Case 2:21-cv-00544-CMR Document 2 Filed 09/16/21 PageID.2 Page 1 of 20
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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
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`Attorneys for Plaintiffs
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`THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH, CENTRAL DIVISION
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`S.S., and E.S.,
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`COMPLAINT
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`Plaintiffs,
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`Case No. 2:21-cv-00544 - CMR
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`vs.
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`CIGNA HEALTH and LIFE INSURANCE
`COMPANY, and the INTEL CORPORATION
`BENEFITS PLAN.
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`Defendants.
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`Plaintiffs S.S. and E.S., through their undersigned counsel, complain and allege against
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`Defendants Cigna Health and Life Insurance Company (“Cigna”) and the Intel Corporation
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`Benefits Plan (“the Plan”) as follows:
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`PARTIES, JURISDICTION AND VENUE
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`1. S.S. and E.S. are natural persons residing in Loudoun County, Virginia. S.S. is E.S.’s
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`father.
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`2. Cigna is an insurance company headquartered in Bloomfield, Connecticut and was the
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`third-party claims administrator, as well as the fiduciary under ERISA for the Plan during
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`the 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”). S.S. was a participant
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`in the Plan and E.S. was a beneficiary of the Plan at all relevant times. S.S. and E.S.
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`continue to be participants and beneficiaries of the Plan.
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`4. E.S. received medical care and treatment at SUWS of the Carolinas (“SUWS”) from
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`September 20, 2018, to December 5, 2018, and Dragonfly Transitions (“Dragonfly”)
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`from December 7, 2018, to August 21, 2019. These are treatment facilities which provide
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`sub-acute inpatient treatment to adolescents with mental health, behavioral, and/or
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`substance abuse problems. SUWS is located in North Carolina and Dragonfly is located
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`in Oregon
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`5. Cigna, acting in its own capacity or through its subsidiary and affiliate Cigna Behavioral
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`Health denied claims for payment of E.S.’s medical expenses in connection with her
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`treatment at SUWS and Dragonfly.
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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 Cigna does
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`business in Utah and across the United States. Moreover, Intel Corporation, the sponsor
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`of the Plan, has business offices in Salt Lake County and Utah County and has, and is
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`committing to growing, its business presence in Utah. In addition, venue in Utah will
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`save the Plaintiffs costs in litigating this case. Finally, in light of the sensitive nature of
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`the medical treatment at issue, it is the Plaintiffs’ desire that the case be resolved in the
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`State of Utah where it is more likely their privacy will be preserved.
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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.S.’s Developmental History and Medical Background
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`9. As a young child, E.S. struggled with learning new concepts and paying attention. She
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`began seeing a psychiatrist and was diagnosed with ADHD. She would often act out and
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`throw angry tantrums during which she would throw things, destroy property, and
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`physically attack others. E.S. also started seeing a therapist.
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`10. E.S. was caught with cigarettes in her possession on multiple occasions but when
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`confronted would always deny that they were hers. E.S.’s violent behaviors escalated as
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`she got older and the police were often called. On one occasion, E.S. got into a physical
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`altercation with her father and then claimed that she had been abused and filed a report
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`with child protective services. The abuse claim was found to be without merit and was
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`dismissed. E.S. later made another claim concerning sexual abuse which she later
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`recanted and which was also dismissed.
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`11. E.S. continued to struggle and her school performance significantly declined. E.S. started
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`attending an intensive outpatient program and afterwards started seeing a new therapist.
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`E.S.’s therapist became concerned about the unfounded abuse allegations E.S. was
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`making and recommended that she meet with a psychologist.
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`12. E.S. continued to escalate her behaviors and on one occasion when she was arguing with
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`her mother she became enraged and punched her in the face, resulting in the police being
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`called and E.S. being hospitalized for psychiatric treatment. While at the hospital, E.S.
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`accused her mother of abuse and of pushing her down the stairs. This resulted in yet
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`another investigation but the claims were again found to be unsubstantiated.
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`13. E.S. made abuse allegations concerning her teachers as well. E.S. was required to meet
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`with a juvenile probation officer and follow a behavioral contract, however she refused to
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`stop smoking and abide by the terms of the contract and was made to complete additional
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`community service.
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`14. E.S. engaged in increasingly erratic behaviors and threatened to run away from home and
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`spend her time using drugs while homeless. E.S. often left home without permission and
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`on at least two occasions slept in a car with someone she just met. S.S. worried that if
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`E.S. did not soon receive some kind of therapeutic intervention she was at a highly
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`elevated risk of danger such as falling prey to human traffickers, or even death.
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`15. E.S. was admitted to SUWS on September 20, 2018.
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`SUWS
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`16. In a series of Explanation of Benefits (“EOB”) statements, Cigna denied payment for
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`E.S.’s treatment under code A0: “YOUR PLAN BOOKLET LISTS THE SERVICES
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`AND PROCEDURES COVERED BY YOUR PLAN. THE PLAN WILL ONLY PAY
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`FOR SERVICES LISTED IN THE BOOKLET.” (emphasis in original)
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`17. On November 22, 2019, S.S. appealed the denial of payment for E.S.’s treatment. S.S.
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`stated that he was entitled to certain protections under ERISA, including a requirement
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`that Cigna take into account all of the information he provided, that it utilize
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`appropriately qualified reviewers, that it provide him with a clear and specific response
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`which referenced the Plan language on which the denial was based, and that it provide
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`him with a full, fair, and thorough review.
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`18. S.S. contended that the treatment provided at SUWS was a covered benefit under the
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`terms of the Plan as SUWS was a licensed and accredited facility which clearly met the
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`requirements listed in the insurance policy for an “Other Health Care Facility.”
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`19. S.S. asked Cigna to perform a MHPAEA compliance analysis and in the event the denial
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`was upheld he asked Cigna to address all of the issues he had raised in the appeal and
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`explain how its decision was compliant with federal law and the terms and conditions of
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`the insurance policy.
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`20. S.S. additionally asked to be provided with the specific reasons for the denial along with
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`any corresponding evidence, any administrative service agreements that existed, any
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`clinical guidelines or medical necessity criteria related to the claim, the Plan’s mental
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`health, substance use, skilled nursing, inpatient rehabilitation, and hospice criteria, as
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`well as any reports from any physician or other professional regarding the claim.
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`(collectively the “Plan Documents”)
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`21. After Cigna failed to respond to the appeal in a timely manner, S.S. reached out to Cigna
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`and in a February 2020, email was told by Cigna representative Jasmine K. that the
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`appeal had not been processed as the documents submitted had mistakenly been classified
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`as being related to Dragonfly. The representative assured S.S. that his appeal would be
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`resubmitted and processed.
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`22. In a letter dated March 2, 2020, Cigna upheld the denial of payment under the following
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`rationale:
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`The clinical basis for this decision is: Based upon current available information,
`coverage for the requested service cannot be approved because there is
`insufficient scientific evidence to demonstrate the safety and/or effectiveness of
`Wilderness Therapy Programs. At the present time, per Cigna Coverage Policy
`Complementary and Alternative Medicine (0086), this treatment falls under the
`category of experimental/investigational/unproven. Your benefit plan does not
`cover experimental/investigational/unproven services.
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`Please note that claims for therapeutic services rendered by an independently
`licensed health care professional for the treatment of a mental health condition
`and/or substance use disorder while residing at the wilderness program may be
`submitted for benefit coverage subject to the terms and conditions of the Cigna
`customer’s health plan.
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`23. On April 7, 2020, S.S. submitted a second level one appeal of the denial. S.S. expressed
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`concern that Cigna appeared to have altered its denial rationale from SUWS not being a
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`covered service to being excluded due to being an experimental/investigational service.
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`He stated that Cigna appeared to be engaging in a “trial run” of different denials in an
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`attempt to wait until his appeals were exhausted and deprive him of the opportunity to
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`respond. He accused Cigna of acting in bad faith and stated that a second level one appeal
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`was necessary to address Cigna’s new denial.
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`24. S.S. contended that Cigna had not addressed his arguments and had not abided by its
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`responsibilities under ERISA. S.S. reiterated that the terms of the insurance policy did not
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`exclude the outdoor behavioral health treatment E.S. received and according to the
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`insurance policy, this treatment was a covered benefit.
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`25. S.S. quoted the Plan’s definition of an “Other Health Care Facility” and stated that
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`SUWS clearly met this definition as it was a licensed and accredited facility which met
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`all of the stringent requirements set by the State of North Carolina to provide these
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`therapeutic services to adolescents in an outdoor residential setting.
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`26. S.S. then quoted the Plan’s definition for “experimental, investigational, or unproven”
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`care and contended that the treatment provided at SUWS did not meet this definition, and
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`furthermore, extensive peer reviewed literature had shown outdoor behavioral health
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`facilities to be both effective and evidence based.
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`27. S.S. also quoted the Plan’s definition for “Medically Necessary/Medical Necessity” and
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`stated that E.S.’s treatment also satisfied this definition. S.S. reminded Cigna that his
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`insurance policy superseded any other criteria it elected to use.
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`28. S.S. wrote that as E.S.’s treatment was not excluded under the terms of the Plan and was
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`in fact covered under several definitions, it appeared that Cigna had relied on proprietary
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`internal criteria to deny care. S.S. quoted a portion of Cigna’s residential treatment
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`criteria which equated wilderness care with “boot camps” and stated that they frequently
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`did not utilize adequately trained staff, or provide an appropriate intensity or variety of
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`services, and they were “nearly universally” denied accreditation by regulatory agencies
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`such as the Joint Commission.
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`29. S.S. argued that Cigna was relying on outdated data which was more than a decade old.
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`He stated that E.S. did receive appropriate clinical treatment from a multidisciplinary
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`team of psychologists, therapists, and psychiatrists. He stated that the primary distinction
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`between traditional residential treatment centers and outdoor behavioral health programs
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`was not the content of the treatment, but rather where the services took place.
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`30. S.S. reminded Cigna that SUWS was a licensed and accredited treatment program. He
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`stated that outdoor behavioral health services were an effective and well recognized
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`treatment modality and included articles to that effect, including contact information for
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`Dr. Michael Gass Ph.D., LMFT, one of the leading experts in the field. S.S. encouraged
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`Cigna to reach out to Dr. Gass with any questions it had regarding the efficacy of
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`wilderness treatment.
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`31. S.S. voiced his concern that Cigna’s denial violated MHPAEA. He reminded Cigna that
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`MHPAEA compelled insurers to offer mental health benefits “at parity” with medical or
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`surgical benefits at the same level of care. He wrote that SUWS was an intermediate level
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`mental health treatment facility and the appropriate medical or surgical analogues were
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`environments like hospice, skilled nursing, or inpatient rehabilitation facilities.
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`32. S.S. referenced a court ruling in Johnathan Z. v. Oxford Health Plans in which the court
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`confirmed that these facilities were the appropriate analogues to outdoor behavioral
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`health care.
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`33. He contended that Cigna was in violation of MHPAEA in three major respects:
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`1. It evaluated the medical necessity of E.S.’s treatment using proprietary criteria
`but appeared to have no such clinical criteria for analogous medical or
`surgical care. S.S. stated that Cigna had done this despite the fact that his
`insurance policy contained no exclusion for wilderness treatment, and this
`exclusion was only found in proprietary criteria.
`2. It placed a limitation on facility type by requiring outdoor behavioral health
`facilities to be licensed as a residential treatment center but having no
`comparable restriction on the licensure of medical or surgical services.
`3. It restricted the availability of outdoor behavioral treatment based not on the
`content of the services offered, but instead denied care primarily because the
`services did not take place in a “brick-and-mortar setting.”
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`34. S.S. voiced his suspicions that Cigna denied any and all outdoor behavioral health claims
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`automatically as they were all easily identifiable due to their use of the “1006” revenue
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`code used to submit claims. He stated that this was another example of Cigna’s
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`discrimination against wilderness providers.
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`35. S.S. asked that if he were incorrect in his assessment that Cigna violated MHPAEA that it
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`demonstrate its compliance using specific examples. He also asked Cigna to conduct a
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`MHPAEA analysis of the Plan and to provide him with a copy of the results of this
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`analysis. He stated that he was entitled to these materials under both ERISA and
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`MHPAEA. S.S. also requested a copy of the Plan Documents.
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`36. In a letter dated July 1, 2020, Cigna upheld the denial of payment for E.S.’s treatment.
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`The letter gave the following justification for the denial:
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`Based upon current available information, coverage for the requested service
`cannot be approved because there is insufficient scientific evidence to
`demonstrate the safety and/or effectiveness of Wilderness Therapy Programs. At
`the present time, per Medical Coverage Policy Complementary and Alternative
`Medicine (0086), this treatment falls under the category of
`experimental/investigational/unproven. Your benefit plan does not cover
`experimental/ investigational/unproven services. Please note that claims for
`therapeutic services rendered by an independently licensed health care
`professional for the treatment of a mental health condition and/or substance use
`disorder while residing at the wilderness program may be submitted for benefit
`coverage subject to the terms and conditions of the Cigna customer’s health plan.
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`Dragonfly
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`37. E.S. was admitted to Dragonfly on December 7, 2018.
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`38. In a letter dated July 18, 2019, Cigna denied payment for E.S.’s treatment under the
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`following rationale:
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`Based upon the available clinical information, your symptoms did not meet
`Behavioral Health Medical Necessity Criteria for admission and continued stay at
`the Residential Mental Health Treatment for Adults level of care from 12/7/2018
`– 12/31/2019 as the information provided described you as being able to
`understand information presented to you and being in behavioral control. There
`was no report of any physical instability or psychosis driving your behaviors.
`There was no evidence of threat to anybody. As there was nothing proposed
`requiring around-the-clock structure and interventions, there was nothing
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`suggesting that you would not be able to successfully and safely use structured
`outpatient services to continue working on your trauma issues and mastery of
`healthy coping skills and for medication management rather than an extended stay
`in an around-the-clock setting.
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`39. On November 26, 2019, S.S. appealed the denial of payment for E.S.’s treatment. S.S.
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`once more reminded Cigna that it was required under ERISA to provide him with a full,
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`fair, and thorough review.
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`40. S.S. argued that Cigna had evaluated E.S.’s treatment using standards for the incorrect
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`level of care. He wrote that Dragonfly provided transitional care to E.S. – a level of care
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`designed to help individuals transition between residential treatment and home life –
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`however Cigna had evaluated E.S.’s treatment as if it had been traditional residential
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`treatment care. He argued that because E.S. was not receiving residential treatment
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`services, whether or not she met Cigna’s residential treatment criteria was irrelevant.
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`41. S.S. argued that transitional services were a covered benefit under the terms of the Plan.
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`He pointed out that while Cigna did not appear to have specific criteria for transitional
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`living, it did have guidelines for halfway houses which were very similar to transitional
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`services. He stated that Dragonfly was a licensed and accredited transitional living
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`facility and if it were a halfway house, it would have met those criteria.
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`42. S.S. argued that Cigna’s denial violated generally accepted standards of medical practice
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`and that its denial had more in common with acute inpatient hospitalization than
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`residential treatment and its requirements of factors such as “physical instability or
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`psychosis” were impermissible. He also contended that these requirements violated
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`MHPAEA as they were not required of analogous medical or surgical services.
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`43. S.S. asked Cigna to perform a MHPAEA compliance analysis and to forward him the
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`results of this analysis as well as a copy of the Plan Documents.
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`44. S.S. included multiple letters of medical necessity with the appeal. In a letter dated
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`September 28, 2019, Gregory Law, MD, wrote in part:
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`It was clinically evident that outpatient or intensive outpatient programs were not
`effective for [E.S.]. She required a higher level of care. The above residential
`programs were medically necessary.
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`Laurie Mowry-Hesler, MA, ATR-BC, ATCS, LMFT, wrote in part in a letter dated
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`September 25, 2019:
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`By [E.S.]’s sophomore year she was demonstrating consistent evidence of
`Oppositional Defiant Disorder. There were periods of time when she needed
`almost round the clock supervision due to running away behaviors, lying to
`parents, school personnel and the police on multiple occasions, smoking and
`suspected marijuana use, and was verbally and physically assaultive toward
`family members and classmates. She also accused her father of physical abuse,
`which was investigated by CPS and the case was dropped due to [E.S.]’s
`unreliable reporting. [E.S.]’s parents attempted to bring her in for family therapy,
`again, but due to [E.S.]’s highly uncooperative and hostile manner it was
`recommended that the family begin to investigate residential treatment for [E.S.].
`By the spring/summer of 2017 the [S. family] were actively seeking residential
`placement for [E.S.] due to the degree of treatment and care she required.
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`Stacey Hoffman, MA, PsyD, LCP, wrote in part in a letter dated October 1, 2019:
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`Given [E.S.]’s increasingly aggressive and assaultive behaviors, I began a more
`intensive level of treatment, that included home visits and crisis response to
`attempt to prevent psychiatric inpatient hospitalization as well as criminal
`charges. There were multiple emergency calls to police, and [E.S.] incurred
`pending criminal charges and placed into a diversion program in the spring of
`2018. In spite of home-based clinical visits and her presence in the Juvenile Court
`Diversion Program, [E.S.] began to regress in the late summer of 2018. [E.S.]
`began to present as a danger to herself (running away from home to meet strange
`men, making plans to live in car or camper with an adult male in West Virginia,
`using illegal drugs and alcohol, and presenting with very poor reality testing
`related to grave safety concerns. As such, I recommended that she be placed in
`residential treatment in September of 2018 (SUWS of the Carolinas, in
`particular).
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`It is noted that I have had several other clients in my 20 years of clinical practice
`that were enrolled in SUWS of the Carolinas. Each of these clients maintained the
`clinical gains that resulted from that treatment for years after their discharge. Each
`of those clients was able to verbalize after discharge that they would likely have
`become incarcerated or in a cycle of acute care psychiatric hospitalizations if not
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`for the residential intervention. It became quite evident that [E.S.] would not be
`stabilized in a less restrictive setting, and required residential placement. In spite
`of home-based services with a crisis response component and accompanying
`juvenile court support, [E.S.] continued to deteriorate and repeatedly placed
`herself in imminent danger. As a result of her residential placement, [E.S.] is now
`able to return to outpatient treatment, and is presenting with many gains from the
`residential interventions.
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`K. Alice Cennamo, LCSW, LCAS, wrote in part in a letter dated September 5, 2019:
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`While [E.S.] accomplished improved compliance, self-confidence, emotion
`management, and motivation towards sobriety, she remained easily dysregulated
`and often decompensated into defiant, self-destructive, or risk-taking patterns. It
`was strongly recommended that [E.S.] continue her treatment in a therapeutic
`residential setting (i.e., a young adult residential treatment program) following
`successful completion of SUWS programming.
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`Anna Edwards, Ph.D. wrote in part in a November 2018 psychological evaluation:
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`[E.S.] continues to show vulnerability in emotional, social and behavioral
`domains. Thus, the continued need for treatment is indicated.
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`Specific Treatment Recommendations:
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`1. Following her placement at SUWS, it is highly recommended that [E.S.]
`continue in a structured, therapeutic residential setting such as a residential
`treatment center. Outside of this type of structure, [E.S.] is likely to experience
`further declines in functioning. She is at-risk of significant impulsivity and other
`self-destructive behaviors. In a setting with less support, progress could be
`hindered by her therapist’s lack of objective data
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`E.S.’s discharge summary from SUWS stated in part:
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`It is recommended that [E.S.] continue her growth in a therapeutic and transitional
`living environment. The environment should include both individual and family
`therapy sessions for the duration of her time in the program. In addition, a defined
`daily structure will be necessary and any significant challenges faced with
`adherence to this structure should be discussed within individual or family
`therapy sessions.
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`S.S. also included two letters from Dragonfly documenting E.S.’s aggressive behaviors,
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`minimal group participation, manipulative behaviors, and brief expulsion from the
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`program due to threats of violence.
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`45. S.S. argued that it was overwhelmingly clear that E.S.’s treatment team considered her
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`care to be medically necessary. He asked Cigna to elaborate on why it disagreed with the
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`medical professionals who had treated E.S. on a firsthand basis.
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`46. In a letter dated December 27, 2019, Cigna upheld the denial of payment for E.S.’s
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`treatment under the following justification:
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`Based upon the available clinical information received initially and with this
`appeal, your symptoms did not meet Behavioral Health Medical Necessity
`Criteria for admission and continued stay at Residential Mental Health Treatment
`for Adults level of care from 12/7/2018 - 8/22/2019. There was a 1349 page
`document provided supporting the opinion that this treatment being needed. [sic]
`Although there was a very helpful summary of your lifetime behavioral process
`the remaining hundreds of pages largely were copies of definitions and copies of
`articles on generic treatment approaches. Not included in this documentation was
`a clear description of specific intervention proposed by the identified facility
`during your considered stay although there was a brief description of your
`consistent engagement in the treatment groups as being minimal. In a smaller
`document of your time in the residential setting it was noted that after the years of
`outpatient services, the prior exposure to the wilderness program and several
`months of exposure to this around-the-clock program you were described in May
`2019 to be “unwilling to take accountability…downplaying behaviors”. Your
`consistent descriptions had been of showing lack of respect for authority or
`boundaries established by others. It had been documented that you had been
`found to have an unaccounted for substance in your drug testing while in the
`program. The information provided described that the benefit from both the
`wilderness program and the residential stay considered came largely from the
`supervision provided with behavioral shaping rather than you’re [sic]
`incorporating and consistently using healthier and less oppositional coping
`strategies. There was no focused new intervention to which you had not
`previously been exposed and would be expected to generate a more robust and
`sustainable benefit. Thus as the same benefit would be expected to generate in a
`therapeutic group home or other highly structured and supervises [sic] living
`setting until such time as you showed evidence of truly engaging in the treatment
`goals and methods of your team through use of outpatient individual and group
`therapy, authorization of extended residential services cannot be justified even
`though there is the risk for your continued use of unhealthy methods of
`manipulating your environment to achieve personal goals.
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`47. The Plaintiffs exhausted their pre-litigation appeal obligations under the terms of the Plan
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`and ERISA.
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`48. The denial of benefits for E.S.’s treatment was a breach of contract and caused S.S. 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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`$94,000.
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`49. Cigna failed to conduct a MHPAEA analysis or to produce a copy of the Plan Documents
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`including any medical necessity criteria for mental health and substance use disorder
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`treatment and for skilled nursing or rehabilitation facilities in spite of S.S.’s requests.
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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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`50. 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 Cigna,
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`acting as agent of the Plan, to discharge its duties in respect to claims processing solely in
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`the interests of the participants and beneficiaries of the Plan. 29 U.S.C. §1104(a)(1).
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`51. Cigna and the Plan failed to provide coverage for E.S.’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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`52. 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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`53. Cigna and the agents of the Plan breached their fiduciary duties to E.S. 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.S.’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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`Case 2:21-cv-00544-CMR Document 2 Filed 09/16/21 PageID.16 Page 15 of 20
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`to claimants upon request, and to provide a full and fair review of E.S.’s claims.
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`54. The actions of Cigna and the Plan in failing to provide coverage for E.S.’s medically
`
`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))
`
`55. 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
`
`with both ERISA and MHPAEA is part of Cigna’s fiduciary duties.
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`56. 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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`57. 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).
`
`58. 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.
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`§2590.712(c)(4)(ii)(A), (F), and (H).
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`59. The medical necessity criteria used by Cigna 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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`60. Comparable benefits offered by the Plan for medical/surgical treatment analogous to the
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`benefits the Plan excluded for E.S.’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 Cigna exclude or restrict coverage of
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`medical/surgical conditions by imposing restrictions such as an acute care requirement
`
`for a sub-acute level of ca