Case 2:21-cv-00364-RJS Document 2 Filed 06/14/21 PageID.3 Page 1 of 7
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`Eric Nielson #5327
`Laura Nielson #15008
`G. ERIC NIELSON & ASSOCIATES
`4790 S. Holladay Blvd.
`Holladay, Utah 84117
`Phone: (801) 424-9088
`Fax:
`(801) 438-0199
`ericnielson@ericnielson.com
`lauranielson@ericnielson.com
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`Attorneys for Plaintiffs
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`UNITED STATES DISTRICT COURT,
` DISTRICT OF UTAH, CENTRAL DIVISION
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`COMPLAINT
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` Case No. 2:21-cv-00364-RJS
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` Judge Robert J. Shelby
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`KIM B., JOHN B., and M.B.,
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`Plaintiffs,
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`vs.
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`EVERGREEN HEALTH, and SELECT PLUS
`PLAN,
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`Defendants.
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`COME NOW Kim B., John B., and M.B. collectively, individually, and through their
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`undersigned counsel, complain and allege against the above-captioned defendants as follows:
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`PARTIES, JURISDICTION, AND VENUE
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`1.
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`Plaintiff’s Kim B. (“Kim”) and John B. (“John”) are natural persons residing in
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`Clyde Hill, Washington. They are covered by a self-funded plan, Select Plus Plan (“the Plan”),
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`provided through John’s employer and plan administrator, Evergreen Health.
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`2.
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`Plaintiff M.B. (“M.B.”) is a resident of Clyde Hill, Washington. As a beneficiary
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`of her father’s health insurance plan, she received treatment at Outback Therapeutic Expeditions
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`(“Outback”), a licensed residential treatment facility in Lehi, Utah from May 2, 2020, through July
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`16, 2020.
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`3.
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`The Plan is an employee benefit plan governed by the Employment Retirement
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`Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1001, et. seq.
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`4.
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`This Court has jurisdiction over this matter and venue is appropriate pursuant to 29
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`U.S.C. §1132(e)(2) and 29 U.S.C. § 1391(c) because the treatment in question was rendered in the
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`State of Utah and the appeals were written by a company located in Salt Lake City, Utah.
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`5.
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`Plaintiffs seek payment of M.B.’s denied claims from May 2, 2020, through July
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`16, 2020, pursuant to 29 U.S.C. §1132(a)(1)(B).
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`6.
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`Plaintiffs seek injunctive relief pursuant to 29 U.S.C. §1132(a)(3) and pursuant to
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`the Mental Health Parity and Addiction Equity Act of 2008 (“the Parity Act”).
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`7.
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`Plaintiffs also seek an award of prejudgment interest and attorney’s fees pursuant
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`to 29 U.S.C. §1132(g).
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`FACTUAL BACKGROUND
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`8.
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`Claims were submitted to the Plan by the Plaintiff’s for M.B.’s treatment at
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`Outback.
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`9.
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`The Plan sent an EOB denying coverage for treatment using the code, EXCLU Not
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`a Covered Benefit.
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`10.
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`11.
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`On October 13, 2020, the M. Familby submitted a Level One Member Appeal.
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`In this letter, it states “I found that my plan provides coverage for the treatment of
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`behavioral health conditions as found in my Detailed Benefit Summary under the heading Mental
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`Health Care. My plan also provides coverage for other intermediate subacute medical care, such
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`as skilled nursing, rehabilitation services, and hospice care. I reviewed the exclusions in my plan
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`booklet and found that these exclusions only exist for mental health and substance abuse services,
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`and no such similar exclusions for intermediate subacute medical or surgical care, or in the general
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`exclusion’s sections. This seems to apply a stricter standard for receiving mental health care than
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`for receiving analogous medical care, in violation of the Mental Health Parity and Addictions
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`Equity Act of 2008 (MHPAEA).”
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`12.
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`Outback provides services that are less intensive than acute hospitalization and
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`more intensive than outpatient therapy. Outback qualifies as an intermediate behavioral health
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`facility under the MHPAEA. The Plan must administer benefits for intermediate behavioral health
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`facilities in a way comparable to the administration of benefits for intermediate medical facilities.
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`13.
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`Outback meets the Plan’s definition of a provider and is duly licensed by the State
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`of Utah to provide intermediate OBH services.
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`14.
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`Page 82 of the Plan gives the definition of a provider as “any person, organization,
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`health facility or institution licensed to deliver or furnish health care services.”
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`15.
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`As such, coverage is available under the Plan for inpatient mental health and
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`substance abuse treatment. The Plan covers intermediate medical and surgical care, including
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`skilled nursing facility services, subacute rehabilitation facility services, and inpatient hospice
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`services.
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`16.
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`On December 16, 2020, the Plan sent a letter to the B. Family upholding the denial,
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`specifically stating that page 34 of the 2020 Summary Plan Description per the Plan noted above
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`states that wilderness therapy is a Plan benefit exclusion.
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`FIRST CAUSES OF ACTION
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`(Claim for Benefits Under 29 U.S.C. §1132(a)(1)(B)) and Claim for Equitable Relief
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`Pursuant to 29 U.S.C. §1132(a))
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`2.
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`ERISA imposes higher-than-marketplace standards on the Plan and other ERISA
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`fiduciaries. It sets forth a special standard of care upon a plan fiduciary, namely that the
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`administrator discharges all plan duties solely in the interest of the participants and beneficiaries
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`of the plan and for the exclusive purpose of providing them benefits. 29 U.S.C. §1104(a)(1).
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`3.
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`ERISA also underscores the particular importance of accurate claims processing
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`and evaluation by requiring that plan administrators provide a “full and fair review” of claim
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`denials. 29 U.S.C. §1104(a)(1)(D) and §1133(2).
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`17.
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`The Plan’s actions or failures to act constitute a breach of its fiduciary duties to the
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`B. Family under 29 U.S.C. §1104 and §1133 in the following ways: 1) by failing to set forth the
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`specific reasons for M.B.’s claim denial, written in a manner calculated to be understood by the B.
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`Family; 2) by failing to provide a “full and fair review,” as anticipated in ERISA's claims
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`processing regulations, of the denial of the B.M.’s claim; 3) by developing and relying upon
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`internal practices and policies that improperly restricted coverage in contravention of Plaintiffs’
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`health insurance plans, ERISA, and the Parity Act; and 4) by failing to discharge all plan duties
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`solely in the interest of the participants and beneficiaries of the plan and for the exclusive purpose
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`of providing them benefits.
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`SECOND CAUSE OF ACTION
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`(Claim for Violation of the Parity Act Under 29 U.S.C. §1132(a)(3))
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`The Parity Act is incorporated into ERISA and is enforceable by ERISA
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`33.
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`participants and beneficiaries as a requirement of both ERISA and the Parity Act.
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`34.
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`The Parity Act requires that if a group health plan provides both medical and
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`surgical benefits as well as mental health or substance use disorder benefits, then it may not apply
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`any “treatment limitation to mental health or substance use disorder benefits in any classification
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`that is more restrictive than the predominant ... treatment limitation of that type applied to
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`substantially all medical/surgical benefits in the same classification.” 29 C.F.R. § 2590.712(c)(2)(i)
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`(amended Jan. 13, 2014); see also IFRs Under the Parity Act, 75 Fed. Reg. at 5413.
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`35.
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`The Parity Act also requires that if a plan “provides mental health or substance use
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`disorder benefits in any classification of benefits..., mental health or substance use disorder
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`benefits must be provided in every classification in which medical/surgical benefits are provided.”
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`29 C.F.R. § 2590.712(c)(2)(ii).
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`36.
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`Impermissible nonquantitative treatment limitations under the Parity Act include,
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`but are not limited to, medical management standards limiting or excluding benefits based on
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`medical necessity, restrictions based on geographic location, facility type, provider specialty, and
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`other criteria that limit the scope or duration of benefits for mental health or substance use disorder
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`treatment. 29 C.F.R. §2590.712(c)(4)(ii)(A) and (H).
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`37.
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`Comparable benefits offered by the Plan for medical/surgical treatment analogous
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`to the benefits the Plan excluded for B.M.’s treatment include sub-acute inpatient treatment
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`settings such as skilled nursing facilities, inpatient hospice care, and rehabilitation facilities. For
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`none of these types of treatment does the Plan exclude or restrict coverage of medical/surgical
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`conditions based on medical necessity, geographic location, facility type, provider specialty, or
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`other criteria in the manner the Plan excluded coverage of treatment for B.M. at Outback.
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`38.
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`Specifically, the Plan’s reviewers utilized internal processes and procedures that
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`may have placed a limitation on the scope of services available for intermediate behavioral health
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`care, while not limiting the scope of services available for intermediate medical or surgical
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`benefits.
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`39. When the Plan receives claims for intermediate-level treatment of medical and
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`surgical conditions, they provide benefits and pay the claims as outlined in the terms of the Plan
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`based on generally accepted standards of medical practice. The Plan evaluated B.M.’s mental
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`health claims using medical necessity criteria that deviate from generally accepted standards of
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`medical practice. This process resulted in a disparity because the Plan denied coverage for mental
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`health benefits when the analogous levels of medical or surgical benefits would have been paid.
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`40.
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`In this manner, the Defendants violate 29 C.F.R. §2590.712(c)(4)(i) because the
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`terms of the Plan and the medical necessity criteria utilized by the Plan, as written or in operation,
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`use processes, strategies, standards, or other factors to limit coverage for mental health or
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`substance use disorder treatment in a way that is inconsistent with and more stringently applied,
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`than the processes, strategies, standards or other factors used to limit coverage for medical/surgical
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`treatment in the same classification.
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`41.
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`The violations of the Parity Act by the Plan give the Plaintiffs the right to obtain
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`appropriate equitable remedies as provided under 29 U.S.C. §1132(a)(3) including, but not limited
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`to:
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`42.
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`43.
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`A declaration that the actions of the Defendants violate the Parity Act;
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`An injunction ordering the Defendants to cease violating the Parity Act and
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`requiring compliance with the statute;
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`44.
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`An order requiring the reformation of the terms of the Plan and the medical
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`necessity criteria utilized by the Defendants to interpret and apply the terms of the Plan to ensure
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`compliance with the Parity Act;
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`45.
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`An order requiring disgorgement of funds obtained by or retained by the
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`Defendants as a result of their violations of the Parity Act;
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`46.
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`An order requiring an accounting by the Defendants of the funds wrongly withheld
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`by each Defendant from participants and beneficiaries of the Plan and other Blue Cross Blue Shield
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`of Texas insured and administered plans as a result of the Defendants’ violations of the Parity Act;
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`47.
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`An order based on the equitable remedy of surcharge requiring the Defendants to
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`provide payment to the Plaintiffs as make-whole relief for their loss;
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`48.
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`An order equitably estopping the Defendants from denying the Plaintiffs’ claims in
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`violation of the Parity Act; and
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`49.
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`An order providing restitution from the Defendants to the Plaintiffs for their loss
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`arising out of the Defendants’ violation of the Parity Act.
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`50.
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`45. In addition, Plaintiffs are entitled to an award of prejudgment interest pursuant
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`to U.C.A.
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`51.
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`§15-1-1, and attorney fees and costs pursuant to 29 U.S.C. §1132(g)
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`52. WHEREFORE, the Plaintiffs seek relief as follows:
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`RELIEF
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`53.
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`Judgment in the total amount that is owed for B.M.’s medically necessary treatment
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`at Outback under the terms of the Plan, plus pre- and post-judgment interest to the date of payment;
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`54.
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`Appropriate equitable relief under 29 U.S.C. §1132(a)(3) as outlined in Plaintiffs’
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`Second Cause of Action;
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`55.
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`56.
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`Attorney fees and costs incurred pursuant to 29 U.S.C. §1132(g); and
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`For such further relief as the Court deems just and proper.
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`RESPECTFULLY SUBMITTED this 14th day of June 2021.
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`G. ERIC NIELSON & ASSOCIATES
` /s/ Laura Nielson
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`Laura Nielson
`Attorney for Plaintiff
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