Case 2:22-cv-00325-HCN Document 2 Filed 05/13/22 PageID.2 Page 1 of 22
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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 Plaintiff
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`THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH, CENTRAL DIVISION
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`J.J., individually and on behalf of G.J. a minor,
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`COMPLAINT
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`Plaintiff,
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`vs.
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`PREMERA BLUE CROSS, AMAZON.COM
`SERVICES, INC., and the AMAZON and
`SUBSIDIARIES SHARED DEDUCTIBLE
`PLAN,
`
`Defendants.
`
`Case No. 2:22-cv-00325 - HCN
`
`Judge Howard C. Nielson
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`Plaintiff J.J. individually and on behalf of G.J. a minor, through her undersigned counsel,
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`complains and alleges against Defendants Premera Blue Cross (“Premera”), Amazon.com
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`Services Inc. (“Amazon”) and the Amazon and Subsidiaries Shared Deductible Plan (“the Plan”)
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`as follows:
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`PARTIES, JURISDICTION AND VENUE
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`1. J.J. and G.J. are natural persons residing in Oxford County, Maine. J.J. is G.J.’s mother.
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`2. Premera is an independent licensee of the nationwide Blue Cross network of providers
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`and was the third-party claims administrator, as well as the fiduciary under ERISA for the
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`Plan during the treatment at issue in this case.
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`3. At all relevant times Premera acted as agent for the Plan and Amazon.
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`4. Amazon is the designated administrator for the Plan.
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`5. 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”). J.J. was a participant
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`in the Plan and G.J. was a beneficiary of the Plan at all relevant times.
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`6. G.J. received medical care and treatment at Trails Carolina (“Trails”) from May 16, 2019,
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`to August 1, 2019, and Maple Lake Academy (“Maple Lake”) beginning on August 5,
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`2019. While G.J. remained in treatment at Maple Lake beyond February 29, 2020,
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`following this date, J.J. switched employers and Premera, Amazon, and the Plan were no
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`longer responsible for G.J.’s treatment.
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`7. J.J. does not seek monetary compensation from Defendants for the costs of G.J.’s
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`residential treatment beyond February 29, 2020, but she does not limit her claims for
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`equitable relief, statutory penalties for failure to produce documents, or any other relief
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`the Court may award to that timeframe.
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`8. Trails and Maple Lake provide sub-acute inpatient treatment to adolescents with mental
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`health, behavioral, and/or substance abuse problems. Trails is located in North Carolina
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`and Maple Lake is located in Utah County, Utah.
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`9. Premera denied claims for payment of G.J.’s medical expenses in connection with his
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`treatment at Trails and Maple Lake.
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`10. 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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`11. 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 Premera does
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`business in Utah; Amazon has a significant business presence, offices, and many
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`employees in the state; and the treatment at Maple Lake took place in Utah.
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`12. In addition, the Plaintiff has been informed and reasonably believes that litigating the
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`case outside of Utah will likely lead to substantially increased litigation costs she will be
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`responsible to pay and that would not be incurred if venue of the case remains in Utah.
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`Finally, given the sensitive nature of the medical treatment at issue, it is the Plaintiff’s
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`desire that the case be resolved in the State of Utah where it is more likely both her and
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`G.J.’s privacy will be preserved.
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`13. The remedies the Plaintiff seeks under the terms of ERISA and under the Plan are for the
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`benefits due under the terms of the Plan, including the costs of G.J.’s crisis transportation
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`to Trails, for appropriate equitable relief under 29 U.S.C. §1132(a)(3) based on the
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`Defendants’ violation of the Mental Health Parity and Addiction Equity Act of 2008
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`(“MHPAEA”), for an award of statutory damages pursuant to 29 U.S.C. §1132(c) based
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`on the failure of the agents of Amazon as Plan administrator, to produce within 30 days
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`documents under which the Plan was established or operated, an award of prejudgment
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`interest, and an award of attorney fees and costs pursuant to 29 U.S.C. §1132(g).
`
`//
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`//
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`//
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`Case 2:22-cv-00325-HCN Document 2 Filed 05/13/22 PageID.5 Page 4 of 22
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`BACKGROUND FACTS
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`Trails
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`14. G.J. was admitted to Trails via a crisis transportation team on May 16, 2019, due to issues
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`with depression, anxiety, suicidal ideation, property destruction, trauma, and significant
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`aggression which had not been able to be adequately managed at other levels of care.
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`15. On September 29, 2020, Premera denied payment for G.J.’s transportation to Trails
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`because “the medical treatment requiring travel is not a covered benefit.” Premera’s letter
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`implied that G.J.’s actual treatment at Trails would also be considered denied but did not
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`explicitly state this.
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`16. On November 25, 2020, J.J. wrote an appeal in response to Premera’s September 29,
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`2020, denial. G.J. reminded Premera that she was entitled to certain protections under
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`ERISA during the appeals process, including a full, fair, and thorough review conducted
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`by appropriately qualified reviewers whose identities were clearly disclosed, which took
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`into account all of the information she provided and which gave her the specific reasons
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`for the adverse determination, referenced the specific plan provisions on which the
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`determination was based, and which gave her the information necessary to perfect the
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`claim.
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`17. She stated that she had not yet received any actual denial for G.J.’s treatment. The closest
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`statement to an approval or denial she received was a line in the September 29, 2020,
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`letter which stated in part:
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`The plan excludes coverage for transportation when the medical treatment
`requiring travel is not a covered benefit. [G.J.]’s transport was to a wilderness
`program, which is excluded by his health plan.
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`18. J.J. wrote that although she had received no notice that G.J.’s treatment had actually been
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`denied, due to this letter she presumed that Premera excluded coverage for G.J.’s
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`treatment at Trails.
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`19. She wrote that the Plan covered mental health treatment and Trails met the definition of a
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`“provider” in the insurance policy. She pointed out that Trails was licensed by the State
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`of North Carolina and was also accredited by the Commission on Accreditation of
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`Rehabilitation Facilities. She stated that based on Trail’s licensure, accreditation, and
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`compliance with governing state regulations, G.J.’s treatment there should have been
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`approved.
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`20. She contended that Premera was violating MHPAEA by refusing to cover G.J.’s
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`treatment. She pointed out that MHPAEA compelled insurers to ensure benefits for
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`mental health services were offered at parity with benefits for comparable medical and
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`surgical services. She identified skilled nursing, inpatient rehabilitation, and hospice
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`services as some of the medical or surgical analogues to the treatment G.J. received.
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`21. She contended that Premera was imposing a restriction based on provider type and that
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`while the Plan document language did mention “wilderness programs,” there was no
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`reference to these services outside of the mental health section of the insurance policy.
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`22. She stated that it was evident that Premera was restricting the availability of mental
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`healthcare in a manner which it did not do with analogous medical or surgical services
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`and that it appeared to be limiting the availability of wilderness care merely because it
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`took place outdoors.
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`23. J.J. asked that the reviewer have experience with MHPAEA as well as generally accepted
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`standards and clinical best practices for outdoor behavioral health programs. She
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`encouraged the reviewer to reach out to Dr. Michael Gass, an expert in the outdoor
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`behavioral health field.
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`24. She asked Premera to conduct a parity compliance analysis and to provide her with a
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`physical copy of the results of this analysis as well as any documentation used.
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`25. She wrote that she had demonstrated she was entitled to relief under MHPAEA as she
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`had demonstrated that the Plan was subject to MHPAEA, the Plan offered both
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`medical/surgical and mental health benefits, the analogues to the treatment G.J. received
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`included skilled nursing, inpatient rehabilitation, and hospice, and she had provided
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`evidence that Premera was placing restrictions on mental health services which were not
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`imposed on these analogous medical or surgical services.
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`26. J.J. asked in the event the denial was upheld that she be provided with the documents
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`under which the Plan was operated, including all governing plan documents, the
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`summary plan description, any insurance policies in place for the benefits she was
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`seeking, any administrative service agreements that existed, any medical necessity
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`criteria that were utilized in the determination, along with their medical or surgical
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`equivalents (whether or not these were used to evaluate the claim), as well as the names,
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`qualifications, and denial rates of all individuals who evaluated the claim (collectively the
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`“Plan Documents”).
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`27. J.J. did not receive a response to this appeal nor did Premera pay for G.J.’s treatment at
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`Trails.
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`28. G.J. was admitted to Maple Lake on August 5, 2019.
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`Maple Lake
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`29. In a letter dated March 19, 2020, Premera denied payment for G.J.’s treatment at Maple
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`Lake. The letter gave the following justification for the denial:
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`The treatment guidelines we use state that, in addition to other requirements,
`residential treatment for a mental health condition is medically necessary only
`when:
`• A psychiatric evaluation is done within one business day of admission,
`and then at least one time per week (every 7 days), by a psychiatrist,
`psychiatric nurse practitioner, or psychiatric physician assistant.
`• A psychological evaluation is done within 48 hours of admission.
`• A substance use evaluation is done within 48 hours of admission.
`• Clinical assessment is done at least one time per day.
`• You receive individual or group or family therapy at least 3 times per
`week.
`• Preliminary discharge planning is started within 24 hours of admission.
`
`
`Residential treatment for a mental health condition is denied as not medically
`necessary. Information from your provider shows only two psychiatric
`evaluations, by a psychiatrist, on 8/7/19 and on 9/18/19. The information does not
`show a psychiatric evaluation within one business day of admission, and then at
`least one time per week (every 7 days), by a psychiatrist, psychiatric nurse
`practitioner, or psychiatric physician assistant. In addition, the information shows
`only a few individual therapy sessions, not individual or group or family therapy
`at least 3 times per week. And the information does not show any of the other
`services listed above. Furthermore, the information does not show your symptoms
`and difficulties or progress for much of the time that you were in the residential
`treatment facility.
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`30. On June 9, 2020, J.J. submitted an appeal of the denial of G.J.’s treatment at Maple Lake
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`as well as the crisis transportation services he received on his way to Trails. She again
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`reminded Premera that it was obligated to provide her with a full, fair, and thorough
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`review conducted by appropriately qualified reviewers and was required to act in her best
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`interest. J.J. also requested a copy of any documentation related to Premera’s decision to
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`deny payment.
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`31. She stated that Maple Lake was licensed by the State of Utah as a residential treatment
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`center, operated in accordance with that license, and offered clinically appropriate
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`treatment using qualified and trained milieu staff. She contended that Maple Lake met the
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`requirements present in the governing plan document for coverage to be approved.
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`32. She pointed out that Premera was imposing additional requirements not found in her
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`governing plan documents to deny payment. She wrote that these requirements (such as
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`Premera’s contention that weekly psychiatric visits were required) were found only in its
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`proprietary treatment criteria.
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`33. She informed the reviewer that these criteria explicitly stated that they superseded by the
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`terms of the insurance policy. She wrote that neither her insurance policy nor generally
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`accepted standards of medical practice required weekly psychiatric visits.
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`34. J.J. argued that “Premera cannot use internal medical policies to justify imposing any
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`additional requirements not supported by plan language” and argued that its requirements
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`were arbitrary, inconsistent with G.J.’s needs and clinical best practices, and inconsistent
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`with Utah state regulations for residential treatment centers. She stated that policies such
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`as these needlessly inflated the cost of care without providing any benefits for doing so.
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`35. She wrote that G.J. did have a psychiatrist as part of his treatment team and met with that
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`psychiatrist as often as necessary. She stated that if G.J. did not receive interventions
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`such as weekly medication management evaluations, it was simply because these were
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`not clinically indicated as appropriate or necessary to effectively treat G.J.’s symptoms
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`and conditions. She wrote that the treatment G.J. did receive was appropriate and in
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`accordance with generally accepted standards of care.
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`36. She again asserted that Premera was violating MHPAEA by imposing stricter
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`requirements on mental health services than comparable medical or surgical care. For
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`instance, she stated that Premera only required skilled nursing facilities to be licensed and
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`did not mandate that they meet the extra requirements it imposed on residential treatment.
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`37. She again requested that Premera conduct a MHPAEA compliance analysis and provide
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`her with physical copies of the results of that analysis. She also requested to be provided
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`with a copy of the Plan Documents.
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`38. In a letter dated September 9, 2020, Premera upheld the denial of payment for G.J.’s
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`treatment. The letter gave the following justification for the denial:
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`As of 08/5/19, you were not having thought to harm yourself or others. You were
`not hearing or seeing things that were not there. You were not severely
`aggressive. You were taking your prescribed medications without any side effects.
`You were not psychotic, delusional, or manic. You did not have any severe
`behavioral symptoms that required around the clock nursing supervision. You
`could have been safely treated in a lower level of care.
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`39. The letter included the attached findings of reviewers Ashraf Ali, MD. and David Spiro
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`M.D. Which stated in part:
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`The patient is diagnosed with Anxiety Disorder, unspecified. As of 08/15/19 the
`patient was not suicidal, homicidal, or gravely impaired for self-care. There was
`no report of self-harm. The patient was not severely aggressive. He did not report
`any auditory or visual hallucinations. The patient was taking his prescribed
`medications without any severe side effects. He was not psychotic, delusional, or
`manic. He did not have any severe behavioral issues that required 24-hour nursing
`supervision. From the clinical evidence, the patient could have been safely treated
`in a lower level of care such as partial hospitalization.
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`40. On October 30, 2020, J.J. submitted a level two appeal of the denial of payment for G.J.’s
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`treatment. She contended that Premera had failed to respect her rights under ERISA and
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`had not adequately responded to the arguments she raised, including her contention that it
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`violated MHPAEA.
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`41. She pointed out that rather than address her arguments, Premera appeared to have largely
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`abandoned its prior justifications for the denial and presented her with new reasons for
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`denying care. She asked how she was supposed to engage in a meaningful dialogue with
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`Premera when it didn’t respond to the information she included in her appeals.
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`42. She quoted the requirements in Premera’s InterQual criteria for acute level
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`hospitalization, she then quoted the InterQual requirements for residential treatment. She
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`noted that despite the fact that residential treatment centers offered a subacute level of
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`care, Premera’s residential treatment guidelines and its guidelines for acute level
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`hospitalization were strikingly similar and in some cases the requirements were identical.
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`43. She stated that it was inappropriate to impose requirements such as a danger to self or
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`others on residential treatment care. She included a letter from board certified psychiatrist
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`Michael Connolly, MD, which stated that insurers could not do this “without violating
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`well-recognized standards for proper care of substance use disorders and mental health
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`issues.”
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`44. J.J. argued that Premera’s criteria failed to take into account the unique needs of children
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`and adolescents. She wrote that G.J. had attempted other levels of care in the past but
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`they had not proven to be effective. She also noted that Premera’s criteria stated that they
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`were guidelines only.
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`45. She wrote that G.J. was admitted to residential treatment based on the recommendations
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`of his treatment team. She noted that Premera’s reviewers had not addressed all of G.J.’s
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`underlying conditions, and in the last review the only diagnosis mentioned was G.J.’s
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`anxiety.
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`46. She argued that Premera continued to violate MHPAEA by imposing treatment
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`limitations – such as acute care requirements to receive non-acute levels of treatment – on
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`residential treatment care which were not equally applied to analogous medical or
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`surgical services like skilled nursing care.
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`47. She again asked Premera to conduct a parity compliance analysis, and that in the event
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`her assertions concerning MHPAEA were incorrect that Premera explain in detail why
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`she was mistaken.
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`48. J.J. included copies of G.J.’s medical records with the appeal. These records documented
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`instances of G.J.’s self-harming behaviors, suicidal ideation (including being placed on
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`suicide watch after stealing a butter knife), bullying others, damaging property, trauma
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`from sexual abuse, and disruptive behaviors, even while in the supportive and controlled
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`residential environment of a residential treatment center.
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`49. J.J. again asked for a copy of the Plan Documents.
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`50. In a letter dated December 9, 2020, Premera upheld the denial of payment for G.J.’s
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`treatment. The letter stated in relevant part:
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`Your request for coverage of residential medical health treatment remains denied.
`This decision was made based on the plan language, which excludes coverage on
`any service or supply determined to be not medically necessary. The
`documentation provided did not indicate ongoing acute safety concerns that
`would have necessitated mental health treatment for 24 hours a day, 7 days a
`week from 8/5/19 onward. Based on the published medical literature, there was no
`documented persistent suicidal or homicidal ideation, and there were no psychotic
`symptoms. The progress notes document several superficial skin scratches on
`[G.J.]’s left forearm and leg on 9/18/19 that did not require treatment, and overall
`the patient did not engage in any significant self-injurious behaviors. On one
`occasion, on 8/29/19, he needed to be put in a physical hold secondary to
`behaviors of escalating defiance, classroom disruption, and ripping papers off the
`wall. Some ripping of paper also took place on 1/6/20. However, these extreme
`acts were not pervasive, and instead these sporadic outbursts were consistent with
`documentation of “rough housing,” climbing on furniture, hyperactivity, and poor
`impulse control, all indicative of undertreated ADHD.
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`It is not clear why the treatment team did not appropriately pursue more
`aggressive medication adjustments to bring these symptoms of severe ADHD
`under better control. If this had happened, it is likely that the patient’s disruptive
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`behaviors would have improved in a more timely fashion. It is customary to
`undertake medication management of ADHD symptoms in an outpatient setting,
`nor in residential treatment. The notes show that although the patient was at times
`reluctant to do activities of daily living (ADLs) and chores, he was nonetheless
`capable of doing these tasks when prompted with appropriate behavioral
`management. Behavioral management does not require residential treatment but
`can instead be undertaken in an outpatient setting.
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`He was medically stable and tolerated the medications prescribed to him. He had
`no comorbid substance abuse diagnosis, and as a result there were [sic] no
`documentation of drug withdrawal symptoms that would have required 24-hour
`nursing supervision. The notes show that the treatment team considered him safe
`and stable enough to be permitted to go out on a camping trip (as documented on
`9/5/19). He was able to successfully negotiate a pass home without incident, such
`as the Christmas holiday pass documented on 1/8/20. Several notes indicate that
`at times the patient appeared “shut down” and less communicative with others but
`without any documented safety concerns that required 24-hour mental health
`monitoring in a residential setting.
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`Thus, based on the published medical literature, his treatment did not require the
`intensity of residential mental health services from 8/5/19 to 2/25/20 and instead
`would have been more appropriate for continuation of treatment in a less
`restrictive setting.
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`51. As she had requested to be provided with a copy of the Plan Documents on multiple
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`occasions but had not received a response, J.J. made one last attempt by contacting the
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`Plan Administrator, Amazon, directly. In a letter which was confirmed to be delivered to
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`Amazon on October 12, 2021, J.J. asked to be provided with:
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`• A complete copy of [G.J.]’s claim file
`• Disclosure of the identities of all individuals with clinical or medical expertise
`who evaluated the treatment for my son, [G.J.] at Trails Carolina and Maple Lake,
`copies of those individuals’ curriculum vitae, copies of any memoranda, emails,
`reports, or other documents reflecting the rationale of the reviewers in denying
`coverage for [G.J.]’s claim;
`• A complete copy of both the medical necessity criteria utilized by Premera Blue
`Cross in determining that [G.J.]’s treatment was not medically necessary;
`• A complete copy of the medical necessity criteria utilized by the Plan for skilled
`nursing facilities, sub-acute inpatient rehabilitation treatment, and inpatient
`hospice treatment. This is necessary to allow me to carry out an evaluation of
`whether the Plan has complied with the requirements of the federal Mental Health
`Parity and Addiction Equity Act;
`• Complete copies of any and all internal records compiled by Premera Blue Cross
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`and Amazon.com Services, Inc. in connection with [G.J.]’s claim including, but
`not limited to, telephone logs, memoranda, notes, emails, correspondence, or any
`other communications;
`• A copy of the summary plan description, master plan document, certificate of
`insurance, insurance policy, and any other document under which [G.J.]’s
`insurance plan is operated;
`• Copies of any and all administrative service agreements, contracts or other
`documents which described and defined the relationship, rights and obligations of
`and between you, the plan administrator, and Premera Blue Cross; and
`• Copies of documents identifying the processes, strategies, evidentiary standards,
`and other factors used to apply a nonquantitative treatment limitation with respect
`to medical/surgical benefits and mental health or substance use disorder benefits
`under the plan
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`52. J.J. did not receive a response to this request.
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`53. The Plaintiff exhausted her pre-litigation appeal obligations under the terms of the Plan
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`and ERISA.
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`54. The denial of benefits for G.J.’s treatment was a breach of contract and caused J.J. 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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`$120,000.
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`55. Defendants failed to produce a copy of the Plan Documents including any medical
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`necessity criteria for mental health and substance use disorder treatment and for skilled
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`nursing or rehabilitation facilities in spite of J.J.’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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`56. 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
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`Premera, acting as agent of the Plan, to discharge its duties in respect to claims
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`processing solely in the interests of the participants and beneficiaries of the Plan. 29
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`U.S.C. §1104(a)(1).
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`57. Premera and the Plan failed to provide coverage for G.J.’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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`58. 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 plaintiffs in the pre-litigation appeal
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`process. 29 U.S.C. §1133(2).
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`59. The denial letters produced by Premera do little to elucidate whether Premera conducted
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`a meaningful analysis of the Plaintiff’s appeals or whether it provided her with the “full
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`and fair review” to which she is entitled. Premera failed to substantively respond to many
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`of the issues presented in J.J.’s appeals and did not meaningfully address many of the
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`arguments or concerns that the Plaintiff raised during the appeals process.
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`60. In addition, Premera did not fully abide by its duties and obligations under the review
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`process, and in the case of Trails, it never issued a formal denial or even responded to
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`J.J.’s appeal. Neither ERISA nor the terms of the insurance policy permit Premera to
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`deny payment without offering the opportunity for the denial to be appealed.
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`61. Premera and the agents of the Plan breached their fiduciary duties to G.J. when they
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`failed 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 G.J.’s interest and for the exclusive purpose of providing benefits to ERISA
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`participants and beneficiaries, to produce copies of relevant documents and information
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`to claimants upon request, and to provide a full and fair review of G.J.’s claims.
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`Case 2:22-cv-00325-HCN Document 2 Filed 05/13/22 PageID.16 Page 15 of 22
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`62. The actions of Premera and the Plan in failing to provide coverage for G.J.’s medically
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`necessary treatment are a violation of the terms of the Plan and its medical necessity
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`criteria.
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`SECOND CAUSE OF ACTION
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`(Claim for Violation of MHPAEA Under 29 U.S.C. §1132(a)(3))
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`63. MHPAEA is incorporated into ERISA and is enforceable by ERISA participants and
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`beneficiaries as a requirement of both ERISA and MHPAEA. The obligation to comply
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`with both ERISA and MHPAEA is part of Premera’s fiduciary duties.
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`64. 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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`65. MHPAEA prohibits ERISA plans from imposing treatment limitations on mental health
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`or substance use disorder benefits that are more restrictive than the predominant
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`treatment limitations applied to substantially all medical and surgical benefits and also
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`makes illegal separate treatment limitations that are applicable only with respect to
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`mental health or substance use disorder benefits. 29 U.S.C.§1185a(a)(3)(A)(ii).
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`66. 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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`Case 2:22-cv-00325-HCN Document 2 Filed 05/13/22 PageID.17 Page 16 of 22
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`67. The medical necessity criteria used by Premera 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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`68. Comparable benefits offered by the Plan for medical/surgical treatment analogous to the
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`benefits the Plan excluded for G.J.’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.
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`69. For none of these types of treatment does Premera exclude or restrict coverage of
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`medical/surgical conditions by imposing restrictions such as an acute care requirement
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`for a sub-acute level of care. To do so, would violate not only the terms of the insurance
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`contract, but also generally accepted standards of medical practice.
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`70. When Premera and the Plan receive claims for intermediate level treatment of medical
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`and surgical conditions, they provide benefits and pay the claims as outlined in the terms
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`of the Plan based on generally accepted standards of medical practice.
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`71. Premera and the Plan evaluated G.J.’s mental health claims using medical necessity
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`criteria that deviate from generally accepted standards of medical practice. This process
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`resulted in a disparity because the Plan denied coverage for mental health benefits when
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`the analogous levels of medical or surgical benefits would have been paid.
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`72. As an example of disparate application of medical necessity criteria between
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`medical/surgical and mental health treatment, Premera’s reviewers improperly utilized
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`acute medical necessity criteria to evaluate the non-acute treatment that G.J. received.
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`Premera’s improper use of acute inpatient medical necessity criteria is revealed in the
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`Case 2:22-cv-00325-HCN Document 2 Filed 05/13/22 PageID.18 Page 17 of 22
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`statements in Premera’s denial letters such as “you were not having thought to harm
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`yourself or others. You were not hearing or seeing things that were not there.”
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`73. Premera’s use of acute level criteria is repeated and explicit. For instance, its last denial
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`letter clearly lists a lack of “ongoing acute safety concerns” as a justification to deny
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`payment.
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`74. This improper use of acute inpatient criteria was a nonquantitative treatment limitation
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`that cannot permissibly be applied to evaluate the sub-acute level of care that G.J.
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`received. The Plan does not require individuals receiving treatment at sub-acute inpatient
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`facilities for medical/surgical conditions to satisfy acute medical necessity criteria in
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`order to receive Plan benefits.
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`75. The treatment provided i