Case 2:20-cv-00122-JNP-JCB Document 27 Filed 03/05/21 PageID.118 Page 1 of 18
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF UTAH
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`NATHAN W., individually and on behalf of
`B.W., a minor,
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` Plaintiffs,
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`v.
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`ANTHEM BLUECROSS BLUESHIELD OF
`WISCONSIN, et al.,
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` Defendants.
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`MEMORANDUM DECISION AND
`ORDER DENYING DEFENDANTS’
`PARTIAL MOTION TO DISMISS
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`Case No. 2:20-cv-00122-JNP-JCB
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`District Judge Jill N. Parrish
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`Defendants Blue Cross Blue Shield of Wisconsin, doing business as Anthem Blue Cross
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`and Blue Shield (“Anthem”), Aurora Health Care, Inc. (“Aurora”), and Advocate Aurora Health
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`Care, Inc. Health and Welfare Plan (collectively, “Defendants”) bring this Partial Motion to
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`Dismiss Plaintiffs’ Second Cause of Action for violation of the Mental Health Parity and Addiction
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`Equity Act of 2008 (the “Parity Act”), an amendment to ERISA codified at 29 U.S.C. § 1185a and
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`enforced through 29 U.S.C. § 1132(a)(3). ECF. No. 9. For the following reasons, the court denies
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`Defendants’ Partial Motion to Dismiss.
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`BACKGROUND
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`The Advocate Aurora Health Care, Inc. Health and Welfare Plan (the “Plan”) is a self-
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`funded employee welfare benefits plan subject to the Employee Retirement Income Security Act
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`of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. Anthem is a member of the Blue Cross Blue Shield
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`network of providers and was the third-party claims administrator for the Plan. Aurora primarily
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` FILED
`2021 MAR 5 PM 1:56
` CLERK
`U.S. DISTRICT COURT
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`Case 2:20-cv-00122-JNP-JCB Document 27 Filed 03/05/21 PageID.119 Page 2 of 18
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`handled all claims and appeals associated with this case. Nathan and his son, B.W. (collectively,
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`“Plaintiffs”), were and continue to be Plan participants and beneficiaries.
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`I.
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`B.W.’s Behavioral History and Outpatient Care
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`From an early age, B.W. has received therapy for concerning behavior. When he was five
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`years old, B.W. lost all contact with his biological father and began to say that he wanted to kill
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`himself when he became angry. He was taken to therapy and given a psychological evaluation.
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`B.W.’s therapist advised that he continue to be monitored. B.W. and his family moved to
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`Wisconsin, and Nathan eventually formally adopted B.W.
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`In school, B.W. struggled to make and keep friends and was physically and verbally
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`aggressive with other students when playing sports. B.W. would also cry easily when frustrated
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`and would often slam his bedroom door, pull his hair, and scratch his face and pick at his skin
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`when anxious. In one fit of rage, B.W. carved deep gouges in his bedframe. This fit prompted B.W.
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`to resume outpatient therapy. After a neuropsychological evaluation at the recommendation of his
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`pediatrician, B.W. was diagnosed with severe attention deficit hyperactivity disorder with a high
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`anxiety component and began taking medication.
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`B.W. attended a new school but was bullied in-person and online. He felt unsafe at school
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`and transferred to a different school. An attempt to homeschool B.W. failed because of his
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`resistance to the instruction. B.W. also continued to exhibit severe mood swings, anxiety, and
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`behavioral issues during this time and continued to work with a variety of mental health outpatient
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`treatment providers. B.W. again threatened suicide. Police were called but determined that B.W.
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`did not pose an imminent threat to his own safety and that he should remain home with supervision.
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`B.W. was later transferred to a private catholic school, where he would often fake injuries
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`for attention. His academic performance was also poor. In another neuropsychological exam, B.W.
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`performed exceptionally poorly in short-term recall, at a level equivalent to that of an individual
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`who had suffered from a traumatic brain injury. B.W. began refusing to take his medications,
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`stealing from others, vaping an unknown substance, experiencing heightened depression and
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`anxiety, and making concerning statements like, “maybe I just won’t be here anymore.” B.W. also
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`behaved inappropriately toward girls, often soliciting nude photos and then lying about his
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`behavior. B.W. was suspended from school for three days for insubordination, and, upon his return,
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`was reported for allegedly providing a vaping device to another student. In response, B.W.
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`threatened that he would “find the snitch and put a bullet in his head.” The school told Nathan that
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`B.W. was considered a high-risk individual and thus had two options: either voluntarily withdraw
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`from the school, or be expelled. B.W. chose the former.
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`II.
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`Denial of Coverage for Elevations Treatment
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`When outpatient intervention proved to be unsuccessful and B.W.’s behavior worsened, he
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`was admitted to Elevations Residential Treatment Center (“Elevations”). Elevations is a licensed
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`treatment facility located in Utah that provides sub-acute inpatient treatment to adolescents with
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`mental health, behavioral, and/or substance abuse problems. B.W. received medical care and
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`treatment at Elevations from January 21, 2019 to March 27, 2019.
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`On January 23, 2019, Nathan received a letter from Aurora informing him that, based on
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`an evaluation from external reviewer AllMed, coverage for B.W.’s treatment at Elevations would
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`be denied. Aurora explained that it did not appear that B.W. had tried lower levels of care, such as
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`an intensive outpatient program (“IOP”) or a partial hospitalization program (“PHP”), or that there
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`was imminent harm necessitating residential care. Accordingly, Aurora wrote1 that B.W. “can be
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`appropriately managed at a lower level of care,” and “[t]he requested level of care is not identified
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`to be medically necessary at this time.” ECF No. 2 ¶ 21.
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`Nathan appealed this denial on April 23, 2019. Nathan objected that he had not been given
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`the copy of the reviewer report that he had requested and argued that Aurora’s guidelines violated
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`generally accepted standards of medical practice by requiring patients to exhibit acute psychiatric
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`symptoms to qualify for sub-acute care. Nathan also objected to Aurora’s “fail-first” protocol,
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`which required B.W. to first attempt a lower level of treatment before attempting residential
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`treatment. Citing the Parity Act, Nathan argued that the denial amounted to a non-quantitative
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`treatment limitation, that Aurora did not require the acute or “fail-first” criteria for analogous
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`medical/surgical care at skilled nursing facilities and inpatient rehabilitation centers, and so Aurora
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`therefore could not impose such requirements on intermediate level mental health treatment
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`programs. Moreover, Nathan argued that B.W.’s treatment met the definition of medical necessity
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`as defined by the Plan based on his continued behavioral struggles and discharge summary from
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`Elevations. Nathan also stated that Elevations was the most cost-effective option for the level of
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`care that B.W. needed and was necessary to prevent further escalation of B.W.’s behaviors and
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`more intensive treatment in the future. If the denial was upheld, Nathan requested that he be
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`provided with “a copy of the documents under which the Plan was operated, including the specific
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`reasons for the determination, any corresponding supporting evidence, any administrative service
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`1 In deciding a motion to dismiss for failure to state a claim, the court may consider “documents
`that are referred to in the complaint if the documents are central to the plaintiff’s claim and the
`parties do not dispute the documents’ authenticity.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th
`Cir. 2010) (citation omitted). For these reasons, the court considers the benefits denial
`correspondence excerpted by Plaintiffs in deciding the pending motion.
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`agreements that existed, any clinical guidelines or medical necessity used to evaluate the claim,
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`the Plan’s criteria for skilled nursing, hospice, and inpatient rehabilitation facilities, and any report
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`from any physician or other professional concerning the claim” (collectively, the “Plan
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`Documents”). ECF No. 2 ¶ 30.
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`Following an independent review organization’s evaluation of Nathan’s appeal, Aurora
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`upheld the denial of coverage for B.W.’s treatment. The organization found that B.W.’s treatment
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`at Elevations was not medically necessary because there was a “lack of evidence of symptom
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`severity at the time of admission that would require the use of residential treatment in a 24 hour a
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`day setting.” ECF No. 2 ¶ 32. The organization also stated that there was “a lack of detail” as to
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`whether B.W.’s reported symptoms were present at the time of or immediately preceding his
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`admission to Elevations. Id. In particular, the organization concluded that there was “no indication
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`of ongoing plans or intent to harm others,” B.W.’s “level of impulsivity appears to be of moderate
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`level,” there was “no current history of significant aggression or other inappropriate behaviors of
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`a severity that would require observation and treatment around the clock,” and there was “no
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`evidence of severe depression or anxiety, and no evidence of recent deterioration of functioning.”
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`Id. For these reasons, the organization found that “the recommended level of care would be either
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`[IOP] or [PHP].” Id. ¶ 31.
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`III. Denial of Coverage for DRA Treatment
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`On March 27, 2019, B.W. began treatment at Diamond Ranch Academy (“DRA”). Like
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`Elevations, DRA is a licensed treatment facility located in Utah that provides sub-acute inpatient
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`treatment to adolescents with mental health, behavioral, and/or substance abuse problems. As it
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`did with Elevations, Aurora denied coverage for B.W.’s treatment at DRA. In its April 17, 2019
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`denial letter, Aurora stated that two unidentified external reviewers found that B.W.’s treatment
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`“did not require 24 hour residential level of care intensity” and “medical necessity is not met.”
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`ECF No. 2 ¶ 34. These findings were based on B.W.’s denial of suicidal and homicidal ideation;
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`lack of self-harming, physical aggression, psychosis, or comorbid substance abuse; medical
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`stability and toleration of medications; and capability of accomplishing daily living activities.
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`Nathan appealed Aurora’s denial on August 9, 2019. Nathan objected that the letter did not
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`specify dates of service that were denied or identify the reviewers, nor had he been provided with
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`a copy of the reviewers’ report. As with his previous appeal, Nathan argued that Aurora was
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`requiring patients to exhibit acute psychiatric symptoms to qualify for sub-acute mental health care
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`in violation of generally accepted standards of medical practice. Nathan averred that this amounted
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`to a nonquantitative treatment limitation, as similar requirements were not imposed on sub-acute
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`medical services such as skilled nursing care. Nathan again argued that B.W.’s treatment met the
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`requirements for medical necessity.
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`On September 12, 2019, Aurora upheld its denial. Aurora found that the medical necessity
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`requirement was not met. Aurora quoted an excerpt from the Medically Necessary or Medical
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`Necessity portion of the summary plan description and concluded that “[t]he recommended level
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`of care would be either [IOP] or [PHP].” ECF No. 2 ¶ 39. An external review report from Prest &
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`Associates, LLC found that medical necessity was not met for the following reasons:
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`1. There is no danger to self or others. There is no suicidal ideation,
`homicidal
`ideation, or self-harm behavior. There
`is no
`aggressive behavior toward self or others.
`2. There are no acute medical symptoms or acute psychiatric
`symptoms requiring monitoring in a 24-hour setting. There is no
`active substance use condition complicating treatment.
`3. The patient exhibited some social impairment, difficulty with
`moral reasoning and judgment, as well as problems with
`accountability,
`family
`interactions,
`and
`self-awareness.
`However, the patient was able to access support with
`participating in programming. His family was involved in
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`treatment. Continued treatment, including individual therapy,
`family therapy, social thinking, consideration of attachments,
`and consideration of Multisystemic Therapy (MST) could safely
`and adequately be addressed in a less restrictive setting, such as
`consideration of a mental health partial hospitalization or
`intensive outpatient program.
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`Id. ¶ 40.
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`As a result of Aurora’s coverage denials, Nathan incurred medical expenses in excess of
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`$100,000. And, despite Nathan’s requests, Anthem has still failed to produce copies of the Plan
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`Documents, “including any medical necessity criteria for mental health and substance use disorder
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`treatment and for skilled nursing or rehabilitation facilities.” ECF No. 2 ¶ 43.
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`IV.
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`Plaintiffs’ Claims
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`Having exhausted their pre-litigation appeal obligations under the Plan and ERISA,
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`Plaintiffs filed their Complaint on February 24, 2020, asserting two causes of action: (1) recovery
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`of benefits under 29 U.S.C. § 1132(a)(1)(B); and (2) violation of the Parity Act under 29 U.S.C.
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`§ 1132(a)(3). As part of their Parity Act claim, Plaintiffs allege that the Plan’s medical necessity
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`criteria for intermediate level mental health treatment benefits are more stringent than the medical
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`necessity criteria the Plan applies to intermediate level medical or surgical benefits. Plaintiffs
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`identify medical/surgical treatment analogues that are covered by the Plan (sub-acute inpatient
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`treatment settings such as skilled nursing facilities, inpatient hospice care, and rehabilitation
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`facilities) and allege that Anthem does not restrict coverage for these analogues “based on medical
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`necessity, geographic location, facility type, provider specialty, or other criteria in the manner
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`Anthem excluded coverage of treatment for B.[W.] at Elevations and DRA.” ECF No. 2 ¶ 54.
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`Specifically, Plaintiffs allege that Anthem’s reviewers improperly used acute medical
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`necessity criteria—such as requiring suicidal or homicidal ideation or “acute psychiatric
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`symptoms”—to evaluate the non-acute treatment that B.W. received. In contrast, the Plan does not
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`use acute medical necessity criteria to evaluate analogous sub-acute inpatient medical/surgical
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`care.2 Plaintiffs argue that Defendants’ conduct amounts to a disparity in treatment limitations
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`between mental health care coverage and analogous medical/surgical care. On May 4, 2020,
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`Defendants moved to dismiss Plaintiffs’ second cause of action under Federal Rule of Civil
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`Procedure 12(b)(6), arguing that Plaintiffs failed to state a claim for violation of the Parity Act.
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`LEGAL STANDARD
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`Dismissal of a claim under Federal Rule of Civil Procedure 12(b)(6) is appropriate where
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`the plaintiff fails to “state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).
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`When considering a motion to dismiss for failure to state a claim, a court “accept[s] as true all
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`well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to
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`the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013)
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`(citation omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual
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`matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
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`556 U.S. 662, 678 (2009) (citation omitted). The complaint must allege more than labels or legal
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`conclusions, and its factual allegations “must be enough to raise a right to relief above the
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`speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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`2 Plaintiffs also allege that the Plan improperly relied on the involvement of B.W.’s family in his
`treatment and imposed a “fail-first” requirement in denying coverage. ECF No. 2 ¶¶ 57–58.
`Because the court ultimately finds that Plaintiffs have plausibly alleged a Parity Act claim based
`on Defendants’ use of acute medical necessity criteria in evaluating sub-acute mental health care,
`the court does not evaluate Plaintiffs’ allegations related to B.W.’s family involvement and the
`“fail-first” requirement.
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`DISCUSSION
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`Defendants contend that Plaintiffs fail to state a Parity Act claim. Under a three-part Parity
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`Act claim test, Defendants argue that Plaintiffs failed to satisfy the first and third elements of the
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`test. That is, Defendants argue that Plaintiffs’ Parity Act claim should be dismissed because they
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`failed to “identify a specific treatment limitation on mental health benefits,” and “plausibly allege
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`a disparity between the treatment limitation on mental health/substance abuse benefits as compared
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`to the limitations that defendants would apply to the covered medical/surgical analog.” ECF No. 9
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`at 8 (citation omitted). Plaintiffs respond that they have adequately pleaded a Parity Act violation
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`because they have alleged that Anthem imposed treatment limitations on B.W.’s mental health care
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`and that the same limitations are not applied to analogous medical/surgical care.
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`I.
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`The Parity Act
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`The Parity Act is an amendment to ERISA enforceable through a cause of action under 29
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`U.S.C. § 1132(a)(3). Joseph F. v. Sinclair Servs. Co., 158 F. Supp. 3d 1239, 1259 n.118 (D. Utah
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`2016). “The Parity Act was passed to prevent insurance providers’ disparate treatment of ‘mental
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`health and substance use disorders as compared to . . . medical and surgical conditions.’” David S.
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`v. United Healthcare Ins. Co., No. 2:18-CV-803, 2019 WL 4393341, at *3 (D. Utah Sept. 13, 2019)
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`(unpublished) (citation omitted); see also Munnelly v. Fordham Univ. Faculty, 316 F. Supp. 3d
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`714, 728 (S.D.N.Y. 2018) (“Essentially, the Parity Act requires ERISA plans to treat sickness of
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`the mind in the same way that they would a broken bone.”).
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`The Parity Act provides:
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`In the case of a group health plan (or health insurance coverage
`offered in connection with such a plan) that provides both medical
`and surgical benefits and mental health or substance use disorder
`benefits, such plan or coverage shall ensure that -- . . . the treatment
`limitations applicable to such mental health or substance use
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`disorder benefits are no more restrictive than the predominant
`treatment limitations applied to substantially all medical and
`surgical benefits covered by the plan (or coverage) and there are no
`separate treatment limitations that are applicable only with respect
`to mental health or substance use disorder benefits.
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`29 U.S.C. § 1185a(a)(3)(A)(ii). “Treatment limitations” under the Parity Act include “both
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`quantitative treatment limitations, which are expressed numerically (such as 50 outpatient visits
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`per year), and nonquantitative treatment limitations, which otherwise limit the scope or duration
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`of benefits for treatment under a plan or coverage.” 29 C.F.R. § 2590.712(a); see also 29 U.S.C.
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`§ 1185a(a)(3)(B)(iii) (defining “treatment limitations”). Examples of nonquantitative treatment
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`limitations include “restrictions based on geographic location, facility type, provider specialty, and
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`other criteria that limit the scope and duration of benefits for services provided under the plan or
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`coverage.” 29 C.F.R. § 2590.712(c)(4)(ii)(H). And, with respect to mental health coverage, the
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`Parity Act’s implementing regulations provide that:
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`[a] group health plan (or health insurance coverage) may not impose
`a nonquantitative treatment limitation with respect to mental health
`or substance use disorder benefits in any classification unless, under
`the terms of the plan (or health insurance coverage) as written and
`in operation, any processes, strategies, evidentiary standards, or
`other factors used in applying the nonquantitative treatment
`limitation to mental health or substance use disorder benefits in the
`classification are comparable to, and are applied no more stringently
`than, the processes, strategies, evidentiary standards, or other factors
`used in applying the limitation with respect to medical/surgical
`benefits in the classification.
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`Id. § 2590.712(c)(4)(i).
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`“An insurance provider violates the Parity Act by using a nonquantitative limitation for
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`mental health treatment that is more restrictive than the nonquantitative limitation applied to
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`medical health treatments.” David S., 2019 WL 4393341, at *3 (citations omitted). Providers can
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`therefore violate the Parity Act in two ways: “facially, by writing an offending treatment limitation
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`into the plan; and in application, by applying an offending treatment limitation to deny coverage.”
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`Id. (citations omitted). “To sufficiently plead a facial claim, the plaintiff ‘must correctly identify
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`[the plan’s express] limitation and compare it to a relevant analogue.’” Jeff N. v. United HealthCare
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`Ins. Co., No. 2:18-CV-710, 2019 WL 4736920, at *3 (D. Utah Sept. 27, 2019) (unpublished)
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`(citation omitted). “To state a plausible claim under [an as-applied] theory, a plaintiff may allege
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`that a defendant differentially applies a facially neutral plan.” Id. at *4 (citation omitted). “[A]t the
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`very least, a plaintiff must identify the treatments in the medical [or] surgical arena that are
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`analogous to the sought-after mental health [or] substance abuse benefit and allege that there is a
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`disparity in their limitation criteria.” Id. (citation omitted).
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`II.
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`Alleging a Parity Act Claim
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`Defendants articulate a three-part test to state a claim for a Parity Act violation:
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`Parity Act plaintiffs must (1) identify a specific treatment limitation
`on mental health benefits; (2) identify medical/surgical care covered
`by the plan that is analogous to the mental health/substance abuse
`care for which the plaintiffs seek benefits; and (3) plausibly allege a
`disparity
`between
`the
`treatment
`limitation
`on mental
`health/substance abuse benefits as compared to the limitations that
`defendants would apply to the covered medical/surgical analog.
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`Johnathan Z. v. Oxford Health Plans, No. 2:18-CV-383, 2020 WL 607896, at *13 (D. Utah. Feb.
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`7, 2020) (unpublished) (citation omitted). Plaintiffs do not object to this formulation.
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`“[T]here is no clear law on what is required to state a claim for a Parity Act violation.”
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`Michael D. v. Anthem Health Plans of Ky., Inc., 369 F. Supp. 3d 1159, 1174 (D. Utah 2019).
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`Although a four-part test3 has been applied to Parity Act claims within the Tenth Circuit, this court
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`
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`3 The four-part test for a Parity Act claim is frequently articulated as follows:
`To state a Parity Act violation, a plaintiff must show that: (1) the
`relevant group health plan is subject to the Parity Act; (2) the plan
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`previously has observed that the four-part test and the three-part test are “materially
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`indistinguishable, prompting only slightly different versions of the same basic question” of
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`whether “the ERISA plan or the claims administrator treated benefits determinations for mental
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`health/substance abuse care less favorably than the plan or the claims administrator treats benefits
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`determinations for analogous, covered medical/surgical care.” Johnathan Z., 2020 WL 607896, at
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`*13 n.9. Thus, the three-part test “may be preferred going forward.” Id.
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`Because the four-part and the three-part tests invoke the same essential inquiry and
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`Plaintiffs have not objected to the three-part test, the court will apply the three-part test in
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`evaluating Plaintiffs’ Complaint. Because Defendants concede that Plaintiffs have satisfied the
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`second element of the test (ECF No. 9 at 8), the court considers only whether Plaintiffs have
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`adequately pleaded facts to satisfy the first and third elements of the test. As set forth in the
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`following analysis, the court finds that Plaintiffs’ allegations satisfy both elements.
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`III. Element 1: Plaintiffs Have Identified a Specific Treatment Limitation on Mental
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`Health Benefits
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`To state a Parity Act claim, a plaintiff must first identify a specific treatment limitation on
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`the mental health care received. David P. v. United Healthcare Ins. Co., No. 2:19-CV-225, 2020
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`WL 607620, at *16 (D. Utah Feb. 7, 2020) (unpublished). Defendants argue that Plaintiffs’ Parity
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`
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`provides both medical/surgical benefits and mental health or
`substance use disorder benefits; (3) the plan includes a treatment
`limitation for mental health or substance use disorder benefits that
`is more restrictive than medical/surgical benefits; and (4) the mental
`health or substance use disorder benefit being limited is in the same
`classification as the medical/surgical benefit to which it is being
`compared.
`Michael D., 369 F. Supp. 3d at 1174.
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`Act claim should be dismissed because Plaintiffs fail to quote or paraphrase “any Plan terms to
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`support their allegations—nor can they.” ECF No. 9 at 10–11. And, even if Plaintiffs are making
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`an as-applied challenge, Defendants cite to decisions from other districts and argue that Plaintiffs
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`still must identify the relevant treatment limitation in the Plan terms or the administrative record.
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`They argue that Plaintiffs have failed to do so, and thus any facial or as-applied challenge fails.
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`Plaintiffs respond that they addressed Anthem’s duty under the Plan terms in paragraphs 23 and
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`24 of their Complaint, quoted or paraphrased portions of the “medical necessity” definition in the
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`summary plan description in paragraph 26, and quoted the full Plan definition of “medical
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`necessity” in paragraph 39. Plaintiffs state that they are raising an as-applied challenge under the
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`Parity Act and cite to David P. as support that they sufficiently alleged an as-applied challenge.
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`
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`In David P., defendants argued that plaintiffs had failed to allege the first element of a
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`Parity Act claim because they “[did] not identify any Plan terms to support their allegations—nor
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`can they.” 2020 WL 607620, at *16. However, this court noted that, “[u]nder Parity Act regulations
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`and a long list of this court’s prior decisions, Plaintiffs do not need to identify a specific unequal
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`limitation in the terms of their benefits and can pursue ‘as-applied’ challenges. Id. (citing 29 C.F.R.
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`§ 2590.712(c)(4)(i)). All plaintiffs must do is “demonstrate that the Defendants imposed ‘a
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`nonquantitative treatment limitation with respect to mental health or substance use disorder
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`benefits . . . under the terms of the plan (or health insurance coverage) as written and in operation’
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`through ‘any processes, strategies, evidentiary standards, or other factors’ that ‘are applied . . .
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`more stringently than, the processes, strategies, evidentiary standards, or other factors used in
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`applying the limitation with respect to medical/surgical benefits.’” Id. (quoting 29 C.F.R.
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`§ 2590.712(c)(4)(i)). This court concluded that plaintiffs had sufficiently identified a specific
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`treatment limitation on mental health/substance abuse benefits when they “plausibly allege[d] that
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`[defendant] applied its facially neutral medical necessity requirements in a way that required them
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`to ‘satisfy acute care medical necessity criteria in order to obtain coverage for residential
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`treatment’ for the subacute mental health/substance abuse care . . . received.” Id. Further, the
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`plaintiffs had alleged that, in denying benefits, defendants’ “reviewers stated that residential
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`treatment center care was not medically necessary . . . in part because [the plaintiff] ‘did not want
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`to hurt herself,’ ‘did not want to hurt others,’ and she was ‘not having any serious mental health
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`issues.’” Id.
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`As it did in David P., the court finds that Plaintiffs have pleaded sufficient facts to identify
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`a specific treatment limitation on the mental health care that B.W. received. Like the plaintiffs in
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`David P., Plaintiffs have made an as-applied Parity Act challenge and have plausibly alleged that
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`Defendants applied more stringent criteria in denying benefits for B.W.’s care at mental
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`health/substance abuse residential centers than they would have applied had B.W. sought
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`analogous medical/surgical care. Specifically, Plaintiffs have alleged that “Anthem’s reviewers
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`improperly utilized acute medical necessity criteria to evaluate the non-acute treatment that B.[W.]
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`received.” ECF No. 2 ¶ 55. Plaintiffs have also alleged that Defendants denied coverage of B.W.’s
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`residential treatment at Elevations and DRA because Defendants’ reviewers found that such
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`treatment was not medically necessary due in part to the absence of suicidal and homicidal
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`ideation, self-harming, physical aggression, or danger to self or others on the part of B.W.
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`Essentially identical allegations were sufficient in David P. to satisfy the first element of a Parity
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`Act claim, and the same is true here.
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`IV.
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`Element 3: Plaintiffs Have Plausibly Alleged a Disparity Between Treatment
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`Limitations on Mental Health/Substance Abuse Benefits and the Medical/Surgical
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`Analog
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`To satisfy the third element of a Parity Act claim, a plaintiff “must plausibly allege a
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`disparity between the specified treatment limitation applied to the mental health/substance abuse
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`services for which they sought benefits as compared to the treatment limitations applied to the
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`covered medical/surgical analog.” David P., 2020 WL 607620, at *17 (citation omitted).
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`Additionally, to state a plausible Parity Act claim, “a plaintiff need only plead as much of [his]
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`prima facie case as possible based on the information in [his] possession.” Timothy D. v. Aetna
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`Health & Life Ins. Co., No. 2:18-CV-753, 2019 WL 2493449, at *3 (D. Utah June 14, 2019)
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`(unpublished) (citation omitted). This is because “[t]he nature of Parity Act claims is that they
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`generally require further discovery to evaluate whether there is a disparity between the availability
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`of treatments for mental health and substance abuse disorders and treatment for medical/surgical
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`conditions.” Id. at *4. Thus, “[c]ourts in this jurisdiction favor permitting Parity Act claims to
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`proceed to discovery to obtain evidence regarding a properly pleaded coverage disparity.” Michael
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`W. v. United Behavioral Health, 420 F. Supp. 3d 1207, 1235 (D. Utah 2019).
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`Defendants argue that Plaintiffs fail to allege a coverage disparity because Plaintiffs only
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`make insufficient, conclusory allegations comparing the treatment limitations imposed on the
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`mental health/substance abuse care that B.W. received and those imposed on the medical/surgical
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`analog. Plaintiffs respond that they did allege a coverage disparity: acute criteria were applied to
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`coverage for sub-acute mental health/substance abuse care, while acute criteria were not applied
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`to coverage of sub-acute medical/surgical care (e.g., in a skilled nursing facility or rehabilitation
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`center). Plaintiffs also allege that Defendants “failed to produce a copy of the Plan Documents,
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`including any medical necessity criteria for mental health and substance use disorder treatment
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`and for skilled nursing or rehabilitation facilities in spite of Nathan’s requests.” ECF No. 2 ¶ 43.
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`The court finds that Plaintiffs’ allegations of a coverage disparity are sufficient to satisfy
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