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Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.2 Page 1 of 17
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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
`
`Attorneys for Plaintiffs
`
`THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH, CENTRAL DIVISION
`
`MARK Z., and M.Z.,
`
`COMPLAINT
`
`Plaintiffs,
`
`Case No. 2:21-cv-00650 - JNP
`
`vs.
`
`PRIORITY HEALTH MANAGED
`BENEFITS, INC., and the MICHIGAN
`DENTAL ASSOCIATION HEALTH PLAN,
`
`Defendants.
`
`Plaintiffs Mark Z. (“Mark”), and M.Z. through their undersigned counsel, complain and
`
`allege against Defendants Priority Health Managed Benefits, Inc. (“PHMB”) and the Michigan
`
`Dental Association Health Plan (“the Plan”) as follows:
`
`PARTIES, JURISDICTION AND VENUE
`
`1. Mark and M.Z. are natural persons residing in Washtenaw County, Michigan. Mark is
`
`M.Z.’s father.
`
`2. PHMB is a third-party administration company and was the claims administrator for the
`
`Plan during 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”). Mark was a
`
`participant in the Plan and M.Z. was a beneficiary of the Plan at all relevant times.
`
`4. M.Z. received medical care and treatment at Evoke at Entrada (“Evoke”) from July 20,
`
`2018 to October 23, 2018, and Vista Sage (“Vista”) from October 24, 2018 to May 9,
`
`2019. Evoke is a licensed wilderness therapy program located in Utah which provides
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`sub-acute short-term stabilization and assessment for adolescents with mental health,
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`behavioral, and/or substance abuse problems. Vista is a licensed residential treatment
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`program, also located in Utah. Vista provides sub-acute inpatient treatment for adolescent
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`girls with mental health, behavioral, and/or substance abuse problems.
`
`5. PHMB, acting as agent and claims administrator for the Plan, denied claims for payment
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`of M.Z.’s medical expenses in connection with her treatment at Evoke and Vista. This
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`lawsuit is brought to obtain the Court’s order requiring the Plan to reimburse Mark for
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`the medical expenses he incurred and paid for M.Z.’s treatment.
`
`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
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`ERISA’s nationwide service of process and venue provisions, because the Plan provides
`
`coverage for treatment received throughout the United States and the treatment at issue
`
`took place in Utah. In addition, venue in Utah will save the Plaintiffs costs in litigating
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`this case. In addition, in light of the sensitive nature of the medical treatment at issue, it is
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`the Plaintiffs’ desire that the case be resolved in the State of Utah where it is more likely
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`their privacy will be preserved.
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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.4 Page 3 of 17
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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
`
`U.S.C. §1132(g).
`
`BACKGROUND FACTS
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`M.Z.’s Developmental History and Medical Background
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`9. M.Z. was adopted at birth and was in the neonatal intensive care unit for a week before
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`Mark and his wife, Paula, took her home. M.Z.’s birth father had a history of
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`schizophrenia, bipolar disorder, and depression. M.Z.’s birth mother had a history of
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`seizures and anxiety.
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`10. M.Z. was an active child and, although she interacted with other children she preferred
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`the company of adults. She began speech therapy at three years of age when she started
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`pre-school. M.Z. had difficulty identifying social cues and assisting her with that
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`difficulty was added to her therapy.
`
`11. M.Z. was struggling with completing her school work as early as second grade, and Mark
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`and Paula sought an evaluation from their pediatrician. He diagnosed M.Z. with attention
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`deficit/hyperactivity disorder (“ADHD”) and M.Z. started taking medication for that
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`condition.
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`12. Approximately one year later, a second assessment was done and M.Z. was also
`
`diagnosed with anxiety and depression. An Individualized Education Plan (“IEP”) was
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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.5 Page 4 of 17
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`developed for M.Z. to assist her in school. She was being bullied, was acting out, and
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`had poor peer relationships.
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`13. When she was in sixth grade, M.Z. was having difficulty sleeping and was diagnosed
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`with sleep apnea. She began engaging in self-harm behavior (cutting), and she started
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`seeing a psychiatrist. She was prescribed medication to address her depression, anxiety,
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`ADHD and impulsivity.
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`14. Mark and Paula moved M.Z. to a new middle school because of the bullying she had
`
`been experiencing, but her self-harm continued. M.Z. began experimenting with drugs
`
`and alcohol. She was also engaging in risky sexual behaviors.
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`15. When M.Z. was sixteen, her doctor recommended participation in an outpatient
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`adolescent treatment program, but the program failed to improve M.Z.’s conditions.
`
`16. After M.Z.’s friends became aware that she was cutting herself, they called the police,
`
`who came to the family’s home to investigate. M.Z. had started a partial hospitalization
`
`program a few days prior to the incident and continued in that program.
`
`17. M.Z. had to do community service and school detention after she was caught with
`
`cigarettes at school.
`
`18. On M.Z.’s seventeenth birthday, she was caught stealing money and gift cards from a
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`fellow track team member. She was kicked off the team and was suspended from school
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`for four days.
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`19. On one occasion when the family was preparing to leave for vacation, M.Z. had a severe
`
`panic attack. She begged to be allowed to stay behind with a friend’s family. However,
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`during her parents’ absence, M.Z. continued using drugs and alcohol and was not staying
`
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`4
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`where she was supposed to be staying. When Mark and Paula got home, they discovered
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`that M.Z. had a warrant for her arrest due to prior instances of theft.
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`20. Mark and Paula were gravely concerned with the deterioration of M.Z.’s condition and
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`sought advice from her psychiatrist and an educational consultant who recommended that
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`she receive treatment at Evoke.
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`21. M.Z. did well at Evoke and her conditions stabilized. Her therapist at Evoke
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`recommended an updated psychological assessment. As a result of the assessment, M.Z.
`
`was diagnosed with:
`
`F43.20 Attachment Disorder
`F33.1 Major Depressive Disorder, recurrent, moderate, anxious distress
`F41.1 Generalized Anxiety Disorder
`Borderline Personality Disorder
`F12.20 Cannabis Use Disorder, in early remission in a controlled environment,
`severe
`Sedative, Hypnotic, or Anxiolytic Use Disorder, in sustained remission in a
`controlled environment, severe
`F90.0 Attention-Deficit/Hyperactivity Disorder, Predominantly Inattentive Type
`Z62.820 Parent-Child Relational Problem
`
`22. Staff at Evoke strongly recommended ongoing residential treatment for M.Z. following
`
`her discharge from the program at Evoke.
`
`Evoke Claims and Appeal
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`23. M.Z. was admitted at Evoke on July 20, 2018, and was discharged on October 23, 2018.
`
`Claims were submitted to PHMB for coverage and payment of the expenses associated
`
`with M.Z.’s treatment at Evoke. On January 11, 2019, PHMB wrote and denied coverage
`
`on the basis that wilderness therapy programs were not a covered benefit under the terms
`
`of the Plan.
`
`24. Mark and Paula appealed the denial of coverage on March 29, 2019. They alerted PHMB
`
`to its responsibilities under ERISA including the necessity to provide them with a full and
`
`
`
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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.7 Page 6 of 17
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`fair review, to consider all materials they provided with their appeal, to have any clinical
`
`review of the claim completed by an individual with equivalent qualifications and
`
`expertise to M.Z.’s treating doctors and therapists and to provide specific rationales for
`
`any ongoing denial. They also included contact information for Michael Gass, PhD.,
`
`LMFT, at the University of New Hampshire, an individual with extensive knowledge of
`
`and experience with wilderness therapy treatment.
`
`25. Mark and Paula then went on to discuss the definition of a Mental Health Treatment
`
`Facility found in their Plan. They stated that Evoke met all the requirements included in
`
`the definition to qualify for coverage.
`
`26. Mark and Paula then raised the possibility that the Plan was not in compliance with the
`
`requirements of MHPAEA in excluding coverage for wilderness therapy programs. They
`
`compared the requirement for coverage of skilled nursing services found in the Plan and
`
`noted that because the Plan was excluding only subacute mental health treatment and not
`
`subacute treatment for other medical conditions, the Plan was imposing an impermissible
`
`limitation on mental health services.
`
`27. Mark and Paula requested that, in the event the Plan continued to deny coverage, that
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`they be provided with copies of all documents under which the Plan was established or
`
`operated, copies of all Administrative Services Agreements between the Plan, PHMB,
`
`and any other third party entity, and copies of criteria utilized to determine coverage for
`
`any type of subacute care under the Plan.
`
`28. On May 2, 2019, PHMB wrote and maintained its denial of coverage. They stated again
`
`that wilderness therapy was not a covered service and, in addition, said the admission and
`
`treatment at Evoke had not been pre-authorized. The letter cited to the Plan provision
`
`
`
`6
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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.8 Page 7 of 17
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`upon which the denial was based and indicated that the review had been completed by a
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`family practice physician.
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`29. The letter concluded by informing Mark and Paula that the internal appeal process was
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`complete. However, an external review was available upon request should they wish to
`
`pursue that option.
`
`30. PJMB did not provide the documents and information Mark and Paula had requested.
`
`Vista Claims and Appeal
`
`31. Claims were submitted to PHMB for coverage and payment of the medical expenses in
`
`connection with M.Z.’s treatment at Vista. On November 20, 2018, PHMB wrote and
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`denied coverage on the basis that M.Z. did not meet the Plan’s guidelines for medical
`
`necessity of residential treatment. PHMB asserted that M.Z. was “not exhibit[ing] any
`
`active mood, anxiety, or psychotic symptoms,” was not “suicidal, homicidal, or
`
`psychotic,” was not experiencing active withdrawal symptoms, and could be effectively
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`treated on an outpatient basis.
`
`32. An additional basis for denial was that the treatment provided at Vista was in a “luxury
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`treatment program[s],” which are excluded. The Plan definition of a luxury treatment
`
`program includes facilities in “secluded beach, mountain, or country settings” which
`
`provide non-therapeutic activities such as “horseback riding or swimming.”
`
`33. Mark and Paula appealed the denial on March 29, 2019. They said that they had
`
`identified several errors in the denial and would address those errors in their appeal.
`
`34. First, Mark and Paula reminded PHMB of its responsibilities under ERISA to provide a
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`full and fair review, to consider all materials and information submitted in support of the
`
`
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`7
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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.9 Page 8 of 17
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`appeal, to provide specific rationale for maintaining denial, and to have the claim
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`reviewed by an appropriately qualified clinician.
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`35. Mark and Paula then provided a detailed chronological history of M.Z.’s development,
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`treatments, diagnoses, and difficulties. They included voluminous medical records, and
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`letters of recommendation for residential treatment from M.Z.’s therapists. The letter
`
`included numerous citations to therapy notes from Vista, demonstrating her ongoing
`
`struggles.
`
`36. Mark and Paula then addressed PHMB’s determination that Vista was a luxury treatment
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`program. They included with their appeal a copy of Vista’s license with the state of Utah
`
`as a residential treatment facility and argued that the bulk of M.Z.’s time at Vista was
`
`spent either in therapy or in school. They also pointed out that the exclusion relied on by
`
`PHMB was not contained in their Plan document and directed PHMB to the following
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`language, found in Priority Health Medical Policy #91447-R3:
`
`For self-funded plans, consult individual plan documents. If there is a conflict
`between this policy and a self-funded plan document, the provisions of the plan
`document will govern.
`
`37. Mark and Paula then discussed PHMB’s misuse of the medical necessity criteria. First,
`
`PHMB had erroneously utilized criteria for adult mental health rather than criteria for
`
`treatment of adolescents. Second, they argued that the presence of any of the symptoms
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`enumerated by PHMB in its denial, i.e., suicidality, homicidality, or psychosis, would
`
`indicate the need for acute psychiatric hospitalization. M.Z. was not receiving acute care
`
`at Vista but, rather, subacute residential treatment.
`
`38. Mark and Paula included a letter from Michael Connolly, M.D., a child and adolescent
`
`psychiatrist, explaining the nature of subacute residential treatment.
`
`
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`39. Mark and Paula stated that a requirement for M.Z. to meet acute criteria in order to
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`qualify for subacute care was a violation of generally accepted standards of practice.
`
`40. Finally, Mark and Paula again raised their concerns about violations of MHPAEA. They
`
`stated that they had been unable to obtain guidelines for coverage of other types of
`
`subacute care and requested that those guidelines be provided to them. They pointed
`
`PHMB to the definition of “medically/clinically necessary” in their Plan and argued that
`
`M.Z.’s treatment at Vista clearly fell within the scope of that definition.
`
`41. Mark and Paula again asked for the documents and information they had previously
`
`requested in the event PHMB maintained its denial of coverage.
`
`42. On May 2, 2019, PHMB maintained its denial on the basis that Vista was a luxury
`
`treatment program providing treatment that was not evidence based and coverage was
`
`therefore excluded. PHMB also reiterated that M.Z.’s condition did not meet the medical
`
`necessity criteria. Finally, PHMB raised for the first time a failure to obtain prior
`
`approval before M.Z.’s admission at Vista1.
`
`43. The Plaintiffs exhausted their pre-litigation appeal obligations under the terms of the Plan
`
`and ERISA.
`
`44. The denial of benefits for M.Z.’s treatment was a breach of contract and caused Mark and
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`Paula to incur medical expenses that should have been paid by the Plan in an amount
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`totaling over $120,000.
`
`45. PHMB failed to provide any medical necessity criteria for mental health and substance
`
`use disorder treatment and for skilled nursing or rehabilitation facilities in spite of Mark
`
`and Paula’s requests.
`
`
`1 PHMB’s letter did indicate that approval had been sought prior to M.Z.’s treatment and had been denied.
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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.11 Page 10 of 17
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`FIRST CAUSE OF ACTION
`
`(Claim for Recovery of Benefits Under 29 U.S.C. §1132(a)(1)(B))
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`46. 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
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`PHMB, 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).
`
`47. 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).
`
`48. The denial letters produced by PHMB do little to elucidate whether it conducted a
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`meaningful analysis of the Plaintiffs’ appeals or whether it provided them with the “full
`
`and fair review” to which they are entitled. PHMB failed to substantively respond to the
`
`issues presented in the Plaintiffs’ appeals and did not meaningfully address the arguments
`
`or concerns that the Plaintiffs raised during the appeals process.
`
`49. PHMB, the agent of the Plan, breached its fiduciary duties to M.Z. when it failed to
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`comply with its obligations under 29 U.S.C. §1104 and 29 U.S.C. §1133 to act solely in
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`M.Z.’s interest and for the exclusive purpose of providing benefits to ERISA participants
`
`and beneficiaries, to produce copies of relevant documents and information to claimants
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`upon request, and to provide a full and fair review of M.Z.’s claims.
`
`//
`
`//
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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.12 Page 11 of 17
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`50. The actions of PHMB and the Plan in failing to provide coverage for M.Z.’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))
`
`1. 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 PHMB’s fiduciary duties.
`
`2. Generally speaking, MHPAEA requires ERISA plans to provide no less generous
`
`coverage for treatment of mental health and substance use disorders than they provide
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`for treatment of medical/surgical disorders.
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`3. MHPAEA prohibits ERISA plans from imposing treatment limitations on mental
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`health or substance use disorder benefits that are more restrictive than the
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`predominant treatment limitations applied to substantially all medical and surgical
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`benefits and also makes illegal separate treatment limitations that are applicable only
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`with respect to mental health or substance use disorder benefits and not applied to
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`medical and surgical benefits. 29 U.S.C.§1185a(a)(3)(A)(ii).
`
`4. Impermissible nonquantitative treatment limitations under MHPAEA include, but are
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`not 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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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.13 Page 12 of 17
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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).
`
`5. The Plan’s blanket exclusion for “wilderness” and other outdoor behavioral health
`
`programs is an example of a benefit restriction based solely on geographic location.
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`This exclusion enforces a denial of payment based entirely on where the care is
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`administered rather than the quality or content of the treatment.
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`6. Evoke met rigorous state licensing and accreditation standards and offered treatment
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`in accordance with generally accepted standards of medical practice. The Plan’s
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`blanket exclusion however takes none of this into account and denies treatment solely
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`based on the fact that a significant portion of the treatment takes place outside.
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`7. The explicit language of the SPD, one of the governing plan documents, states that the
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`Defendants will evaluate the medical necessity of treatment for purposes of evaluating
`
`coverage under the Plan of both mental health, substance use, medical, and surgical
`
`claims based on whether services are “widely accepted as effective,” are “appropriate
`
`for the condition or diagnosis,” and are “essential, based upon nationally accepted
`
`evidence-based standards.”
`
`8. The medical necessity criteria for sub-acute, or intermediate, inpatient mental health
`
`and substance use disorder treatment PHMB applied were more stringent or restrictive
`
`than the medical necessity criteria the Plan applied to sub-acute or intermediate level
`
`medical or surgical benefits.
`
`9. Specifically, while the medical criteria applied to intermediate medical and surgical
`
`care are consistent with generally accepted standards of care for treatment of certain
`
`medical and surgical disorders following hospital discharge but before a patient is able
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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.14 Page 13 of 17
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`to return home, the criteria applied by the Plan to treatment of mental health and
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`substance use disorders imposes requirements beyond generally accepted standard of
`
`medical practice; i.e., the utilization of standards for inpatient hospitalization to
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`conditions where medically appropriate standard of care is in an intermediate care
`
`facility.
`
`10. In addition, the level of care applied by PHMB failed to take into consideration the
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`patient’s safety if she returned to a home environment, as well as the risk of decline or
`
`relapse if less intensive care than what was medically necessary was provided.
`
`11. Generally accepted standards of medical practice for medical and surgical
`
`rehabilitation under the Plan take into consideration safety issues and considerations of
`
`preventing decline or relapse when admission into an intermediate care facility, such
`
`as a skilled nursing or rehabilitation facility, is approved.
`
`12. Comparable benefits offered by the Plan for medical/surgical treatment analogous to
`
`the benefits PHMB, as agent for the Plan, excluded for M.Z.’s treatment include sub-
`
`acute, or intermediate, inpatient treatment settings such as skilled nursing facilities,
`
`inpatient hospice care, and rehabilitation facilities.
`
`13. For none of these types of sub-acute inpatient treatment does the Plan exclude or
`
`restrict coverage of medical/surgical conditions by requiring patients to satisfy the
`
`medical necessity criteria for acute inpatient treatment. If it did so, the Plan would be
`
`violating the requirements of the SPD requiring that medical necessity be evaluating
`
`based on “nationally accepted evidence-based standards.”
`
`14. In its review of M.Z.’s claims from Vista, PHMB’s reviewers improperly utilized acute
`
`medical necessity criteria to evaluate the non-acute treatment that M.Z. received.
`
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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.15 Page 14 of 17
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`15. PHMB’s improper use of acute inpatient medical necessity criteria is revealed in
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`multiple statements in PHMB’s denial letters and include its allegations that M.Z. was
`
`not suicidal, homicidal, or psychotic. These reasons for denying coverage in sub-acute,
`
`intermediate level inpatient treatment accord with “generally accepted standards of
`
`medical practice” as required by the SPD.
`
`16. Based on the SPD language, when the Plan receives claims for intermediate level
`
`treatment of medical and surgical conditions, it provides benefits and pays the claims
`
`as outlined in the terms of the Plan and based on, among other things, nationally
`
`accepted standards of care.
`
`17. The imposition of requirements for coverage of the treatment at Vista that go beyond
`
`established standards of medical care for behavioral health treatment render the Plan’s
`
`coverage for mental health and substance use disorder treatment inferior to the
`
`coverage it provides for analogous medical and surgical treatment.
`
`18. The Defendants cannot and will not deny that use of acute care criteria, either on its
`
`face or in application, to evaluate sub-acute treatment violates generally accepted
`
`standards of medical practice. They must and do acknowledge that they adhere to
`
`nationally accepted standards of medical practice when they evaluate the medical
`
`necessity criteria of both mental health/substance use disorders and medical/surgical
`
`claims.
`
`19. The Plan’s use or application of acute inpatient medical necessity criteria in evaluating
`
`the medical necessity of M.Z.’s sub-acute inpatient treatment resulted in a disparity of
`
`coverage between mental health/substance abuse treatment and medical/surgical
`
`treatment because the Plan denied coverage for mental health and substance use
`
`
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`14
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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.16 Page 15 of 17
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`disorder benefits while at the same time evaluating the medical necessity of analogous
`
`levels of medical or surgical care under generally accepted standards of medical
`
`practice.
`
`20. Had the Defendants applied nationally accepted standards of medical practice to its
`
`evaluation of M.Z.’s mental health and substance used disorders, benefits would have
`
`been paid for the treatment at Evoke and Vista.
`
`21. In this manner, the Defendants’ actions 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
`
`PHMB, as written or in operation, use processes, strategies, or standards that limit the
`
`coverage for the Evoke and Vista treatment in a way that is inconsistent with, and
`
`more stringently applied, than the processes, strategies, or standards the Plan uses to
`
`limit coverage for medical/surgical treatment such as skilled nursing and inpatient
`
`rehabilitation treatment.
`
`22. PHMB and the Plan did not produce the documents Mark and Paula requested to
`
`evaluate medical necessity and MHPAEA compliance, nor did they address in any
`
`substantive capacity Mark and Paula’s allegations that PHMB and the Plan were not in
`
`compliance with MHPAEA in violation of 29 U.S.C. § 1133, its corresponding claim
`
`regulation, 29 C.F.R. § 2560.501-1, and the final rule for MHPAEA, 29 C.F.R. §
`
`2590.712(d)(1)-(3).
`
`23. The violations of MHPAEA by PHMB 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;
`
`15
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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.17 Page 16 of 17
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`(b) An injunction ordering the Defendants to cease violating MHPAEA and
`
`requiring compliance with the statute;
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`(c) An order requiring the reformation of the terms of the Plan and the medical
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`necessity criteria utilized by the Defendants to interpret and apply the terms of the
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`Plan to ensure compliance with MHPAEA;
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`(d) An order requiring disgorgement of funds obtained by or retained by the
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`Defendants 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
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`by each Defendant from participants and beneficiaries of the Plan and PHMB
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`insured and administered plans as a result of the Defendants’ violations of
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`MHPAEA;
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`(f) An order based on the equitable remedy of surcharge requiring the Defendants
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`to 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
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`in violation of MHPAEA; and
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`(h) An order providing restitution from the Defendants to the Plaintiffs for their
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`loss arising out of the Defendants’ violation of MHPAEA.
`
`24. 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 M.Z.’s medically necessary
`
`treatment at Evoke and Vista under the terms of the Plan, plus pre and post-
`
`judgment interest to the date of payment;
`
`16
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`
`
`

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`Case 2:21-cv-00650-JNP Document 2 Filed 11/02/21 PageID.18 Page 17 of 17
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`2.
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`3.
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`4.
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`Appropriate equitable relief under 29 U.S.C. §1132(a)(3) as outlined in the
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`Plaintiffs’ Second Cause of Action;
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`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 2nd day of November, 2021.
`
`By
`
`
` s/ Brian S. King
`Brian S. King
`Attorney for Plaintiffs
`
`
`
`County of Plaintiffs’
`Residence: Washtenaw
`County, Michigan
`
`17
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