Case 2:21-cv-00435-DAK Document 2 Filed 07/16/21 PageID.2 Page 1 of 18
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`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
`
`K.G., and E.G.,
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`COMPLAINT
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`Plaintiffs,
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`vs.
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`Case No. 2:21-cv-00435- DAK
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`AETNA LIFE INSURANCE COMPANY, and
`the ASBURY AUTOMOTIVE GROUP, INC.
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`Defendants.
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`Plaintiffs K.G. and E.G., through their undersigned counsel, complain and allege against
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`Defendants Aetna Life Insurance Company (“Aetna”) and the Asbury Automotive Group (“the
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`Asbury”) as follows:
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`PARTIES, JURISDICTION AND VENUE
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`1. K.G. and E.G. are natural persons residing in New York County, New York. K.G. is
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`E.G.’s father.
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`2. Aetna is an insurance company headquartered in Hartford County, Connecticut and was
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`the claims administrator, as well as the fiduciary under ERISA for the Plan during the
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`treatment at issue in this case.
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`3. The Plan is a self-funded employee welfare benefits plan under 29 U.S.C. §1001 et. seq.,
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`the Employee Retirement Income Security Act of 1974 (“ERISA”). K.G. was a
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`participant in the Plan and E.G. was a beneficiary of the Plan at all relevant times. K.G.
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`and E.G. continue to be participants and beneficiaries of the Plan.
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`4. E.G. received medical care and treatment at Optimum Performance Institute (“OPI”)
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`from July 17, 2018 to August 30, 2018, and The Sanctuary at Sedona (“Sedona”) from
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`August 31, 2018 to October 21, 2018. These are treatment facilities located in Los
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`Angeles County, California and Yavapai County, Arizona, respectively. These facilities
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`provide sub-acute inpatient treatment to adolescents with mental health, behavioral,
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`and/or substance abuse problems.
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`5. Aetna denied claims for payment of E.G.’s medical expenses in connection with her
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`treatment at OPI and Sedona.
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`6. This Court has jurisdiction over this case under 29 U.S.C. §1132(e)(1) and 28 U.S.C.
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`§1331.
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`7. Venue is appropriate under 29 U.S.C. §1132(e)(2) and 28 U.S.C. §1391(c) based on
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`ERISA’s nationwide service of process and venue provisions and because Aetna does
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`business in Utah. Moreover, prosecuting the case in Utah reduces the Plaintiffs’ out of
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`pocket expenses. Finally, in light of the sensitive nature of the medical treatment at issue,
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`it is the Plaintiffs’ desire that the case be resolved in the State of Utah where it is more
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`likely their privacy will be preserved.
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`Case 2:21-cv-00435-DAK Document 2 Filed 07/16/21 PageID.4 Page 3 of 18
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`8. The remedies the Plaintiffs seek under the terms of ERISA and under the Plan are for the
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`benefits due under the terms of the Plan, and pursuant to 29 U.S.C. §1132(a)(1)(B), for
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`appropriate equitable relief under 29 U.S.C. §1132(a)(3) based on the Defendants’
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`violation of the Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”),
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`an award of prejudgment interest, and an award of attorney fees and costs pursuant to 29
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`U.S.C. §1132(g).
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`BACKGROUND FACTS
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`E.G.’s Developmental History and Medical Background
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`9. Prior to fourth grade, E.G. had difficulty with her schoolwork and when she was eight,
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`she was tested and found to have learning differences. At this point, E.G.’s parents
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`decided to move her to a school that could better accommodate these differences, The
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`Stephen Gaynor School.
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`10. During E.G.’s time at The Stephen Gaynor School, grades fourth through eighth, she
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`exhibited a significant degree of anxiety, depression, anger, and a generalized mood
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`disorder. E.G. was treated by various psychiatrists and psychologists in order to try and
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`help her with these conditions.
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`11. When E.G. was young she did not respond well to talk-therapy well but tried several
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`different medications. But over the long term, none of the medications ended up working
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`for her.
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`12. When E.G. reached ninth grade, her parents moved her back into a mainstream high
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`school. This is when E.G. started to have suicidal ideation. E.G. had a friend she met at
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`school who was also suicidal, which strengthened her desire to take her own life.
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`13. As soon as E.G.’s parents found out about E.G.’s suicidal ideation they consulted with
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`her psychiatrist and determined that E.G. needed to be withdrawn from her school and
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`placed in inpatient care at Sweetwater Adolescent Girls Treatment program at
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`Cottonwood Tucson (“Sweetwater”)
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`14. E.G. stayed at Sweetwater for three months and then went back to her regular high
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`school. She was able to finish out the school year and claimed to no longer have severe
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`suicidal ideation thoughts.
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`15. E.G. was able to finish high school under the care of her psychiatrists and psychologists
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`and with a variety of medications. She then applied to college and was accepted.
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`16. E.G. enrolled at Marist College, however her anxiety, depression, anger and mood
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`disorders became so severe that she had to withdraw and with the recommendation of her
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`doctors, she was enrolled at Pure Life in Costa Rica, a therapeutic program for young
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`adults struggling with mental health disorders.
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`17. Based on the recommendation of her treatment providers, after Pure Life, E.G. was
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`enrolled at OPI.
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`18. E.G. was admitted to OPI on July 17, 2018.
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`OPI
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`19. Plaintiffs received a denial letter from Aetna dated November 13, 2018 that stated:
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`We reviewed information received about the member’s condition and
`circumstances and the member’s benefit plan. We are denying coverage for
`Mental Health Residential treatment. Mental Health Residential treatment
`programs must have a behavioral health provider actively on duty 24 hours per
`day for 7 days a week. Therefore, Mental Health Residential treatment is not
`covered under the terms of the plan.
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`20. On April 2, 2019, Plaintiffs submitted their level one appeal explaining why Aetna must
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`reverse their decision for E.G.’s treatment at OPI.
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`21. In Plaintiffs’ level one appeal, they explained how Aetna violated the terms of ERISA
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`and MHPAEA by requiring an intermediate mental health care facility to have a 24 hour
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`per day, 7 days a week requirement, when they do not require that treatment limitation
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`for analogous medical/surgical care, such as skilled nursing facilities.
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`22. K.G. stated that OPI was considered a behavioral health provider under the terms of his
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`plan. The relevant plan language states:
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`Behavioral health provider
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`An individual professional that is properly licensed or certified to provide
`diagnostic and/or therapeutic services for mental disorders and substance abuse,
`under the laws of the jurisdiction where the individual practices.
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`23. K.G. stated that OPI “provides diagnostic and therapeutic treatment interventions for
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`young adults struggling with chronic behavioral health issues, like my daughter.
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`However, OPI is not required to be licensed in the state of California, where the facility is
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`located and operates out of.”
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`24. K.G. also stated in his level one appeal for E.G.’s treatment at OPI that Aetna violated
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`MHPAEA because Aetna does not require skilled nursing facilities to impose a limitation
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`where they require facilities to have a health provider actively on duty 24 hours per day
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`for 7 days per week.
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`25. In a letter dated May 7, 2019 Aetna stated:
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`We are responding to the appeal of our decision on the following issue:
`• Billed Amount: $30,750 and $15,375
`• Denial Code(s):
`o 447-Ask your provider to send us medical records that includes
`details of the services from the admission date to the discharge
`date. When we get them, we will consider this claim.
`We will make our decision within 15 days of getting the
`information. We’ ll [sic.] deny this claim if we do not get this
`information within 45 days from the day you receive this form.
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`The basis for the denial will be that we do not have the
`information we need to consider this charge.
`To ensure proper identification and tracking of this claim, you
`must include: the complete member name, complete patient
`name and the Member ID number. Please attach this
`information to this document and return to us.
`o 717-This is denied. We previously asked you or your health
`care provider for more information. We didn’t get it. Refer to
`the prior EOB for claim by logging into the secure member
`website found on your ID card.
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`26. This May 7, 2019 letter, signed by Justin O., goes on to state the nearly identical denial
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`from the first denial letter from OPI, again imposing 24 hours a day 7 days a week
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`restriction on the coverage of intermediate mental health treatment facilities.
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`27. Plaintiffs note that they received a separate letter from Aetna dated May 7, 2019 denying
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`coverage for E.G.’s treatment at Sedona. This letter was signed by “Justin Ossman Aetna
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`Customer Resolution Team Complaint and Appeal Analyst.” It appears likely that Justin
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`O. and Justin Ossman are the same person even though Aetna’s letter clearly states, “A
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`complaint and appeal analyst, who was not involved in any prior decision, participated in
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`the review of the appeal.”
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`28. K.G. requested his plan documents stating,
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`However, if you do not pay this claim based on the informatin I have presented in
`this appeal, please send me a copy of al documents under which the plan is
`operated including all governing plan documents, the benefits booklet, any
`insurance policies in place for the benefits I am seeking, any administrative
`services agreements that exist, any mental health and substance absue criteria
`(including SNF, inpatient rehabilition, and hospice criteria) utilized to evaluate
`the claim, and any reports or opinions provided to you from any physician or
`other professional about this claim. As you know, these criteria are part of the
`documents under which the plan is operated. In addition, please provide me with
`the names, qualificaitons, and healthcare claim denial rates of all individuals who
`reviewed this claim or with whom you consulted about this claim. Finally, I ask
`that you provide me with a parity analysis and respond to my concerns that Aetna
`hs violated MHPAEA by applying stricter limitations to my intermediate
`behavioral health benefits which have not been applied comparably to my
`intermediate medical health benefits.
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`Case 2:21-cv-00435-DAK Document 2 Filed 07/16/21 PageID.8 Page 7 of 18
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`29. On June 27, 2019, Plaintiffs submitted their level two appeal to Aetna. K.G. again made
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`nearly the same arguments as the first appeal to address the same 24 hours a day 7 days a
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`week restriction, because Aetna did not seem to even consider them in the level one
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`appeal.
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`30. K.G. also explained E.G.’s developmental and mental health history. In addition, he
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`attached hundreds of pages of E.G.’s medical records, as requested by Aetna.
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`31. K.G. never received a request for E.G.’s medical records from Aetna, prior to receiving
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`the May 7, 2019 denial letter.
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`32. K.G. requested his plan documents again as allowed under ERISA and MHPAEA in his
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`level two appeal stating,
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`However, if you do not pay this claim based on the information I have presened in
`this appeal, please send me a copy of all documents under which the plan is
`operated including all governing plan documents, the Benefits Booklet, any
`insurance policies in place for the benefits I am seeking, any administrative
`services agreements that exist, any mental health and substance use disorder
`criteria (including SNF, inpatient rehabilitation, and hospice critera) utilized to
`evaluate the claim, and any reports or opinions provided to you from any
`physician or other professional about this claim. As you know, these criteria are
`prt of the documents under which the plan is operated. In addition, please provide
`me with the names, qualificaitons, and healthcare claim denial rates of all
`individuals who reviewed this claim or with whom you consulted about this
`claim.
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`33. In a letter dated July 29, 2019, Aetna stated:
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`We are responding to the appeal of our decision about the following issue:
`• The inpatient residential mental health stay on July 17, 2018 to August 30,
`2018.
`• Billed amount combined $46,125.00.
`• Denial code K69 – This charge is not covered. Your plan excludes
`coverage for services to treat injuries resulting from certain activities.
`Please refer to the Exclusions and Limitations sections of your Certificate
`of Coverage for details.
`• Denial code 717 – This is denied. We previously asked you or your health
`care provider for more information. We didn’t get it. Refer to the prior
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`EOB for this claim by logging into the secure member website found on
`your ID card.
`…
`We are denying coverage for mental health residential treatment. Mental
`Health residential treatment programs must have a behavioral health
`provider actively on duty 24 hours per day for 7 days a week. Since this
`facility, [OPI], does not have a behavioral health provider actively on duty
`24 hours per day for 7 days a week, the mental health residential treatment
`is not covered under the terms of the plan.
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`34. Not only did Aetna not address any of K.G.’s points from either of his appeals for OPI,
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`but they also didn’t acknowledge that they did in fact receive the information they
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`requested and they do not state what “certain activities” E.G. engaged in that led her to be
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`ineligible for mental health coverage.
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`35. E.G. was admitted to Sedona on August 31, 2018.
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`Sedona
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`36. A letter dated January 28, 2019 from Aetna was received by Plaintiffs and stated:
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`We reviewed information received about the member’s condition and
`circumstances and the member’s benefit plan. We are denying coverage for
`Mental Health Residential treatment. Mental Health Residential treatment
`programs must be an institution specifically licensed as a residential treatment
`facility by applicable state and federal laws to provide for Mental Health
`Residential treatment programs. And is credentialed by Aetna or is accredited by
`one of the following agencies, commissions or committees for the services being
`provided: The Joint Commission (TJC), The Committee on Accreditation of
`Rehabilitation Facilities (CARF), The American Osteopathic Association’s
`Healthcare Facilities Accreditation Program (HFAP) and The Council on
`Accreditation (COA). Therefore, Mental Health Residential treatment is not
`covered under the terms of the plan.
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`37. On April 2, 2019, Plaintiffs submitted a level one appeal for E.G.’s care at Sedona.
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`38. K.G. explained how Aetna violated ERISA by “not identifying the reviewer or their
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`credentials” and that “I [K.G.] have a right to a response from Aetna that is clear,
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`specifically states the reasons for the denial, references to plan language on which the
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`Case 2:21-cv-00435-DAK Document 2 Filed 07/16/21 PageID.10 Page 9 of 18
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`denial is based, and explains what other information I could provide in order to perfect
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`[E.G.]’s claim.”
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`39. Aetna’s reviewer did not sign the denial letter nor did they provide their credentials. K.G.
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`stated that it is essential to have someone who has a background in handling young adults
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`with mental health diagnosis evaluate E.G.’s claim and stated:
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`please assign a reviewer who has extensive experience treating young adults in a.
`Residential setting, who display high risk behaviors and have also been diagnosed
`with the following:
`•
`(F41.1) Generalized anxiety disorder
`•
`(F33.2) Major depressive disorder, recurrent episode, severe
`I also ask that the reviewer have experience working with conditions similar to
`[E.G.]’s historical diagnosis of:
`•
`(F60.3) Borderline personality disorder
`•
`(F81.0) Specific reading disorder
`•
`(F81.81) Disorder of written expression
`•
`(F34.1) Persistent depressive disorder
`•
`(F41.1) Generalized anxiety disorder
`•
`(F45.22) Body dysmorphic disorder
`•
`(F60.4) Histrionic personality disorder
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`40. Aetna’s January 28, 2019 denial letter provides a denial rational without any specific
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`references to Plaintiffs’ plan documents.
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`41. K.G. continued on to provide specific examples as to why Sedona meets the definitions
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`of “behavioral health provider” and more generally the plan definition of “provider.”
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`42. K.G. provided evidence that Sedona is a licensed facility by the state of Arizona to
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`provide intermediate behavioral health treatment by attaching their license to their appeal.
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`43. After explaining the ERISA regulations that Aetna violated while evaluating E.G.’s
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`claim, K.G. explained how Aetna also potentially violated MHPAEA with a facial plan
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`disparity.
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`44. K.G. explained that a skilled nursing facility (SNF) is an analogue to residential mental
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`health treatment, like E.G. received at Sedona, and that in order to not violate MHPAEA
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`Aetna would have to require SNFs to also apply a “licensed and accredited” factor when
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`evaluating those claims.
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`45. K.G. stated that in his plan documents the SNF definition does not state that for treatment
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`at a SNF the facility has to be licensed and accredited.
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`46. Lastly, K.G. requests his plan documents stating,
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`However, if you do not pay this claim based on the informatin I have presented in
`this appeal, please send me a copy of al documents under which the plan is
`operated including all governing plan documents, the benefits booklet, any
`insurance policies in place for the benefits I am seeking, any administrative
`services agreements that exist, any mental health and substance absue criteria
`(including SNF, inpatient rehabilition, and hospice criteria) utilized to evaluate
`the claim, and any reports or opinions provided to you from any physician or
`other professional about this claim. As you know, these criteria are part of the
`documents under which the plan is operated. In addition, please provide me with
`the names, qualificaitons, and healthcare claim denial rates of all individuals who
`reviewed this claim or with whom you consulted about this claim. Fionally, I ask
`that you provide me with a parity analysis and respond to my concerns that Aetna
`hs violated MHPAEA by applying stricter limitations to my intermediate
`behavioral health benefits which have not been applied comparably to my
`intermediate medical health benefits.
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`47. Plaintiffs received a letter from Aetna dated May 7, 2019 which states:
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`We are responding to the appeal of our decision on the following issue:
`• The residential treatment services that were denied.
`o Billed Amount: $32,454,45; $1,545.45; $34,800.00; $1200.00
`o Denial Code(s):
`§ O60-This is not covered. Your stay did not meet the
`inpatient criteria. Your case could be provided without an
`inpatient stay.
`§ 415-This is not covered. Based on what we received, the
`services were not provided. If you want us to reconsider,
`send us more information.
`We reviewed all available information, including:
`• The appeal
`• The claim system
`• The Summary Plan Description (SPD) for Asbury Automotive Group, Inc.
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`48. Aetna continued on to state that Sedona did not meet the requirements of the plan
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`because it was not licensed and accredited. This denial rationale once again did not
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`address any of K.G.’s points in his level one appeal.
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`49. The May 7, 2019 letter was once more signed by “Justin Ossman Aetna Customer
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`Resolution Team Complaint and Appeal Analyst.” Without any more information on
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`Justin Ossman. The letter did not provide any further credentials for Mr. Ossman and did
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`not specify whether he has experience with treating someone with E.G.’s mental health
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`conditions in a residential treatment setting as requested by K.G. in their level one appeal,
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`but also required by ERISA.
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`50. On June 27, 2019, Plaintiffs submitted their level two appeal for K.G.’s treatment at
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`Sedona.
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`51. In Plaintiffs’ level two appeal they stated very similar facts as their level one appeal to
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`address a nearly identical denial reason.
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`52. K.G. also provided numerous medical records attached to the level two appeal to prove
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`that E.G.’s treatment was medically necessary.
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`53. In addition to medical records, K.G. explained all of E.G.’s mental health history starting
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`from when she was a young child to the date of the appeal.
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`54. In Plaintiffs’ level two appeal K.G. specifically requested,
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`However, if you do not pay this claim based on the information I have presened in
`this appeal, please send me a copy of all documents under which the plan is
`operated including all governing plan documents, the Benefits Booklet, any
`insurance policies in place for the benefits I am seeking, any administrative
`services agreements that exist, any mental health and substance use disorder
`criteria (including SNF, inpatient rehabilitation, and hospice critera) utilized to
`evaluate the claim, and any reports or opinions provided to you from any
`physician or other professional about this claim. As you know, these criteria are
`prt of the documents under which the plan is operated. In addition, please provide
`me with the names, qualificaitons, and healthcare claim denial rates of all
`
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`individuals who reviewed this claim or with whom you consulted about this
`claim.
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`55. The Plaintiffs exhausted their pre-litigation appeal obligations under the terms of the Plan
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`and ERISA.
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`56. The denial of benefits for E.G.’s treatment was a breach of contract and caused K.G. to
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`incur medical expenses that should have been paid by the Plan in an amount totaling over
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`$96,000.00.
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`57. Aetna failed to produce a copy of the plan documents including any medical necessity
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`criteria for mental health and substance use disorder treatment and for skilled nursing or
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`rehabilitation facilities in spite of Plaintiffs’ request.
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`FIRST CAUSE OF ACTION
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`(Claim for Recovery of Benefits Under 29 U.S.C. §1132(a)(1)(B))
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`58. ERISA imposes higher-than-marketplace quality standards on insurers and plan
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`administrators. It sets forth a special standard of care upon plan fiduciaries such as Aetna,
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`acting as agent of the Plan, to “discharge [its] duties in respect to claims processing solely
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`in the interests of the participants and beneficiaries” of the Plan. 29 U.S.C. §1104(a)(1).
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`59. Aetna and the Plan failed to provide coverage for E.G.’s treatment in violation of the
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`express terms of the Plan, which promise benefits to employees and their dependents for
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`medically necessary treatment of mental health and substance use disorders.
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`60. ERISA also underscores the particular importance of accurate claims processing and
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`evaluation by requiring that administrators provide a “full and fair review” of claim
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`denials and to engage in a meaningful dialogue with the Plaintiffs in the pre-litigation
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`appeal process. 29 U.S.C. §1133(2).
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`61. The denial letters produced by Aetna do little to elucidate whether Aetna conducted a
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`Case 2:21-cv-00435-DAK Document 2 Filed 07/16/21 PageID.14 Page 13 of 18
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`meaningful analysis of the Plaintiffs’ appeals or whether it provided them with the “full
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`and fair review” to which they are entitled. Aetna failed to substantively respond to the
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`issues presented in K.G.’s appeals and did not meaningfully address the arguments or
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`concerns that the Plaintiffs raised during the appeals process.
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`62. In fact, Aetna’s denial letters rely on formulaic recitations and do not address the
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`arguments raised by K.G. in any capacity.
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`63. ERISA, as well as Aetna’s own stated policy in its review letters, prohibits the evaluation
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`of a denial by an individual who was previously involved in the denial process. Aetna
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`appears to have disregarded both ERISA and its own protections by repeatedly utilizing
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`the same reviewer to evaluate the Plaintiffs’ appeals.
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`64. Aetna and the agents of the Plan breached their fiduciary duties to E.G. when they failed
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`to comply with their obligations under 29 U.S.C. §1104 and 29 U.S.C. §1133 to act
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`solely in E.G.’s interest and for the exclusive purpose of providing benefits to ERISA
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`participants and beneficiaries, to produce copies of relevant documents and information
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`to claimants upon request, and to provide a full and fair review of E.G.’s claims.
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`65. The actions of Aetna and the Plan in failing to provide coverage for E.G.’s medically
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`necessary treatment are a violation of the terms of the Plan and its medical necessity
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`criteria.
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`SECOND CAUSE OF ACTION
`
`(Claim for Violation of MHPAEA Under 29 U.S.C. §1132(a)(3))
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`66. MHPAEA is incorporated into ERISA and is enforceable by ERISA participants and
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`beneficiaries as a requirement of both ERISA and MHPAEA. The obligation to comply
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`with both ERISA and MHPAEA is part of Aetna’s fiduciary duties.
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`67. Generally speaking, MHPAEA requires ERISA plans to provide no less generous
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`coverage for treatment of mental health and substance use disorders than they provide for
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`treatment of medical/surgical disorders.
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`68. MHPAEA prohibits ERISA plans from imposing treatment limitations on mental health
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`or substance use disorder benefits that are more restrictive than the predominant
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`treatment limitations applied to substantially all medical and surgical benefits and also
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`makes illegal separate treatment limitations that are applicable only with respect to
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`mental health or substance use disorder benefits. 29 U.S.C.§1185a(a)(3)(A)(ii).
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`69. Impermissible nonquantitative treatment limitations under MHPAEA include, but are not
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`limited to, medical management standards limiting or excluding benefits based on
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`medical necessity; refusal to pay for higher-cost treatment until it can be shown that a
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`lower-cost treatment is not effective; and restrictions based on geographic location,
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`facility type, provider specialty, or other criteria that limit the scope or duration of
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`benefits for mental health or substance use disorder treatment. 29 C.F.R.
`
`§2590.712(c)(4)(ii)(A), (F), and (H).
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`70. The explicit language of the SPD, one of the governing plan documents, state that the
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`Defendant will utilize generally accepted standards of medical practice that are, “based
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`on credible scientific evidence published in peer-reviewed medical literature generally
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`recognized by the relevant medical community. Consistent with the standards set forth
`
`in policy issues involving clinical judgement.” when evaluating the medical necessity
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`of treatment for purposes of evaluating coverage under the Plan of mental health
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`claims.
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`Case 2:21-cv-00435-DAK Document 2 Filed 07/16/21 PageID.16 Page 15 of 18
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`71. The medical necessity criteria used by Aetna for the intermediate level mental health
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`treatment benefits at issue in this case are more stringent or restrictive than the medical
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`necessity criteria the Plan applies to analogous intermediate levels of medical or surgical
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`benefits.
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`72. Comparable benefits offered by the Plan for medical/surgical treatment analogous to the
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`benefits the Plan excluded for E.G.’s treatment include sub-acute inpatient treatment
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`settings such as skilled nursing facilities, inpatient hospice care, and rehabilitation
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`facilities. For none of these types of treatment does Aetna exclude or restrict coverage of
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`medical/surgical conditions by imposing restrictions such as an acute care requirement
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`for a sub-acute level of care. To do so, would violate not only the terms of the insurance
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`contract, but also generally accepted standards of medical practice.
`
`73. When Aetna and the Plan receive 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 based on generally accepted standards of medical practice. Aetna and the Plan
`
`evaluated E.G.’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
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`medical or surgical benefits would have been paid.
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`74. As an example of disparate application of medical necessity criteria between
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`medical/surgical and mental health treatment, Aetna’s reviewers imposed a requirement
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`that “[m]ental health residential treatment programs must have a behavioral health
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`provider actively on duty 24 hours per day for 7 days a week.” Plaintiffs repeatedly
`
`voiced their concerns that this requirement was not permissible under MHPAEA as it was
`
`
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`Case 2:21-cv-00435-DAK Document 2 Filed 07/16/21 PageID.17 Page 16 of 18
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`a restriction applied to the mental health treatment E.G. received, but was not equally
`
`applied to analogous medical or surgical care, such as skilled nursing facilities.
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`75. The actions of Aetna requiring conditions for coverage that do not align with medically
`
`necessary standards of care for treatment of mental health and substance use disorders
`
`and in requiring accreditation above and beyond the licensing requirements for state law
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`violate MHPAEA because the Plan does not impose similar restrictions and coverage
`
`limitations on analogous levels of care for treatment of medical and surgical conditions.
`
`76. 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 Aetna, 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.
`
`77. Aetna did not produce the documents the Plaintiffs requested to evaluate medical
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`necessity and MHPAEA compliance, nor did they address in any substantive capacity the
`
`Plaintiffs’ allegations that Aetna and the Plan were not in compliance with MHPAEA.
`
`78. The violations of MHPAEA by Aetna and the Plan are breaches of fiduciary duty and
`
`also 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;
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`(b) An injunction ordering the Defendants to cease violating MHPAEA and requiring
`
`compliance with the statute;
`
`
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`16
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`Case 2:21-cv-00435-DAK Document 2 Filed 07/16/21 PageID.18 Page 17 of 18
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`(c) An order requiring the reformation of the terms of the Plan and the medical necessity
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`criteria utilized by the Defendants to interpret and apply the terms of the Plan to
`
`ensure compliance with MHPAEA;
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`(d) An order requiring disgorgement of funds obtained by or retained by the Defendants
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`as a result of their violations of MHPAEA;
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`(e) An order requiring an accounting by the Defendants of the funds wrongly withheld by
`
`each Defendant from participants and beneficiaries of the Plan as a result of the
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`Defendants’ violations of MHPAEA;
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`(f) 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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`(g) An order equitably estopping the Defendants from denying the Plaintiffs’ claims in
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`violation of MHPAEA; and
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`(h) An order providing restitution from the Defendants to the Plaintiffs for their loss
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`arising out of the Defendants’ violation of MHPAEA.
`
`79. In