Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.2 Page 1 of 17
`
`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
`
`D.H., and I.H.,
`
`COMPLAINT
`
`Plaintiffs,
`
`Case No. 2:21-cv-00491-JCB
`
`vs.
`
`ANTHEM BLUE CROSS BLUE SHIELD,
`
`Defendant.
`
`Plaintiffs D.H. and I.H., through their undersigned counsel, complain and allege against
`
`Defendant Anthem Blue Cross Blue Shield (“Anthem”) as follows:
`
`PARTIES, JURISDICTION AND VENUE
`
`1. D.H. and I.H. are natural persons residing in Marion County, Indiana. D.H. is I.H.’s
`
`father.
`
`2. Anthem is the trade name of Anthem Insurance Companies, Inc. An Indiana corporation
`
`which is an independent licensee of the nationwide Blue Cross and Blue Shield network
`
`of providers. Anthem was the insurer and claims administrator, as well as the fiduciary
`
`1
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.3 Page 2 of 17
`
`under ERISA for the insurance plan providing coverage for the Plaintiffs (“the Plan”)
`
`during the treatment at issue in this case.
`
`3. The Plan is a fully-insured employee welfare benefits plan under 29 U.S.C. §1001 et.
`
`seq., the Employee Retirement Income Security Act of 1974 (“ERISA”). D.H. was a
`
`participant in the Plan and I.H. was a beneficiary of the Plan at all relevant times.
`
`4. I.H. received medical care and treatment at Wingate Wilderness Therapy (“Wingate”)
`
`Vista at Dimple Dell (“Vista”) and Explorations. These are licensed treatment facilities
`
`which provide sub-acute inpatient treatment to adolescents with mental health,
`
`behavioral, and/or substance abuse problems. Wingate and Vista are located in Utah and
`
`Explorations is in Montana
`
`5. Anthem denied claims for payment of I.H.’s medical expenses in connection with her
`
`treatment at Wingate, Vista, and Explorations.
`
`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, because Anthem does
`
`business in Utah, and a significant portion of the treatment at issue took place in Utah. In
`
`addition, venue in Utah will save the Plaintiffs costs in litigating this case. 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
`
`
`
`2
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.4 Page 3 of 17
`
`appropriate equitable relief under 29 U.S.C. §1132(a)(3) based on the Defendant’s
`
`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
`
`I.H.’s Developmental History and Medical Background
`
`9. I.H. was removed from her biological mother’s care in Russia around the time that she
`
`was two years old due to severe neglect which led to a hospitalization. I.H. then spent
`
`four months in an orphanage before she was adopted by D.H.
`
`10. D.H. suffered from a variety of conditions which caused her to exhibit severe behavioral
`
`problems such as suicidal ideation and self-harm, including:
`
`F94.1 Reactive Attachment Disorder
`F33.1 Major Depressive Disorder, Recurrent Episode, Moderate
`F90.2 Attention-deficit/hyperactivity Disorder, Combined Presentation
`F81.81 Specific Learning Disorder, With Impairment in Written Expression
`F81.0 Specific Learning Disorder, With Impairment in Reading
`Z62.820 Parent-child Relational Problem
`
`11. These problems were further compounded following incidents of sexual abuse.
`
`
`Wingate 1st admission
`
`12. I.H. was admitted to Wingate on August 14, 2017.
`
`13. In a letter dated January 10, 2019, Anthem denied payment for I.H.’s treatment at
`
`Wingate. The letter stated in part:
`
`A denial is being issued effective 01/10/19 for Psychiatric Residential Treatment
`at Wingate Wilderness Therapy. One of the coverage requirements under your
`health benefit plan is that the facility must be appropriately licensed and
`accredited to render covered services. The medical information we received
`indicates that the services requested were rendered by a facility that does not
`satisfy this requirement; Therefore, those services would not be considered
`covered services. This review was a benefit review. It was not about treatment.
`
`
`
`3
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.5 Page 4 of 17
`
`The review looked at the benefit plan. If there are no benefits, there is no
`coverage for the service.
`
`14. On April 25, 2019, D.H. submitted a level one appeal of the denial of I.H.’s treatment at
`
`Wingate. D.H. reminded Anthem of its responsibilities under ERISA and stated that it
`
`was obligated to take into account all of the information he had provided, to provide him
`
`with a full, fair, and thorough review, to give him the specific reasoning for the
`
`determination as well as the information necessary to perfect the claim, and also to utilize
`
`appropriately qualified reviewers and to divulge their identities.
`
`15. D.H. objected to Anthem’s contention that Wingate was not appropriately licensed. He
`
`pointed out that Wingate was in fact licensed by the State of Utah. He stated that in spite
`
`of Anthem’s arguments that Wingate needed to be accredited, he was unable to find any
`
`such requirement in his policy. He accused Anthem of arbitrarily adding requirements to
`
`deny coverage even when these were not reflected by the insurance policy.
`
`16. D.H. wrote that Wingate furthermore met the Plan’s definition of a “provider” and should
`
`have been approved on that basis alone. He wrote that the Plan was subject to MHPAEA
`
`which compelled insurers to offer mental health benefits to their insureds “at parity” with
`
`analogous medical or surgical benefits. D.H. identified skilled nursing and inpatient
`
`rehabilitation as some of the medical or surgical analogues to the mental healthcare I.H.
`
`received. D.H. asked Anthem to provide evidence that its decision to deny care was in
`
`compliance with MHPAEA.
`
`17. In a letter dated May 21, 2019, Anthem upheld the denial of payment for I.H.’s treatment
`
`at Wingate. The letter gave the following justification for the denial:
`
`
`
`4
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.6 Page 5 of 17
`
`Wingate Wilderness Therapy is a non-accredited facility and is thus not covered
`by your [employer’s]1 policy for the requested services. Please note the definition
`of a coverable facility on page M-119 of your [employee] benefits booklet:
`
`Facility – A facility including but not limited to, a Hospital, freestanding
`Ambulatory Surgical Facility, Chemical Dependency Treatment Facility,
`Residential Treatment Center, Skilled Nursing Facility, Home Health Care
`Agency or mental health facility, as defined in this Certificate. The Facility must
`be licensed, accredited, registered or approved by the Joint Commission or
`the Commission on Accreditation of Rehabilitation Facilities (CARF), as
`applicable, or meet specific rules set by us. (emphasis in original)
`
`The letter then stated that D.H. would be provided with the documents he requested.
`
`18. On September 12, 2019, D.H. submitted a level two appeal of the denial of I.H.’s
`
`treatment at Wingate. D.H. attached his level one appeal to the request and asked for a
`
`new reviewer to thoroughly address all of the arguments he had made.
`
`19. In a letter dated October 10, 2019, Anthem upheld the denial of payment for I.H.’s
`
`treatment at Wingate. The decision to deny coverage was attributed to an unidentified
`
`panel of four individuals. The panel gave an identical justification for the denial as the
`
`May 21, 2019, letter and again stated care was denied due to a lack of accreditation.
`
`Wingate 2nd admission
`
`20. I.H. was admitted to Wingate for a second time on November 5, 2018.
`
`21. On May 31, 2019, D.H. submitted a level one appeal of the denial of I.H.’s second
`
`admission to Wingate. D.H. stated that he had spoken to a representative at Wingate and
`
`had been informed that I.H.’s claims had been denied due to a lack of precertification. He
`
`stated that neither he nor Wingate had been provided with a written justification for the
`
`
`1 As D.H.’s employer is a small family business, he could easily be identified by the employer’s
`name alone. As a result, any references to the employer in the complaint have been redacted for
`privacy reasons.
`
`
`
`5
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.7 Page 6 of 17
`
`denial and so the only reason he had become aware payment had been denied was from a
`
`call with an Anthem representative name Mia.
`
`22. D.H. quoted the precertification provision of the insurance policy and pointed out that
`
`while members were “encouraged” to obtain precertification, nowhere was this listed as a
`
`requirement for care to be approved. D.H. wrote that not only did the insurance policy not
`
`allow for a complete denial of benefits based on a failure to obtain precertification, but it
`
`also allowed for a retrospective review in cases where precertification was not obtained.
`
`D.H. requested that Anthem perform a retrospective review of the denial.
`
`23. In a letter dated December 24, 2019, Anthem upheld the denial of payment and stated in
`
`pertinent part:
`
`The facility request for Wilderness Camp level of care is denied as of 11.5.2018 .
`[sic] There are no benefits because there are no benefits in your contract for this
`level of care. This review was a benefit review. It was not about treatment. The
`review looked at the benefit plan. If there are no benefits , [sic] there is no
`coverage for the service. If your policy has not terminated , [sic] you may have
`other benefits available to you. Please contact us for further information.
`
`24. On February 13, 2020, D.H. submitted a level two appeal of the denial of payment for
`
`I.H.’s treatment. D.H. stated that while he was grateful that Anthem was no longer
`
`denying payment due to a lack of preauthorization, he still believed that I.H.’s treatment
`
`was a covered benefit and should have been approved.
`
`25. He quoted the Plan’s definition of a “Provider” and argued that because Wingate was a
`
`“duly licensed person or facility” acting within the scope of that license it met that
`
`definition and should have been approved.
`
`26. He stated that while the insurance policy did contain an exclusion for “wilderness
`
`camps,” it did not define the term. He argued that Wingate was a duly licensed program
`
`
`
`6
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.8 Page 7 of 17
`
`which met the stringent requirements set forth by the State of Utah to maintain this
`
`licensure and that it was much more than a “camp” as Anthem had dismissively termed it.
`
`27. D.H. continued to voice his concern that Anthem’s denial was in violation of MHPAEA.
`
`He reiterated that MHPAEA required insurers to administer mental health coverage “at
`
`parity” with comparable medical or surgical benefits. He contended that the treatment
`
`I.H. received would have been covered if it had been provided in a traditional brick-and-
`
`mortar setting but had been excluded based solely on the facility type and geographic
`
`location.
`
`28. D.H. stated that Anthem did not impose these restrictions on comparable medical or
`
`surgical care such as skilled nursing facilities and that the decision to categorically
`
`exclude outdoor behavioral health treatment violated generally accepted standards of
`
`medical practice.
`
`29. D.H. asked Anthem to conduct a MHPAEA compliance analysis and in particular, he
`
`asked that if he was incorrect in his assertion that Anthem did not exclude skilled nursing
`
`care based on geographic location or facility type that it provide him direct examples of
`
`how it did so.
`
`30. In a letter dated March 17, 2020, Anthem upheld the denial of payment under the
`
`following justification:
`
`The denial of wilderness treatment at Wingate Wilderness Therapy for dates of
`service November 5, 2018 through December 19, 2018 due to wilderness
`treatment not being a covered benefit has been upheld. Wilderness treatment is
`not listed as a covered service in your [employee] benefit booklet. On page M-61
`of your [employee] benefit booklet, under the heading Non Covered
`Services/Exclusions it states:
`
`For the following:
`• Custodial Care, convalescent care or rest cures.
`
`
`
`7
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.9 Page 8 of 17
`
`• Domiciliary care provided in a residential institution, treatment center,
`supervised living or halfway house, or school because a Member’s own
`home arrangements are not available or are unsuitable, and consisting
`chiefly of room and board, even if therapy is included.
`• Care provided or billed by a hotel, health resort, convalescent home, rest
`home, nursing home or other extended care facility home for the aged,
`infirmary, school infirmary, institution providing education in special
`environments, supervised living or halfway house, or any similar facility
`or institution.
`• Services or care provided or billed by a school, Custodial Care center for
`the developmentally disabled, halfway house, or outward bound programs,
`even if psychotherapy is included.
`• Wilderness camps.
`
`
`Your father disagreed with the decision to deny wilderness treatment as a non-
`covered benefit. The Health Plan provides coverage for hospital care and
`residential treatment services when approved as Medically Necessary through
`utilization review by Anthem Blue Cross. Wingate Wilderness Therapy is not
`licensed as a residential treatment center or a hospital. Wilderness treatment
`services are a non-covered benefit.
`
`Your father said the denial of services is in violation of the Patient Protection and
`Affordable Care Act of 2010 (PPACA) and the Mental Health Parity Addiction
`Equity Act of 2008 (MHPAEA). Per our medical director, the health plan’s
`determination is not a violation of the PPACA or MHPAEA because it does not
`indicate that wilderness treatment programs are a covered benefit for mental
`health or substance use disorders.
`
`
`Vista
`
`31. I.H. was admitted to Vista on November 8, 2017.
`
`32. In a letter dated November 8, 2017, Anthem denied payment for I.H.’s treatment at Vista.
`
`The letter stated in pertinent part:
`
`The request for Residential Treatment Center care is denied as of 11/8/17. One of
`the coverage requirements under your health benefit plan is that the facility must
`be appropriately licensed and accredited to render covered services. The medical
`information we received indicates that the services requested are rendered by a
`facility that does not satisfy this requirement; therefore, those services would not
`be considered covered services.
`
`33. On April 30, 2018, D.H. submitted a level one appeal of the denial of payment. He asked
`
`Anthem to provide him with detailed and specific examples of the information it relied
`
`
`
`8
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.10 Page 9 of 17
`
`upon to determine that I.H.’s treatment was not a covered benefit and asked it to make
`
`direct references to his arguments.
`
`34. D.H. contended that Anthem had denied I.H.’s treatment in error as Vista was in fact
`
`licensed by the State of Utah to provide residential treatment services. Consequently, it
`
`met the Plan’s definition of both a residential treatment facility as well as a provider. He
`
`stated that because Vista was licensed, Anthem had either elected to ignore this fact or
`
`had simply misinterpreted the insurance policy. D.H. included a copy of Vista’s
`
`residential treatment license with the appeal.
`
`35. In a letter dated May 30, 2018, Anthem upheld the denial of payment for I.H.’s treatment.
`
`The letter stated in part:
`
`[T]he facility must be appropriately licensed and accredited to render covered
`services. I understand an appeal was requested because you do not agree with the
`previous denial decision. The previous coverage decision is being upheld.
`Per your health certificate under definitions on page M-121 it states: “Residential
`Treatment Center / Facility - A Provider licensed and operated as required by law,
`which includes:
`1. Room, board and skilled nursing care (either an RN or LVN/LPN) available
`on-site at least eight hours daily with 24 hour availability;
`2. A staff with one or more Physicians available at all times.
`3. Residential treatment takes place in a structured facility-based setting.
`4. The resources and programming to adequately diagnose, care and treat a
`psychiatric and/or substance use disorder.
`5. Facilities are designated residential, subacute, or intermediate care and may
`occur in care systems that provide multiple levels of care.
`6. Is fully accredited by The Joint Commission (TJC) the Commission on
`Accreditation of Rehabilitation Facilities (CARF), the National Integrated
`Accreditation for Healthcare Organizations (NIAHO), or the Council on
`Accreditation (COA)”
`
`36. On September 19, 2018, D.H. submitted a level two appeal of the denial of payment for
`
`I.H.’s treatment. He again contended that treatment at Vista was a covered benefit under
`
`the terms of the Plan. He wrote that Anthem had failed to respond to his concerns, had
`
`
`
`9
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.11 Page 10 of 17
`
`not provided him with the documentation or information he requested, and had not
`
`complied with its fiduciary duty to provide him with a full, fair, and thorough review.
`
`37. He contended that Anthem’s denial violated MHPAEA and the Patient Protection and
`
`Affordable Care Act by discriminating against a provider who was acting within the
`
`scope of their license.
`
`38. D.H. contended that Anthem was additionally violating MHPAEA by denying payment
`
`due to Vista not being accredited but not requiring skilled nursing facilities to be
`
`accredited. D.H. argued that this constituted a treatment limitation as Anthem had
`
`imposed requirements which only applied to mental health facilities and not their medical
`
`or surgical counterparts.
`
`39. He asked Anthem to justify why it required residential treatment facilities to be both
`
`licensed and accredited but did not require skilled nursing facilities to be both licensed
`
`and accredited. D.H. asked Anthem to address each of the arguments he raised in turn,
`
`and if the denial was maintained that it explain to him in detail why MHPAEA and the
`
`terms and conditions of his insurance policy appeared not to apply.
`
`40. In a letter dated November 6, 2018, an appeal review panel comprised of five individuals
`
`upheld the denial of payment. The panel quoted the definition of Residential Treatment
`
`Center / Facility as previously quoted in the May 30, 2018 denial letter and then stated,
`
`“Vista at Dimple Dell Canyon is not an accredited facility and thus it is ineligible for
`
`coverage for the requested level of care.”
`
`Explorations
`
`41. I.H. was admitted to Explorations on August 20, 2018.
`
`
`
`10
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.12 Page 11 of 17
`
`42. In a series of Explanation of Benefits (“EOB”) statements Anthem denied payment for
`
`I.H.’s treatment under the justification that “The time limit for filing has expired.”
`
`Anthem also sent additional EOB’s which stated that “Service not authorized” and
`
`“Services denied at the time authorization/pre-certification was requested.”
`
`43. On April 24, 2020, D.H. appealed the denial of payment for I.H.’s treatment. D.H. again
`
`reminded Anthem of its responsibilities under ERISA and stated that its failure to
`
`disclose the identity and qualifications of its reviewers, coupled with the lack of a
`
`detailed explanation concerning why care was denied, did not satisfy Anthem’s
`
`obligations under ERISA. He argued that accordingly, Anthem had not provided him
`
`with the full, fair, and thorough review it was required to perform under ERISA.
`
`44. D.H. stated that he had submitted his claims in accordance with the claims submission
`
`timeline outlined in the insurance policy. D.H. quoted the relevant language and pointed
`
`out that while Anthem preferred claims to be submitted within ninety days, so long as
`
`they were submitted “as soon as reasonably possible” and within one year and ninety
`
`days, they would be considered timely. D.H. argued that he had submitted the claims in
`
`accordance with these terms and they should have been considered timely. He contended
`
`that this was especially true given that a significant contributor to the delay was caused
`
`by Anthem inexplicably losing the claims, forcing him to resubmit them.
`
`45. D.H. argued that I.H.’s treatment should not have been denied due to a lack of
`
`preauthorization. He pointed out that Anthem had previously denied I.H.’s treatment at
`
`Wingate for this reason but then later abandoned it after he explained that the Plan
`
`allowed for retrospective reviews to be performed. D.H. asked Anthem to perform a
`
`retrospective review of the denial.
`
`
`
`11
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.13 Page 12 of 17
`
`46. D.H. did not receive a response to his appeal.
`
`47. The Plaintiffs exhausted their pre-litigation appeal obligations under the terms of the Plan
`
`and ERISA insofar as they were able given Anthem’s failure to respond to D.H.’s appeal
`
`for the treatment at Elevations.
`
`48. The denial of benefits for I.H.’s treatment was a breach of contract and caused D.H. to
`
`incur medical expenses that should have been paid by the Plan in an amount totaling over
`
`$215,000.
`
`FIRST CAUSE OF ACTION
`
`(Claim for Recovery of Benefits Under 29 U.S.C. §1132(a)(1)(B))
`
`49. 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
`
`Anthem, 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).
`
`50. Anthem and the Plan failed to provide coverage for I.H.’s treatment 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.
`
`51. 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).
`
`52. The denial letters produced by Anthem do little to elucidate whether Anthem conducted a
`
`meaningful analysis of the Plaintiffs’ appeals or whether it provided them with the “full
`
`
`
`12
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.14 Page 13 of 17
`
`and fair review” to which they are entitled. Anthem failed to substantively respond to the
`
`issues presented in D.H.’s appeals and did not meaningfully address the arguments or
`
`concerns that the Plaintiffs raised during the appeals process.
`
`53. Anthem and the agents of the Plan breached their fiduciary duties to I.H. when they failed
`
`to comply with their obligations under 29 U.S.C. §1104 and 29 U.S.C. §1133 to act
`
`solely in I.H.’s interest and for the exclusive purpose of providing benefits to ERISA
`
`participants and beneficiaries and to provide a full and fair review of I.H.’s claims.
`
`54. The actions of Anthem and the Plan in failing to provide coverage for I.H.’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))
`
`55. MHPAEA is incorporated into ERISA and is enforceable by ERISA participants and
`
`beneficiaries as a requirement of both ERISA and MHPAEA. The obligation to comply
`
`with both ERISA and MHPAEA is part of Anthem’s fiduciary duties.
`
`56. 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.
`
`57. 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
`
`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).
`
`
`
`13
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.15 Page 14 of 17
`
`58. Impermissible nonquantitative treatment limitations under MHPAEA include, but are not
`
`limited to, medical management standards limiting or excluding benefits based on
`
`medical necessity; refusal to pay for higher-cost treatment until it can be shown that a
`
`lower-cost treatment is not effective; and restrictions based on geographic location,
`
`facility type, provider specialty, or 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), (F), and (H).
`
`59. D.H. specifically identified limitations on geographic location and provider type as
`
`examples of Anthem’s violation of MHPAEA. He contended that if I.H. had received the
`
`exact same treatment in a traditional brick and mortar environment rather than at Wingate
`
`it would have been approved. D.H. pointed out that Anthem did not restrict skilled
`
`nursing care in this manner.
`
`60. The medical necessity criteria used by Anthem 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.
`
`61. Comparable benefits offered by the Plan for medical/surgical treatment analogous to the
`
`benefits the Plan excluded for I.H.’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 Anthem exclude or restrict coverage
`
`of medical/surgical conditions by imposing restrictions such as an acute care requirement
`
`for a 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.
`
`
`
`14
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.16 Page 15 of 17
`
`62. When Anthem 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. Anthem and the
`
`Plan evaluated I.H.’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. As an example of disparate application of medical necessity criteria between
`
`medical/surgical and mental health treatment, D.H. pointed out that Anthem had denied
`
`I.H.’s treatment in large part because the facilities in question allegedly did not possess
`
`sufficient accreditation.
`
`64. D.H. argued that Anthem had ignored the fact that I.H. received services from programs
`
`and facilities which were specifically licensed by the states in which they resided.
`
`Anthem does not require sub-acute inpatient programs or facilities such as skilled nursing
`
`facilities, inpatient rehabilitation facilities, or inpatient hospice facilities to be accredited
`
`in order for services to be approved.
`
`65. Anthem does not require all sub-acute inpatient programs or facilities providing treatment
`
`for medical and surgical conditions to be accredited in order to be covered.
`
`66. Anthem does not deny payment of benefits for sub-acute inpatient treatment of medical
`
`and surgical disorders based on the lack of accreditation of those programs or facilities.
`
`67. In fact, apart from one paragraph in one denial letter stating that it complied with
`
`MHPAEA, Anthem failed to address D.H.’s MHPAEA arguments at all and did not
`
`contest his allegations that it violated MHPAEA. D.H. asked that Anthem to provide
`
`
`
`15
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.17 Page 16 of 17
`
`clear and specific examples of its MHPAEA compliance or lack thereof, but Anthem
`
`declined to respond.
`
`68. In this manner, the Defendant violates 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 Anthem, 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.
`
`69. The violations of MHPAEA by Anthem 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 Defendant violate MHPAEA;
`
`(b) An injunction ordering the Defendant 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 Defendant 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 Defendant as
`
`a result of its violations of MHPAEA;
`
`(e) An order requiring an accounting by the Defendant of the funds wrongly withheld
`
`from participants and beneficiaries of the Plan as a result of the Defendant’s
`
`violations of MHPAEA;
`
`
`
`16
`
`

`

`Case 2:21-cv-00491-JCB Document 2 Filed 08/13/21 PageID.18 Page 17 of 17
`
`(f) An order based on the equitable remedy of surcharge requiring the Defendant to
`
`provide payment to the Plaintiffs as make-whole relief for their loss;
`
`(g) An order equitably estopping the Defendant from denying the Plaintiffs’ claims in
`
`violation of MHPAEA; and
`
`(h) An order providing restitution from the Defendant to the Plaintiffs for their loss
`
`arising out of the Defendant’s violation of MHPAEA.
`
`70. In addition, Plaintiffs are entitled to an award of prejudgment interest pursuant to U.C.A.
`
`§15-1-1, and attorney fees and costs pursuant to 29 U.S.C. §1132(g)
`
`WHEREFORE, the Plaintiffs seek relief as follows:
`
`1.
`
`Judgment in the total amount that is owed for I.H.’s medically necessary treatment at
`
`Wingate, Vista, and Explorations under the terms of the Plan, plus pre and post-
`
`judgment interest to the date of payment;
`
`Appropriate equitable relief under 29 U.S.C. §1132(a)(3) as outlined in Plaintiffs’
`
`Second Cause of Action;
`
`Attorney fees and costs incurred pursuant to 29 U.S.C. §1132(g); and
`
`For such further relief as the Court deems just and proper.
`
`DATED this 13th day of August, 2021.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By s/ Brian S. King
`
`Brian S. King
`
`Attorney for Plaintiffs
`
`
`
`
`
`2.
`
`3.
`
`4.
`
`
`
`
`
`County of Plaintiffs’ Residence:
`Marion County, Indiana
`
`
`
`
`17
`
`