Case 2:20-cv-00283-TS-DBP Document 26 Filed 01/29/21 PageID.647 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
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`PATRICK S. and NOAH S.,
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`Plaintiffs,
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`v.
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`UNITED BEHAVIORAL HEALTH d/b/a
`OPTUM and MOTION PICTURE
`INDUSTRY HEALTH PLAN FOR
`ACTIVE PARTICIPANTS,
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`Defendants.
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`FOR THE DISTRICT OF UTAH
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`
`
`MEMORANDUM DECISION AND
`ORDER DENYING
`DEFENDANTS’ MOTION TO
`DISMISS PLAINTIFFS’ SECOND
`CAUSE OF ACTION
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`Case No. 2:20-CV-283-TS
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`District Judge Ted Stewart
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`This matter is before the Court on Defendants United Behavioral Health (“UBH”) and
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`Motion Picture Industry Health Plan for Active Participants’ (collectively, “Defendants”) Motion
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`to Dismiss Plaintiffs’ Second Cause of Action, which is a claim for a violation of the Mental
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`Health Parity and Addiction Equity Act of 2008 (“Parity Act”). For the following reasons, the
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`Court will deny the Motion.
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`I.
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`BACKGROUND
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`In their Complaint, Plaintiffs Patrick S. and Noah S. challenge Defendants’ denial of
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`insurance benefits for medical care and treatment Noah received from 2017 to 2018. Patrick is
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`Noah’s father and is a participant in the Plan, which provides health benefits for participants and
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`their dependents.1 Following a brief stay in an acute inpatient psychiatric unit, Noah was
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`1 Docket No. 2 ¶¶ 1–2.
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`1
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`admitted to Evoke Wilderness Program (“Evoke”) on February 9, 2017.2 Noah remained at
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`Evoke until April 27, 2017.3 Then, on April 28, 2017, Noah was admitted to Catalyst Residential
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`Treatment (“Catalyst”) and remained there until July 31, 2018.4
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`On August 18, 2017, UBH denied coverage of Noah’s treatment at Evoke because it
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`determined that wilderness therapy programs are “experimental or unproven treatment.”5 Patrick
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`appealed, and on March 28, 2018, UBH maintained the denial of coverage for the treatment at
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`Evoke because Noah was not at risk for harm to himself or others, was medically stable, was not
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`experiencing withdrawal symptoms, was not under the care of a psychiatrist, and did not require
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`24-hour medical or psychiatric care, and because outdoor behavioral healthcare programs are
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`experimental and unproven.6 Patrick submitted a second appeal, but UBH denied coverage of
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`Noah’s treatment at Evoke again on July 12, 2018, relying on the same justifications.7
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`UBH covered Noah’s treatment at Catalyst from April 28, 2017 through May 26, 2017,
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`but denied coverage from May 27, 2017 and beyond.8 According to UBH, Noah’s conditions did
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`not meet the Level of Care Guidelines because he was medically stable and his behavior was
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`better.9 But UBH authorized ongoing partial hospitalization treatment for Noah.10 Patrick
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`appealed the denial of coverage with letters from Noah’s psychologists recommending
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`2 Id. ¶¶ 5, 18–19.
`3 Id. ¶ 19.
`4 Id. ¶ 5.
`5 Id. ¶ 27.
`6 Id. ¶ 37.
`7 Id. ¶¶ 39, 43.
`8 Id. ¶¶ 44–45.
`9 Id. ¶ 45.
`10 Id.
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`2
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`residential treatment as medically necessary and Noah’s medical records that indicated an
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`ongoing need to remain in a residential treatment setting.11 Patrick also argued that Noah’s
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`conditions met UBH’s residential treatment medical necessity criteria.12 On June 21, 2018, UBH
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`maintained its denial of coverage for the same reasons it originally denied coverage.13 Patrick
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`submitted a second appeal, but UBH denied coverage for a third time with no new reasoning.14
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`After their unsuccessful appeals, Plaintiffs submitted their Complaint against Defendants,
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`claiming violations of the Employment Retirement Income Security Act of 1974 and the Parity
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`Act. In response, Defendants filed this motion to dismiss the Parity Act claim for failure to state
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`a claim.
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`II.
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`STANDARD OF REVIEW
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`Under Rule 12(b)(6), a court may dismiss a claim when the complaint fails to state a
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`claim upon which relief can be granted.15 “‘[L]abels and legal conclusions’ or ‘a formulaic
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`recitation of the elements of a cause of action’” alone are not sufficient to survive a motion to
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`dismiss.16 Rather, “a complaint must contain sufficient factual matter, accepted as true, to state a
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`claim to relief that is plausible on its face.”17 “A claim has facial plausibility when the pleaded
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`factual content allows the court to draw the reasonable inference that the defendant is liable for
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`11 Id. ¶¶ 46–47.
`12 Id. ¶ 48.
`13 Id. ¶ 49.
`14 Id. ¶¶ 51–55.
`15 Fed. R. Civ. P. 12(b)(6); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).
`16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
`544, 555 (2007)).
`17 Id. (internal citation and quotation marks omitted).
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`the misconduct alleged.”18 Put simply, at this stage the factual allegations are assumed to be true,
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`and “relief must follow from the facts alleged.”19
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`III.
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`ANALYSIS
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`With their Motion, Defendants challenge Plaintiffs’ Parity Act claim. “Congress enacted
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`the [Parity Act] to end discrimination in the provision of insurance coverage for mental health
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`and substance use disorders as compared to coverage for medical and surgical conditions in
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`employer-sponsored group health plans.”20 In relevant part, the Parity Act states,
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`In the case of a group health 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 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.21
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`“[T]here is no clear law on how to state a claim for a Parity Act violation,” so “district courts
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`have continued to apply their own pleading standards.”22 Notably, “[c]ourts in this jurisdiction
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`favor permitting Parity Act claims to proceed to discovery to obtain evidence regarding a
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`properly pleaded coverage disparity.”23
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`18 Id.
`19 Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
`20 Michael D. v. Anthem Health Plans of Ky., Inc., 369 F. Supp. 3d 1159, 1174 (D.
`Utah 2019) (quoting Am. Psychiatric Ass’n v. Anthem Health Plans, Inc., 821 F.3d 352, 356 (2d
`Cir. 2016)).
`21 29 U.S.C. § 1185a(a)(3)(A)(ii).
`22 Michael W. v. United Behavioral Health, 420 F. Supp. 3d 1207, 1234 (D. Utah
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`2019).
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`23 Id. at 1235.
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`Citing Welp v. Cigna Health and Life Insurance Company24 and a handful of other cases,
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`Defendants suggest the Court should require Plaintiffs to “(1) identify a specific treatment
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`limitation in [the] plan applicable to behavioral health treatment; (2) identify services in the
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`medical or surgical arena that are both covered under the plan and analogous to the specific
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`behavioral health services at issue; and (3) plausibly allege a disparity in the limitation criteria
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`applicable to this analogous medical or surgical service on the one hand and the mental health or
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`substance use treatment on the other.”25 Defendants further argue that Plaintiffs do not
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`sufficiently plead any of these elements in their Complaint.26 Plaintiffs generally agree with
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`these three elements but argue that the third element should not include the word “plausibly” out
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`of concern that the Court will improperly analyze the plausibility of the facts alleged in the
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`Complaint, exceeding the standard that is set forth in Twombly and Iqbal.27 However, this Court
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`has previously stated that plaintiffs must “plausibly allege” a disparity to state a Parity Act claim,
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`and there is no indication that this language improperly affected the motion to dismiss analysis.28
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`This Court has previously articulated other concerns about the pleading standard
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`described in Welp because it only applies to a facial Parity Act claim where the limitations on
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`mental health/substance abuse benefits are found in the plan.29 This Court has repeatedly
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`24 No. 17-80237-CIV, 2017 WL 3263138 (S.D. Fla. July 20, 2017) (unpublished).
`25 Docket No. 14, at 9–10.
`26 See id. at 2.
`27 Docket No. 18, at 6–7.
`28 See David P. v. United Healthcare Ins. Co., No. 2:19-cv-00225-JNP-PMW, 2020
`WL 607620, at *15 (D. Utah Feb. 7, 2020) (unpublished); Johnathan Z. v. Oxford Health Plans,
`No. 2:18-cv-383-JNP-PMW, 2020 WL 607896, at *13 (D. Utah Feb. 7, 2020) (unpublished);
`Charles W. v. United Behavioral Health, No. 2:18-cv-829-TC, 2019 WL 6895331, at *4 (D.
`Utah Dec. 18, 2019) (unpublished).
`29 See Kurt W. v. United Healthcare Ins. Co., No. 2:19-cv-223-CW, 2019 WL
`6790823, at *4 (D. Utah Dec. 12, 2019) (unpublished) (“Plaintiffs are not required to plead a
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`recognized that a Parity Act claim can be brought as either a facial challenge or an as-applied
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`challenge.30 In other words, the disparities in treatment limitations may be found in the language
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`of the plan or in application of the plan. Consistent with this principle, the Court will apply the
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`following standard: Plaintiffs must “(1) identify a specific treatment limitation on mental health
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`benefits, (2) identify medical/surgical care covered by the plan that is analogous to the mental
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`health/substance abuse care for which [Plaintiffs] seek benefits, and (3) plausibly allege a
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`disparity between the treatment limitation on mental health/substance abuse benefits as
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`compared to the limitations that [Defendants] would apply to the covered medical/surgical
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`analog.”31
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`A. Treatment Limitation
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`First, Plaintiffs must identify a specific treatment limitation on mental health or substance
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`abuse benefits. According to the relevant regulation, “[t]reatment limitations 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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`specific plan limitation in order to state a claim for violation of the Parity Act.”); Michael W.,
`420 F. Supp. 3d at 1235 (discussing several concerns about the Welp standard); Peter E. v.
`United HealthCare Servs., Inc., No. 2:17-cv-00435-DN, 2019 WL 3253787, at *3 (D. Utah July
`19, 2019) (unpublished).
`30 See William D. v. United Healthcare Ins. Co., No. 2:19-cv-00590-DBB-JCB, 2020
`WL 4747765, at *3 (D. Utah Aug. 17, 2020) (unpublished); Johnathan Z., 2020 WL 607896, at
`*14; Michael W., 420 F. Supp. 3d 1207 at 1235.
`31 Heather E. v. Cal. Physicians’ Servs., No. 2:19-cv-415-CW, 2020 WL 4365500, at
`*3 (D. Utah July 30, 2020) (unpublished) (quoting Nancy S. v. Anthem Blue Cross & Blue
`Shield, No. 2:19-cv-231-JNP-DAO, 2020 WL 2736023, at *3 (D. Utah May 26, 2020)
`(unpublished)); James C. v. Anthem Blue Cross & Blue Shield, No. 2:19-cv-38-CW, 2020 WL
`3452633, at *2 (D. Utah June 24, 2020) (unpublished) (quoting Nancy S., 2020 WL 2736023, at
`*3); David P., 2020 WL 607620, at *15; Johnathan Z., 2020 WL 607896, at *13–14 (applying
`the three-part test in a facial and as-applied context).
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`of benefits for treatment under a plan or coverage.”32 Treatment limitations can also be facial
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`limitations, arising from the written plan or processes, or as-applied limitations, arising from the
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`application of the plan.33
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`In response, Plaintiffs assert that the Complaint identifies five limitations that Defendants
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`applied to Noah’s mental health treatment. Four of these alleged limitations involve Defendants’
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`failures to explain themselves or take into account certain evidence when reviewing and denying
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`the claims. These failures are not necessarily limitations on treatment. However, Plaintiffs also
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`allege that the claim reviewers “utilized acute medical necessity criteria” as a limitation on
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`Noah’s treatment at Evoke and Catalyst.34 Plaintiffs support this allegation with language from
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`UBH that it denied coverage because Noah was not at risk for harm to himself or others, was
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`participating in treatment, was medically stable, and was not going through active withdrawals.
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`Despite Defendants’ argument, this is not a legal conclusion or a formulaic recitation of the
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`elements; it is a factual allegation about a limitation on Noah’s treatment. In addition, this Court
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`has repeatedly found that an allegation that the insurance plan applied acute medical necessity
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`requirements to the relevant mental health treatment is a sufficient factual allegation for a
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`treatment limitation.35 Thus, Plaintiffs sufficiently allege the first element of the claim.
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`B. Analogous Medical/Surgical Care
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`Second, Plaintiffs must identify medical/surgical care covered by the plan that is
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`analogous to the mental health/substance abuse care for which they seek benefits. Defendants
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`32 29 C.F.R. § 2590.712(a).
`33 See id. § 2590.712(c)(4)(iii); Johnathan Z., 2020 WL 607896, at *13.
`34 Docket No. 2 ¶ 73.
`35 Heather E., 2020 WL 4365500, at *3; David P., 2020 WL 607620, at *19;
`Johnathan Z., 2020 WL 607896, at *18; Kurt W., 2019 WL 6790823, at *6.
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`recognize that Plaintiffs identified subacute inpatient care such as skilled nursing facilities,
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`inpatient hospice care, and rehabilitation facilities as medical/surgical analogues to the treatment
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`Noah received at Evoke and Catalyst. But Defendants argue that these factual allegations are too
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`general and inaccurate. With this, Defendants are asking the Court to look to the merits of
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`Plaintiffs’ allegations, but that is not appropriate at the motion to dismiss stage of litigation.
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`Rather, the Court must accept these allegations as true at this stage.
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`Even so, when responding to a similar argument this Court has explained that “the
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`question of what medical/surgical care is analogous to the type of mental health/substance abuse
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`care for which Plaintiffs sought benefits—residential inpatient treatment—is not up for
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`debate.”36 Indeed, “[t]he Final Rules under the Parity Act states . . . that ‘[b]ehavioral health
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`intermediate services are generally categorized in a similar fashion as analogous medical
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`services; for example, residential treatment tends to be categorized in the same way as skilled
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`nursing facility care in the inpatient classification.’”37 Thus, on motions to dismiss this Court has
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`consistently determined that analogizing mental health residential treatment centers and
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`wilderness treatment programs to medical/surgical inpatient hospice and rehabilitation facilities
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`is sufficient to state a Parity Act claim.38 And Defendants do not suggest that the plan does not
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`36 David P., 2020 WL 607620, at *17.
`37 Id. (quoting Final Rules Under the Paul Wellstone and Pete Domenici Mental
`Health Parity and Addiction Equity Act of 2008; Technical Amendment to External Review for
`Multi-State Plan Program, 78 Fed. Reg. 68, 247 (Nov. 13, 2013)).
`38 Id.; Johnathan Z., 2020 WL 607896, at *15; K.K. v. United Behavioral Health, No.
`2:17-cv-01328-DAK, 2020 WL 262980, at *4 (D. Utah Jan. 17, 2020) (unpublished); K.H.B. ex
`rel. Kristopher D.B. v. UnitedHealthcare Ins. Co., No. 2:18-CV-00795-DN, 2019 WL 4736801,
`at *5 (D. Utah Sept. 27, 2019) (unpublished); Timothy D. v. Aetna Health & Life Ins. Co., No.
`2:18-cv-753-DAK, 2019 WL 2493449, at *4 (D. Utah June 14, 2019) (unpublished); Michael
`W., 420 F. Supp. 3d at 1236.
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`cover the medical/surgical treatment analogues Plaintiffs identified. Therefore, Plaintiffs
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`sufficiently allege the second element of their claim.
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`C. Disparity Between Treatment Limitations
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`Third, Plaintiffs must plausibly allege a disparity between the treatment limitation on
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`mental health/substance abuse benefits as compared to the limitations that Defendants would
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`apply to the covered medical/surgical analogues. Defendants argue that Plaintiffs have not
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`alleged a facial disparity or an as-applied disparity in the treatment limitations, but that is not the
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`case. Plaintiffs allege that Defendants do not require “patients to satisfy the medical necessity
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`criteria for acute inpatient treatment” for any of the medical/surgical analogues identified.39 Yet,
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`according to Plaintiffs, Defendants did apply the more stringent acute medical necessity criteria
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`to Noah’s mental health treatment. This is a factual allegation about the disparate treatment
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`limitations that are applied to the different kinds of treatment.
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`Plaintiffs do not provide specific, detailed allegations about the standards Defendants
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`apply to the medical/surgical analogues, but “a plaintiff need only plead as much of her prima
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`facie case as possible based on the information in her possession.”40 More detailed information
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`about the criteria for the medical/surgical analogues is not currently in Plaintiffs’ possession.41
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`Importantly, this Court has consistently held that an allegation like Plaintiffs’—that a defendant
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`insurance company applied acute medical necessity criteria to the subacute inpatient mental
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`health treatment but does not apply the acute standard to the subacute inpatient medical/surgical
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`39 Docket No. 2 ¶ 72.
`40 Timothy D., 2019 WL 2493449, at *3 (quoting Melissa P. v. Aetna Life Ins. Co.,
`2:18-cv-216-RJS-EJF, 2018 WL 6788521, at *2 (D. Utah Dec. 26, 2018) (unpublished)).
`41 See Melissa P., 2018 WL 6788521, at *3 (recognizing that a plaintiff would not be
`able to allege more specific details about the standards applied to the medical/surgical analogues
`unless the plaintiff “had personal experience with both standards”).
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`analogues—is sufficient to state a claim.42 Thus, Plaintiffs’ allegations satisfy the third element
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`of the claim.
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`D. Failure to Produce Documents
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`Finally, Defendants argue that the Court should disregard Plaintiffs’ allegations that
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`Defendants did not produce the documents Plaintiffs requested. This is not a necessary element
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`of the Parity Act claim and does not affect the outcome of the Motion, so the Court will not
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`address it.
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`It is therefore
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`IV.
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`CONCLUSION
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`ORDERED that Defendants’ Motion to Dismiss Plaintiffs’ Second Cause of Action
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`(Docket No. 14) is DENIED.
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`DATED January 29, 2021.
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`BY THE COURT:
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`________________________________________
`TED STEWART
`United States District Judge
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`42 Theo M. v. Beacon Health Options, No. 2:19-cv-364-JNP, 2020 WL 5500529, at *6
`(D. Utah Sept. 11, 2020) (unpublished); Heather E., 2020 WL 4365500, at *3; Denise M. v.
`Cigna Health, No. 2:19-CV-975-DAK, 2020 WL 3317994, at *2 (D. Utah June 18, 2020)
`(unpublished); M.S. v. Premera Blue Cross, No. 2:19-cv-199-RJS, 2020 WL 1692820, at *5 (D.
`Utah Apr. 7, 2020) (unpublished); David P., 2020 WL 607620, at *19; Peter E., 2019 WL
`6118422, at *3; Michael W., 420 F. Supp. 3d at 1237.
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