Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.2 Page 1 of 18
`
`Brian S. King, #4610
`Brent J. Newton, #6950
`Samuel M. Hall, #16066
`BRIAN S. KING, P.C.
`420 East South Temple, Suite 420
`Salt Lake City, UT 84111
`Telephone: (801) 532-1739
`Facsimile: (801) 532-1936
`brian@briansking.com
`brent@briansking.com
`samuel@briansking.com
`
`Attorneys for Plaintiffs
`
`THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH, CENTRAL DIVISION
`
`B.C., individually and on behalf of R.C. a
`minor,
`
`COMPLAINT
`
`Case No. 2:21-cv-00032 - JCB
`
`Plaintiffs,
`
`vs.
`
`UNITED HEALTHCARE INSURANCE
`COMPANY, UNITED BEHAVIORAL
`HEALTH and the CNA RETIREE
`CONSUMER DRIVEN HEALTH PLAN.
`
`Defendants.
`
`Plaintiff B.C. individually and on behalf of R.C. a minor, through her undersigned
`
`counsel, complains and alleges against Defendants United Healthcare Insurance Company,
`
`United Behavioral Health (collectively “United”) and the CNA Retiree Consumer Driven Health
`
`Plan (“the Plan”) as follows:
`
`PARTIES, JURISDICTION AND VENUE
`
`1. B.C. and R.C. are natural persons residing in Contra Costa County, California. B.C. is
`
`R.C.’s mother.
`
`1
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.3 Page 2 of 18
`
`2. United is an insurance company headquartered in Hennepin County, Minnesota and was
`
`the third party claims administrator for the Plan during the treatment at issue in this case.
`
`3. 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 1974 (“ERISA”). B.C. was a
`
`participant in the Plan and R.C. was a beneficiary of the Plan at all relevant times. B.C.
`
`and R.C. continue to be participants and beneficiaries of the Plan.
`
`4. R.C. received medical care and treatment at Change Academy Lake of the Ozarks
`
`(“CALO”) beginning on June 17, 2019. CALO is a licensed residential treatment facility
`
`located in Missouri, which provide sub-acute inpatient treatment to adolescents with
`
`mental health, behavioral, and/or substance abuse problems. CALO is a nationally
`
`acclaimed facility for the treatment of Reactive Attachment Disorder.
`
`5. United denied claims for payment of R.C.’s medical expenses in connection with his
`
`treatment at CALO.
`
`6. This Court has jurisdiction over this case under 29 U.S.C. §1132(e)(1) and 28 U.S.C.
`
`§1331.
`
`7. Venue is appropriate under 29 U.S.C. §1132(e)(2) and 28 U.S.C. §1391(c) based on
`
`ERISA’s nationwide service of process and venue provisions, and because United does
`
`business in Utah and across the United States. Finally, in light of the sensitive nature of
`
`the medical treatment at issue, it is the Plaintiffs’ desire that the case be resolved in the
`
`State of Utah where it is more likely their privacy will be preserved.
`
`8. The remedies the Plaintiffs seek under the terms of ERISA and under the Plan are for the
`
`benefits due under the terms of the Plan, and pursuant to 29 U.S.C. §1132(a)(1)(B), for
`
`appropriate equitable relief under 29 U.S.C. §1132(a)(3) based on the Defendants’
`
`
`
`2
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.4 Page 3 of 18
`
`violation of the Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”),
`
`an award of prejudgment interest, and an award of attorney fees and costs pursuant to 29
`
`U.S.C. §1132(g).
`
`BACKGROUND FACTS
`
`R.C.’s Developmental History and Medical Background
`
`9. R.C. was born in Guatemala and was adopted a few months later by B.C. R.C. had small
`
`bumps on his body which were initially assumed to be chicken pox, but were
`
`subsequently discovered to be flea bites across his entire body from his previous
`
`neglectful living environment.
`
`10. R.C. had an extreme fear of open spaces as well as noisy indoor places. He started seeing
`
`a psychiatrist around the time he was in the second grade and in the fourth grade he was
`
`diagnosed with ADHD and started seeing a different psychiatrist. R.C. had boundary
`
`issues and started to become aggressive and to isolate himself.
`
`11. Following an incident where R.C. reported other boys for watching pornographic videos
`
`during a school trip, R.C. was confronted by a teacher who extracted a false confession
`
`about the pornography from R.C. and sent him home early. After this, R.C. was
`
`ostracized and bullied by his peers, he started failing his classes and became increasingly
`
`aggressive at home, even biting family members. R.C. would refuse to show remorse for
`
`these incidents and would deny they even occurred.
`
`12. R.C. started being treated at an outpatient behavioral health program. On his first day on
`
`the way to the program, he grabbed the steering wheel while on the freeway and nearly
`
`caused a serious accident. R.C. started refusing to go to school and isolated himself in his
`
`
`
`3
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.5 Page 4 of 18
`
`room playing games. When B.C. confronted him, he became physically combative and
`
`violent.
`
`13. R.C. was discovered to be self-harming by cutting and would lie about where the cuts
`
`came from. R.C. also started expressing suicidal ideation and was subsequently
`
`hospitalized and sent to an acute inpatient unit before resuming outpatient treatment. R.C.
`
`continued to be aggressive and his younger brother started living away with his father for
`
`his protection.
`
`14. R.C. started binge eating and gained forty pounds over a two-month period. He also was
`
`caught stealing thousands of dollars from B.C. This behavior became so frequent that
`
`B.C. had to keep all of her credit cards and other financial items in a safety deposit box at
`
`the bank. R.C expressed no remorse for any of these actions and often refused to admit
`
`they had even happened.
`
`15. R.C. was admitted to CALO on June 17, 2019.
`
`CALO
`
`16. In a letter dated June 26, 2019, United denied payment for R.C.’s treatment. The letter
`
`erroneously denied payment for services rendered at “Rogers Memorial Hospital” instead
`
`of CALO. It is unclear if this is simply a typographical error or if United analyzed R.C.’s
`
`treatment as if he had been attending the wrong facility. The letter stated in part:
`
`Benefit coverage of Mental Health Residential care is not available on 06/17/2019
`and forward. The guidelines used in the decision are Optum Coverage
`Determination Guideline for Mental Health Residential and the Optum Common
`Criteria and Clinical Best Practices for All Levels of Care Guidelines. Your son
`has made some progress in past treatment. He has been participating more in
`therapy groups. He apparently needs more help with relationships. Doing this far
`from his home area can be a problem when he has to return home. It would likely
`be better for him to work on these issues near his home. The article entitled,
`“Principles of Care for Treatment of Children and Adolescents with Mental
`Illness in Residential Treatment Centers,” released in June 2010, by the American
`
`
`
`4
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.6 Page 5 of 18
`
`Academy of Child and Adolescent Psychiatry (AACAP), describes the industry
`standards (that is the generally accepted practices) for this level of care. The
`Introduction to the article begins with “The best place for children and
`adolescents is at home with their families. A child or adolescent with mental
`illness should be treated in the safest and least restrictive environment and needed
`services should be ‘wrapped-around’ to provide more intensive home or
`community-based services.” It seems that he can work on this in a Partial Hospital
`Program. This is available in his area. This would be covered. Attending a
`program near his home makes it easier for you to be actively involved in his care.
`
`17. On October 11, 2019, United sent a corrected version of the June 26, 2019, letter. The
`
`corrected version substituted CALO for Rogers Memorial Hospital.
`
`18. On April 1, 2020, B.C. submitted a level one appeal of the denial of payment for R.C.’s
`
`treatment at CALO. She reminded United of its responsibilities under ERISA including
`
`reviewing all of the information she provided, utilizing appropriately qualified reviewers,
`
`and providing her with a full, fair, and thorough review of the denial. She contended that
`
`United had not complied with its ERISA obligations thus far and had, for instance,
`
`reviewed the mental health needs of her adolescent son using a reviewer certified in adult
`
`psychiatry with no specialization in R.C.’s diagnoses.
`
`19. B.C. objected to United’s denial based on R.C. having made “some progress in past
`
`treatment” She contended that this was not a valid justification for the denial of payment.
`
`20. B.C. wrote that the quote United relied upon that “The best place for children and
`
`adolescents are at home with their families,” had been “cherry-picked” and taken out of
`
`context to support United’s conclusion. She pointed out that the full quote stated that
`
`individuals should be cared for in the least restrictive environment where they could be
`
`effectively treated, and oftentimes the severity of an individual’s psychiatric illness
`
`precluded them from receiving treatment in a community based setting.
`
`
`
`5
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.7 Page 6 of 18
`
`21. B.C. contended that United had lost credibility by deliberately manipulating the AACAP
`
`quote to support its position and omitting the parts of the quote that recommended a
`
`specialized facility such as a residential treatment center, and termed such treatment as,
`
`“[t]he best intervention for serious mental health that cannot be treated in the child’s
`
`home environment…”
`
`22. She argued that R.C. had not been able to be effectively treated at less intensive levels of
`
`care and that if R.C. could have been treated in his home environment then he would
`
`have been. She wrote that R.C. had been diagnosed with Reactive Attachment Disorder,
`
`an incredibly difficult-to-treat condition requiring specialized intervention. She wrote that
`
`she was not aware of any partial hospitalization programs in the entire country that
`
`treated Reactive Attachment Disorder, let alone one within her service area.
`
`23. She wrote that prior to his treatment at CALO, R.C. had been hospitalized in an acute
`
`inpatient unit, had been treated at a residential facility called Newport Academy from
`
`December 7, 2018, to January 20, 2019, and an outdoor behavioral health program called
`
`New Vision Wilderness from March 4, 2019, to June 14, 2019, without successfully
`
`resolving his symptoms. B.C. recounted an incident before R.C.’s admission to New
`
`Vision where he shot his father with a bb gun around ten times.
`
`24. She referenced a recent class action lawsuit, Wit et.al., v United Behavioral Health,
`
`wherein United’s clinical guidelines were found to violate generally accepted standards
`
`of care in a variety of ways, including overemphasizing acuity and crisis stabilization,
`
`and deliberately pushing its insureds into a lower level of care even when this was likely
`
`to be less effective.
`
`
`
`6
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.8 Page 7 of 18
`
`25. B.C. alleged that United continued to act in the same manner that caused it to be
`
`reprimanded in Wit. B.C. accused United of distorting the record and deliberately limiting
`
`residential treatment to a “short-term” duration though factors such as an undefined
`
`“progress” requirement, without taking into account R.C.’s actual treatment needs.
`
`26. She wrote that although United had revised its criteria following Wit, its criteria still
`
`made no effort to differentiate between adults and children, despite this being one of the
`
`factors that these guidelines were deemed to be unacceptable in Wit. She argued that R.C.
`
`suffered from a multitude of conditions and it was disingenuous to reduce his complex
`
`behavioral health profile to a select few factors such as “he apparently needs more help
`
`with relationships.”
`
`27. B.C. contended that R.C.’s treatment at CALO had been effective at treating his
`
`conditions and that he had gone there on the recommendation of his treatment team. She
`
`asked United to evaluate R.C.’s treatment in accordance with generally accepted
`
`standards of medical practice and the actual terms of the Plan.
`
`28. B.C. wrote that United appeared to be imposing a non-quantitative treatment limitation
`
`on R.C.’s treatment in violation of MHPAEA. She stated that MHPAEA required
`
`insurers to administer its mental health benefits “at parity” with comparable medical or
`
`surgical benefits.
`
`29. She identified skilled nursing facilities and inpatient rehabilitation as some of the medical
`
`or surgical analogues to residential treatment. She noted that while United had special
`
`criteria for residential treatment care, it did not appear to require individuals receiving
`
`treatment in skilled nursing or rehabilitation facilities to satisfy proprietary guidelines in
`
`order for their treatment to be approved.
`
`
`
`7
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.9 Page 8 of 18
`
`30. B.C. asked United to perform a parity analysis of the Plan to ensure compliance with
`
`MHPAEA and to provide her with a copy of the results of this analysis.
`
`31. B.C. included letters of medical necessity with the appeal. These included a letter dated
`
`February 4, 2020, from John Schinnerer Ph.D., which stated in part:
`
`Given the persistence of his symptoms over the years, including increased anger
`and impulsivity, increased social isolation, ODD1, suicidal ideation and despite
`continued attempts at therapy, outpatient treatment, inpatient treatment, and
`medication, a more intense level of treatment is necessary for his safety. A
`residential level of care would be necessary to achieve significant and lasting
`improvement of [R.C.]’s condition(s). I consider this to have been a medically
`necessary treatment course.
`
`32. B.C. requested that if United did not pay the claim that it provide her with the specific
`
`reasons for the determination as well as any corresponding evidence, any administrative
`
`service agreements that existed, the Plan’s mental health and substance use criteria, the
`
`Plan’s criteria for skilled nursing, hospice care, and inpatient rehabilitation, and any
`
`reports from any physician or other professional regarding the claim. (collectively the
`
`“Plan Documents”)
`
`33. In a letter dated May 1, 2020, United upheld the denial of payment for R.C.’s treatment.
`
`The letter appears to contain appeals information for “An Initial Non-Coverage
`
`Determination” which was no longer relevant at this stage of the process. The letter stated
`
`in part:
`
`Taking into consideration the available information, along with the locally
`available clinical services, it is my determination that the requested service does
`not meet the Optum Coverage Determination Guidelines required to be followed
`in the member’s behavioral health plan benefits. Specifically, the member had just
`completed residential treatment. The member was not in need of 24 hour
`monitoring. His risk factors were determined by the facility to be low. Although
`he had a history of aggression, he was not physically aggressive at the time of
`admission to others or himself. He was not having difficulty with sleep, appetite
`
`1 Oppositional Defiant Disorder
`
`
`
`
`
`8
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.10 Page 9 of 18
`
`or medical concerns that would have necessitated 24 hour observation. The non-
`coverage determination for Residential level of care on 6/17/2019 and forward
`will be upheld.
`
`Care could continue with mental health partial hospital care level of care, which
`was a covered benefit and was available locally.
`
`34. On June 9, 2020, B.C. submitted a level two appeal of the denial of R.C.’s treatment at
`
`CALO. B.C. continued to argue that R.C.’s treatment was medically necessary. She
`
`contended that United had failed to comply with its ERISA obligations and had provided
`
`no clinical evidence or supporting documentation for its decision to deny payment. She
`
`argued that due to the lack of evidence provided by United she was concerned that “this
`
`was a completely arbitrary decision intended to protect United’s financial bottom-line.”
`
`35. She stated that United had similarly failed to provide her with the documentation she
`
`required to assess MHPAEA compliance. She argued that United continued to impose
`
`non-quantitative treatment limitations, and had even introduced new limitations such as
`
`an acute requirement that R.C. be “physically aggressive at the time of admission to
`
`himself or others.”
`
`36. B.C. reiterated that according to MHPAEA, United could not impose requirements on
`
`mental health services which were stricter than those applied to analogous medical or
`
`surgical services. She contended that United was acting contrary to generally accepted
`
`standards of medical practice and accused it of intentionally violating MHPAEA and
`
`disregarding its fiduciary duty. She argued that United continued to act in this manner
`
`despite previous court rulings repudiating its behavior.
`
`37. B.C. again asked to be provided with a copy of the Plan Documents. She asked that if
`
`United did not possess these documents or if it was not acting on behalf of the Plan
`
`Administrator in this regard, that it forward her request to the appropriate entity. B.C.
`
`
`
`9
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.11 Page 10 of 18
`
`thanked the reviewer and stated she was looking forward to a response within the 30 day
`
`period allowed by the Plan.
`
`38. On September 11, 2020, B.C. submitted a complaint after United failed to respond to her
`
`appeal within the 30-day period allowed by the terms of the Plan. On September 25,
`
`2020, a United representative left an apologetic voicemail stating that the level two
`
`appeal had not been processed as it had been mistakenly classified as a provider appeal.
`
`The representative stated that the appeal would be submitted and reviewed that day.
`
`39. In a letter dated September 25, 2020, United upheld the denial of payment. The reviewer
`
`wrote in part:
`
`As requested, I have completed an appeal/grievance review on a request we
`received 06/15/2020. This review included an examination of the following
`information: [insert any that apply: medical records, case records, conversation
`with the member, conversation with the provider].2 After fully investigating the
`substance of the appeal/grievance, including all aspects of clinical care involved
`in this treatment episode I have determined that benefit coverage is not available
`for the following reason(s):
`
`I’ve denied the medical services listed below:
`
`Mental Health Residential Treatment Center for dates of service: from3
`
` I
`
` reviewed your child’s medical record. It is my opinion that his condition did not
`meet criteria for this level of care. Your child could’ve been treated in a less
`intensive Level of Care.
`
`In his case:
`• He graduated from the Wilderness program and reported to be in a “good
`place” right before admission to residential program [sic]
`• His assessment and/or treatment did not require the structure of 24-
`hour/seven days per week treatment setting.
`• He did not have problems that were likely to threaten his safety or safety
`of others [sic]
`
`
`2 This language is transcribed exactly as written in the denial letter. It seems that the reviewer used a generic form
`letter but neglected to insert the pertinent information. This is likely a byproduct of United attempting to review a
`2000+ page appeal with exhibits in a single day.
`3 Again, it appears the reviewer failed to include the relevant information.
`
`
`
`10
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.12 Page 11 of 18
`
`• He did not have problems that could not be manage [sic] at a less
`restrictive level of care
`• His behavior was well controlled
`• He was able and willing to participate in treatment
`• He was taking medicine as prescribed and they were helping
`• He did not have problems to attend to his daily needs to the extent that the
`his [sic] welfare was endangered.
`• His thinking was clear
`• His home environment was not compromised
`
`It does not mean that your son did not need treatment. It means that treatment of
`his depression, reactive attachment disorder, anxiety, attentional problems did not
`required [sic] for him to be in 24 hours setting. [sic] He could continued [sic] his
`progress in treatment in the Mental Health Partial Hospitalization setting.
`
`40. The Plaintiffs exhausted their pre-litigation appeal obligations under the terms of the Plan
`
`and ERISA.
`
`41. The denial of benefits for R.C.’s treatment was a breach of contract and caused B.C. to
`
`incur medical expenses that should have been paid by the Plan in an amount totaling over
`
`$300,000.
`
`42. United failed to produce a copy of the Plan Documents including any medical necessity
`
`criteria for mental health and substance use disorder treatment and for skilled nursing or
`
`rehabilitation facilities in spite of B.C.’s requests.
`
`FIRST CAUSE OF ACTION
`
`(Claim for Recovery of Benefits Under 29 U.S.C. §1132(a)(1)(B))
`
`43. ERISA imposes higher-than-marketplace quality standards on insurers and plan
`
`administrators. It sets forth a special standard of care upon plan fiduciaries such as
`
`United, acting as 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).
`
`//
`
`
`
`11
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.13 Page 12 of 18
`
`44. The failure of United and the Plan to provide coverage for R.C.’s treatment violated 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. United improperly measured the medical necessity of R.C.’s treatment using
`
`internal guidelines that were inconsistent with the terms of the Plan.
`
`45. For example, the summary plan description states under the heading Network and Non-
`
`Network Benefits, “[a]s a participant in this Plan, you have the freedom to choose the
`
`Physician or health care professional you prefer each time you need to receive Covered
`
`Health Services.” However, in its initial denial letter United relied on factors such as the
`
`assertion that treatment, “far from his home area can be a problem when he has to return
`
`home” as a justification to deny care. United’s rationale for denying care limited the
`
`availability of R.C.’s treatment in a manner contrary to the terms of the Plan.
`
`46. ERISA also underscores the particular importance of accurate claims processing and
`
`evaluation by requiring that administrators provide a “full and fair review” of claim
`
`denials and to engage in a meaningful dialogue with the Plaintiffs in the pre-litigation
`
`appeal process. 29 U.S.C. §1133(2).
`
`47. The denial letters produced by United demonstrate a lack of compliance with ERISA’s
`
`claims procedure regulations. Among other actions, United sent denial letters listing the
`
`wrong facility, with the incorrect appeals information, and in the case of the Plaintiffs’
`
`level two appeal, failed to respond entirely until a complaint was made. United then
`
`processed and reviewed the appeal within a single day and in such a manner that multiple
`
`areas of the denial form letter were incomplete.
`
`//
`
`
`
`12
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.14 Page 13 of 18
`
`48. Under the heading “Filing a Second Appeal,” the Summary Plan Description states in
`
`part, “United Healthcare must notify you of the appeal determination within 15 days after
`
`receiving the completed appeal for a pre-service claim and 30 days after receiving the
`
`completed post-service appeal.” United evaluated the medical necessity of R.C.’s claims
`
`in a manner contrary to the terms of the Plan contract.
`
`49. United and the agents of the Plan breached their fiduciary duties to R.C. when they failed
`
`to comply with their obligations under 29 U.S.C. §1104 and 29 U.S.C. §1133 to act
`
`solely in R.C.’s interest 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 R.C.’s claims.
`
`50. The actions of United and the Plan in failing to provide coverage for R.C.’s medically
`
`necessary treatment are a violation of the terms 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))
`
`51. MHPAEA is incorporated into ERISA and is enforceable by ERISA participants and
`
`beneficiaries as a requirement of both ERISA and MHPAEA.
`
`52. Generally speaking, MHPAEA requires ERISA plans to provide no less generous
`
`coverage for treatment of mental health and substance use disorders than they provide for
`
`treatment of medical/surgical disorders.
`
`53. MHPAEA prohibits ERISA plans from imposing treatment limitations on mental health
`
`or substance use disorder benefits that are more restrictive than the predominant
`
`treatment limitations applied to substantially all medical and surgical benefits and also
`
`
`
`13
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.15 Page 14 of 18
`
`makes illegal separate treatment limitations that are applicable only with respect to
`
`mental health or substance use disorder benefits. 29 U.S.C.§1185a(a)(3)(A)(ii).
`
`54. Impermissible nonquantitative treatment limitations under MHPAEA include, but are not
`
`limited to, medical management standards limiting or excluding benefits based on
`
`medical necessity, restrictions based on geographic location, facility type, provider
`
`specialty, and other criteria that limit the scope or duration of benefits for mental health
`
`or substance use disorder treatment. 29 C.F.R. §2590.712(c)(4)(ii)(A) and (H).
`
`55. The medical necessity criteria used by United for the intermediate level mental health
`
`treatment benefits at issue in this case are more stringent or restrictive than the medical
`
`necessity criteria the Plan applies to analogous intermediate levels of medical or surgical
`
`benefits.
`
`56. In addition, the level of care applied by United failed to take into consideration the
`
`patient’s safety if he returned to a home environment, as well as the risk of decline or
`
`relapse if less intensive care than what was medically necessary was provided.
`
`Generally accepted standards of medical practice for medical and surgical rehabilitation
`
`under the Plan take into consideration safety issues and considerations of preventing
`
`decline or relapse when admission into an intermediate care facility, such as a skilled
`
`nursing or rehabilitation facility, is approved.
`
`57. Comparable benefits offered by the Plan for medical/surgical treatment analogous to the
`
`benefits the Plan excluded for R.C.’s treatment include sub-acute inpatient treatment
`
`settings such as skilled nursing facilities, inpatient hospice care, and rehabilitation
`
`facilities. For none of these types of treatment does United exclude or restrict coverage of
`
`medical/surgical conditions by imposing restrictions such as acute care requirements for a
`
`
`
`14
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.16 Page 15 of 18
`
`sub-acute level of care. To do so, would violate not only the terms of the insurance
`
`contract, but also generally accepted standards of medical practice.
`
`58. In its review of R.C.’s claims, United’s reviewers improperly utilized acute medical
`
`necessity criteria to evaluate the non-acute treatment that R.C. received. United’s
`
`improper use of acute inpatient medical necessity criteria is revealed in the statements in
`
`United’s denial letters such as “he was not physically aggressive at the time of admission
`
`to others or himself.” This improper use of acute inpatient criteria was a nonquantitative
`
`treatment limitation that cannot permissibly be applied to evaluate the sub-acute level of
`
`care that R.C. received. The Plan does not require individuals receiving treatment at sub-
`
`acute inpatient facilities for medical/surgical conditions to satisfy acute medical necessity
`
`criteria in order to receive Plan benefits.
`
`59. As another example of the Plan’s improper application of its criteria to evaluate the
`
`treatment R.C. received, the Defendants relied on assertions such as R.C. making “some
`
`progress in past treatment” and “the member had just completed residential treatment” as
`
`a justification to deny payment. In fact, progress is the intended goal of any treatment
`
`program. United does not deny payment for treatment in a skilled nursing or
`
`rehabilitation program on the grounds that prior treatment had been effective.
`
`60. United also denied payment due to a restriction on geographic location. In spite of the
`
`fact that the Plan contract allows for treatment across the United States, as United is a
`
`large national corporation, R.C.’s treatment was denied at least in part because he was not
`
`treated close to his home. United does not deny payment in the medical or surgical realm
`
`based on the proximity of treatment to a patient’s home.
`
`
`
`15
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.17 Page 16 of 18
`
`61. Another example of the way in which the Defendants violated MHPAEA was in basing
`
`their denial of coverage for the treatment provided at CALO in part upon factors such as,
`
`“Your son has made some progress in past treatment.” When evaluating whether an
`
`individual qualifies for medical or surgical care, United does not base the medical
`
`necessity of treatment on the success or lack thereof of past treatments, but rather
`
`determines whether the treatment in question was necessary at the time for treatment of
`
`conditions that are both clearly manifesting themselves as well us conditions that are less
`
`visible but are underlying and causing those symptoms.
`
`62. When United and the Plan receive claims for intermediate level treatment of medical and
`
`surgical conditions, they provide benefits and pay the claims as outlined in the terms of
`
`the Plan based on generally accepted standards of medical practice. United and the Plan
`
`evaluated R.C.’s mental health claims using medical necessity criteria that deviate from
`
`generally accepted standards of medical practice. This process resulted in a disparity
`
`because the Plan denied coverage for mental health benefits when the analogous levels of
`
`medical or surgical benefits would have been paid.
`
`63. In this manner, the Defendants violate 29 C.F.R. §2590.712(c)(4)(i) because the terms of
`
`the Plan and the medical necessity criteria utilized by the Plan and United, as written or
`
`in operation, use processes, strategies, standards, or other factors to limit coverage for
`
`mental health or substance use disorder treatment in a way that is inconsistent with, and
`
`more stringently applied, than the processes, strategies, standards or other factors used to
`
`limit coverage for medical/surgical treatment in the same classification.
`
`64. United and the Plan did not produce the documents the Plaintiffs requested to evaluate
`
`medical necessity and MHPAEA compliance, nor did they address in any substantive
`
`
`
`16
`
`

`

`Case 2:21-cv-00032-JCB Document 2 Filed 01/19/21 PageID.18 Page 17 of 18
`
`capacity the Plaintiffs’ allegations that United and the Plan were not in compliance with
`
`MHPAEA.
`
`65. The violations of MHPAEA by United and the Plan give the Plaintiffs the right to obtain
`
`appropriate equitable remedies as provided under 29 U.S.C. §1132(a)(3) including, but
`
`not limited to:
`
`(a) A declaration that the actions of the Defendants violate MHPAEA;
`
`(b) An injunction ordering the Defendants to cease violating MHPAEA and requiring
`
`compliance with the statute;
`
`(c) An order requiring the reformation of the terms of the Plan and the medical necessity
`
`criteria utilized by the Defendants to interpret and apply the terms of the Plan to
`
`ensure compliance with MHPAEA;
`
`(d) An order requiring disgorgement of funds obtained by or retained by the Defendants
`
`as a result of their violations of MHPAEA;
`
`(e) An order requiring an accounting by the Defendants of the funds wrongly withhel