`(Claim for Violation of MHPAEA Under 29 U.S.C. § 1132(a)(3))
`
`74. MHPAEA is incorporated into ERISA and is enforceable by ERISA participants
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`and beneficiaries as a requirement of both ERISA and MHPAEA. The obligation to comply with
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`both ERISA and MPAEA is part of Anthem’s fiduciary duties.
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`75. MHPAEA requires ERISA plans to provide coverage for mental health treatment
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`and substance use disorders that is no less generous or favorable than that provided for treatment
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`of medical/surgical disorders and conditions.
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`76. MHPAEA prohibits ERISA plans from imposing treatment limitations on mental
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`health or substance use disorder benefits that are more restrictive than the predominant treatment
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`limitations applied to substantially all medical and surgical benefits covered by ERISA plans and
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`from imposing separate treatment limitations that are applicable only with respect to mental health
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`or substance use disorder benefits. 29 U.S.C. § 1185(a)(3)(A)(ii).
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`

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`Case 1:22-cv-00059-HCN Document 2 Filed 04/15/22 PageID.16 Page 15 of 18
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`77.
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`Examples of improper nonquantitative treatment limitations under MHPAEA
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`include, but are not limited to: medical management standards limiting or excluding benefits based
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`on medical necessity; restrictions based on geographic location; facility type, provider specialty;
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`and other criteria that limit the scope or duration of benefits for mental health or substance use
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`disorder treatment. 29 C.F.R. § 2590.712(c)(4)(ii)(A) and (H).
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`78.
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`The medical necessity criteria used by Anthem for intermediate level mental health
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`treatment benefits at issue in this case are more stringent or restrictive than the medical necessity
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`criteria the Plan applies to analogous intermediate levels of medical or surgical benefits.
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`79.
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`The Plan offers comparable benefits for medical/surgical treatment that the Plan
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`excluded for E’s treatment, including sub-acute inpatient treatment settings including skilled
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`nursing facilities, inpatient hospice care, and rehabilitation facilities. Anthem does not exclude or
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`restrict coverage of these analogous medical/surgical conditions by imposing restrictions such as
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`an acute care requirement for subacute level of care or other criteria in the manner Anthem
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`excluded coverage of E.’s treatment at Elevations. Doing so would violate both the terms of the
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`insurance contract and generally accepted standards of medical practice.
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`80. When Anthem and the Plan receive claims for intermediate level treatment of
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`medical and surgical conditions, they provide benefits and pay the claims as outlined in the terms
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`of the Plan based on generally accepted standards of medical practice.
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`81.
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`Defendants evaluated E.’s mental health claims using medical necessity criteria that
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`deviate from generally accepted standards of medical practice. This process resulted in a disparity
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`because the Plan denied coverage for mental health benefits when analogous levels of medical or
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`surgical benefits would have been paid.
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`Case 1:22-cv-00059-HCN Document 2 Filed 04/15/22 PageID.17 Page 16 of 18
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`82.
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`Anthem’s reviewers improperly applied acute medical necessity criteria to evaluate
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`the non-acute treatment E. received, as evidenced by statements in Anthem’s denial letters stating
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`that E. was “no longer at risk for serious harm that needed 24 hour care.” Anthem imposed this
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`requirement even though it was not actually required under Anthem’s own residential treatment
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`criteria.
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`83.
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`Notably, Anthem approved a portion of E.’s residential treatment, but E. did not
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`exhibit acute level symptoms or manifest “a risk for serious harm” during the paid dates of service.
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`84.
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`Defendants violated 29 C.F.R. § 2590.712(c)(4)(i) because the terms of the Plan
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`and the medical necessity criteria utilized by the Plan and Anthem, as written or in operation, use
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`processes, strategies, standards, or other factors to limit coverage for mental health or substance
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`use disorder treatment in a way that is inconsistent with, and more stringently applied, than the
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`processes, strategies, standards or other factors used to limit coverage for medical/surgical
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`treatment in the same classification.
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`85.
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`Defendants failed to produce the documents Plaintiffs requested to evaluate
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`medical necessity and MHPAEA compliance, nor did they address in any way Plaintiffs
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`allegations that they were in violation of MHPAEA.
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`86.
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`Plaintiffs have the right to obtain appropriate equitable remedies under 29 U.S.C. §
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`1132(a)(3) based on Anthem’s and the Plan’s violations of MHPAEA including, but not limited
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`to:
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`a)
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`b)
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`A declaration that Defendants’ actions violate MHPAEA;
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`An injunction ordering Defendants to cease violating MHPAEA and requiring
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`compliance with the statute;
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`

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`Case 1:22-cv-00059-HCN Document 2 Filed 04/15/22 PageID.18 Page 17 of 18
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`c)
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`An order requiring the reformation of the Plan’s terms and the medical necessity
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`criteria utilized by Defendants to interpret and apply the terms of the Plan to ensure compliance
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`with MHPAEA;
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`d)
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`An order requiring disgorgement of the funds wrongly withheld by each Defendant
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`from participants and beneficiaries of the Plan and Anthem insured plans as a result of Defendants’
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`violations of MHPAEA;
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`e)
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`An order requiring an accounting by Defendants of the funds wrongly withheld by
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`each Defendant from participants and beneficiaries of the Plan as a result of Defendants’
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`MHPAEA violations;
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`f)
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`An order based on the equitable remedy of surcharge requiring Defendants to
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`provide payment to Plaintiffs as make-whole relief for their loss;
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`g)
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`An order equitably estopping Defendants from denying Plaintiffs’ claims in
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`violation of MHPAEA; and
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`h)
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`An order providing restitution from Defendants to Plaintiffs for their losses arising
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`out of Defendants’ violations of MHPAEA.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiffs demand judgment against Defendants in an amount to be proven