`
`Brian S. King, #4610
`Brent J. Newton, #6950
`Samuel M. Hall, #16066
`BRIAN S. KING, P.C.
`420 East South Temple, Suite 420
`Salt Lake City, UT 84111
`Telephone: (801) 532-1739
`Facsimile: (801) 532-1936
`brian@briansking.com
`brent@briansking.com
`samuel@briansking.com
`
`Attorneys for Plaintiffs
`
`THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH, CENTRAL DIVISION
`
`DAVID F., and D.F.,
`
`COMPLAINT
`
`Plaintiffs,
`
`Case No. 2:22-cv-00339 - JCB
`
`vs.
`
`ANTHEM BLUE CROSS,
`
`Defendant.
`
`Plaintiffs David F. and D.F., through their undersigned counsel, complain and allege
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`against Defendant Anthem Blue Cross (“Anthem”) as follows:
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`PARTIES, JURISDICTION AND VENUE
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`1. David and D.F. are natural persons residing in Los Angeles County, California. David is
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`D.F.’s father.
`
`2. Anthem is the trade name of Blue Cross of California and is an independent licensee of
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`the nationwide Blue Cross network of providers. Anthem was the insurer and claims
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`administrator, as well as the fiduciary under ERISA for the insurance plan providing
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`coverage for the Plaintiffs (“the Plan”) during the treatment at issue in this case.
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`1
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.3 Page 2 of 19
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`3. The Plan is a fully-insured employee welfare benefits plan under 29 U.S.C. §1001 et.
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`seq., the Employee Retirement Income Security Act of 1974 (“ERISA”). David was a
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`participant in the Plan and D.F. was a beneficiary of the Plan at all relevant times.
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`4. D.F. received medical care and treatment at Elements Wilderness Program (“Elements”)
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`from September 18, 2019, to November 13, 2019, and Catalyst Residential Treatment
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`(“Catalyst”) from November 13, 2019, to March 30, 2020, These are licensed treatment
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`facilities located in Emery County, Utah and Box Elder County, Utah respectively, which
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`provide sub-acute inpatient treatment to adolescents with mental health, behavioral,
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`and/or substance abuse problems.
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`5. Anthem denied claims for payment of D.F.’s medical expenses in connection with his
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`treatment at Elements and Catalyst.
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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, because Anthem does
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`business in Utah, and the treatment at issue took place in Utah.
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`8. In addition, David has been informed and reasonably believes that litigating the case
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`outside Utah will likely lead to substantially increased litigation costs for which he will
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`be responsible to pay, which would not be incurred if venue of the case remains in Utah.
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`Finally, in light of the sensitive nature of the medical treatment at issue, it is the
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`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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`2
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.4 Page 3 of 19
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`9. 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 Defendant’s
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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).
`
`BACKGROUND FACTS
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`D.F.’s Developmental History and Medical Background
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`10. D.F. was very irritable from the time that he was a toddler. He was frequently ill and
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`spent a significant amount of time in the doctor’s office. It was eventually determined
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`that D.F.’s tonsils and adenoids had swelled to the point that they blocked ninety percent
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`of his airway in some areas. Fortunately, this was able to be resolved with surgery, but
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`D.F. had been suffering from this condition for so long that it affected his personality.
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`11. D.F. only wore black and was often sad and angry. He was small for his age and was
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`often bullied by other students. D.F. was in the first percentile for his height and was
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`prescribed a growth hormone. He was frequently disruptive and played the role of “class
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`clown.”
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`12. Most of D.F.’s friends were older and he started abusing drugs with them around the time
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`that he was eleven years old. D.F.’s older brother had a similar drug problem and was
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`hospitalized for his first overdose when he was just thirteen. D.F.’s brother had more
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`overdoses and was eventually sent to a residential treatment center. This was highly
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`influential on D.F. and caused him to react in increasingly negative ways.
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`3
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.5 Page 4 of 19
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`13. D.F.’s school performance suffered and while he used to be more friendly and outgoing,
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`he became increasingly withdrawn. D.F. started meeting with therapists and was
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`prescribed medications for his mental health conditions such as his ADHD. These
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`medications had undesirable side effects such as causing D.F. to be unable to sleep, or on
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`one occasion, contributing to a thirty-six-hour rage filled temper tantrum which caused
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`David to call 911.
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`14. D.F. started seeing a new therapist, but after only a few sessions he overdosed on drugs
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`and had to be rushed to the hospital. D.F. was placed on a mental health hold for 72 hours
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`at the hospital and was then admitted to a treatment program called Visions.
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`15. While at Visions D.F. was cooperative and made progress but he regressed as soon as he
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`finished the program. David learned that D.F. was dealing drugs as well as using them
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`and had become involved with gangs.
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`16. D.F. started attending a private school with a small class size. On one occasion when he
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`was supposed to go on a camping trip with his peers, he instead ran away and sent his
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`parents a text stating that he was now sixteen years old and could live on his own. D.F.
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`was eventually found six hours later after a frantic search involving police and a private
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`investigator.
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`17. D.F. was high when he was found and expressed no remorse or concern for his actions.
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`He was taken to Elements the next day.
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`Elements
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`18. D.F. was admitted to Elements on September 18, 2019.
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`19. In a letter dated May 6, 2020, Anthem denied payment for D.F.’s treatment at Elements.
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`The letter gave the following justification for the denial:
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`4
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.6 Page 5 of 19
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`As Stated in your Member Benefit Agreement in the section What Is Not Covered
`page 118 subsection Residential accommodations it states, Residential
`accommodations to treat medical or behavioral health conditions, except when
`provided in a Hospital, Hospice, Skilled Nursing Facility, or Residential
`Treatment Center. This Exclusion includes procedures, equipment, services,
`supplies or charges for the following: Wilderness camps. Therefore request for
`authorization for Mental Health Residential level of care has been excluded from
`coverage.
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`20. On October 19, 2020, David submitted a level one appeal of the denial of payment for
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`D.F.’s treatment. David reminded Anthem of its ERISA obligations during the appeal
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`process, including its responsibility to provide him with a full, fair, and thorough review
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`using appropriately qualified reviewers, which took into account all of the information he
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`provided, gave him the specific reason(s) for the adverse determination, referenced the
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`specific plan provisions on which the decision was based, and which gave him the
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`information necessary to perfect the claim.
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`21. He stated that D.F.’s treatment was a covered benefit under the terms of the insurance
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`policy. He quoted from the Mental Health and Substance Abuse (Chemical Dependency)
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`Services section of the insurance plan and pointed out that coverage was available for
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`“other Providers who are licensed health care professionals acting within the scope of
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`their license.”
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`22. He wrote that in addition, Elements met the Plan’s definition of a “provider” as it was
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`licensed by the State of Utah and operated according to Utah state regulations.
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`23. He did note that there was a listed exclusion for “Wilderness camps” but disputed that
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`this description applied to the outdoor behavioral health treatment provided at Elements.
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`He also noted that this exclusion did not apply to individuals suffering from “Serious
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`Emotional Disturbances of a Child (SED)” and that California state law required Anthem
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`to provide coverage for treatment of D.F.’s conditions.
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`
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`5
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.7 Page 6 of 19
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`24. David argued that D.F.’s treatment at Elements qualified for coverage under the language
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`of the California Welfare and Institutions Code which stated in part:
`
`“Seriously emotionally disturbed children or adolescents” means minors under the
`age of 18 years who have a mental disorder as identified in the most recent edition
`of the Diagnostic and Statistical Manual of Mental Disorders, other than a
`primary substance use disorder or developmental disorder, which results in
`behavior inappropriate to the child’s age according to expected developmental
`norms. Members of this target population shall meet one or more of the following
`criteria:
`
`(A) As a result of the mental disorder, the child has substantial impairment in at
`least two of the following areas: self-care, school functioning, family
`relationships, or ability to function in the community; and either of the
`following occur:
`(i)
`The child is at risk of removal from home or has already been
`removed from home.
`The mental disorder and impairments have been present for more than
`six months or are likely to continue for more than one year without
`treatment.
`
`(ii)
`
`
`25. David contended that Anthem’s denial was a violation of MHPAEA. He pointed out that
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`MHPAEA required insurers to offer coverage for behavioral health services “at parity”
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`with those offered for analogous medical or surgical services.
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`26. David stated that skilled nursing, inpatient rehabilitation, and inpatient hospice facilities
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`were the appropriate medical or surgical analogues to the treatment D.F. received.
`
`27. David alleged that Anthem was violating MHPAEA by imposing treatment limitations
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`such as restrictions based on geographic location and facility type. David cited to a case,
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`Michael D. v Anthem Health Plans of Kentucky, in which the court found that the
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`exclusion for “wilderness camp” was ambiguous and could not properly be applied to
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`outdoor behavioral healthcare.
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`28. David argued that Anthem could not classify Elements as an excluded “wilderness camp”
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`without defining the term. Nor could it discriminate against mental health services when
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`6
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.8 Page 7 of 19
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`it did not do so with analogous medical or surgical services. He also encouraged it to
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`reach out to Dr. Michael Gass, an expert in the field of outdoor behavioral health.
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`29. He asked Anthem to utilize reviewers with training concerning MHPAEA to evaluate the
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`claim and to perform a MHPAEA compliance analysis on the Plan and to provide him
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`with physical copies of the results of this analysis. He also requested to be provided with
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`the documents under which the Plan was operated.
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`30. In a letter dated December 7, 2020, Anthem upheld the denial of payment for D.F.’s
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`treatment. The reviewer wrote that wilderness programs were an excluded service and
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`were therefore not a covered benefit under the terms of the insurance policy. The
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`reviewer stated that D.F.’s diagnosis of Dysthymic Disorder did not qualify as a severe
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`mental illness.
`
`31. The reviewer quoted the definition of a residential treatment center/facility in the
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`insurance policy and stated that Elements did not meet this definition and was therefore
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`not covered.
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`32. The reviewer denied David’s assertion that the denial of payment violated MHPAEA. the
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`reviewer wrote that Anthem did treat residential treatment centers the same as all other
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`level of care and was not holding them to a stricter standard. The reviewer then reiterated
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`that Elements was not a residential treatment center.
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`Catalyst
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`33. D.F. was admitted to Catalyst on November 13, 2019.
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`34. In a letter dated November 15, 2019, Anthem denied payment for D.F.’s treatment at
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`Catalyst. The letter gave the following justification for the denial:
`
`The request tells us you went to a residential treatment center for your mental
`health condition. The plan clinical criteria considers [sic] residential treatment
`
`
`
`7
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.9 Page 8 of 19
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`medically necessary for those who are a danger to themselves or others (as shown
`by hearing voices telling them to harm themselves or others or persistent thoughts
`of harm that cannot be managed at a lower level of care). This service can also be
`medically necessary for those who have a mental health condition that is causing
`serious problems with functioning. (For example, being impulsive or abusive,
`very poor self care, not sleeping or eating, avoidance of personal interactions, or
`unable to perform usual obligations). In addition, the person must be willing to
`stay and participate and is expected to either improve with this care or to keep
`from getting worse. The information we have does not show: you are a danger to
`yourself or others, or that you are having serious problems functioning. For this
`reason, the request is denied as not medically necessary. There may be other
`treatment options to help you, such as outpatient services. You may want to
`discuss these with your doctor. It may help your doctor to know we reviewed the
`request using the MCG guideline Residential Behavioral Health Level of Care,
`Child or Adolescent (ORG: B-902-RES).
`
`35. On May 1, 2020, David submitted a level one appeal of the denial of payment for D.F.’s
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`treatment. He asked that all of the dates of D.F.’s treatment be reviewed. He asked
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`Anthem to respect his rights under ERISA for a full, fair, and thorough review. He
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`pointed out that Anthem’s claim of discretionary authority was superseded by California
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`state law and argued that Anthem was required to act in his best interest.
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`36. David wrote that D.F. had made significant progress while in treatment at Catalyst and
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`that without the treatment he received there it was likely that he would have ended up
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`dead due to his substance use, mental health conditions, and suicidal ideation.
`
`37. David included letters of medical necessity with the appeal. In a letter dated February 6,
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`2020, Dr. Jason Bromberg MD, FAAP, wrote in part:
`
`I was recently made aware that [D.F.] has been in a rehabilitation boarding school
`and appears to be doing very well. I spoke with Mrs. [F.] who is so pleased with
`his progress. I believe VERY strongly that [D.F.] needs to continue in this
`boarding school. My fear is that, without the proper education and therapy that
`this specific school is supplying, [D.F.] will go back to doing the dangerous acts
`he has done in the past. For that reason, I believe it is a medical necessity that
`[D.F.] stay in the current rehabilitation boarding school he is enrolled in.
`(emphasis in original)
`
`In a letter dated January 31, 2020, Peter Stuart MA, LMFT wrote in part:
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`
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`8
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.10 Page 9 of 19
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`
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`I am an Educational Consultant and Therapist based in Austin, Texas and also
`licensed in California. In my professional duties as an Educational Consultant I
`help families determine the best course of treatment for their children who are
`struggling with mental health and substance issues sufficient to indicate that they
`need a placement out of home.
`
` I
`
` have worked with the [F.] family and [D.F.] for the past several months. The
`family first contacted me prior to [D.F.] going to a wilderness therapy program in
`Utah called Elements. I worked with the family and the staff at Elements to help
`determine what environment [D.F.] might benefit from for school after his time at
`Wilderness therapy.
`
`We, as a team, determined that [D.F.] would be in danger of behavioral and
`substance related relapses were he to return home. Therefore we recommended
`that he would benefit from a therapeutic boarding school such as Catalyst. The
`firm boundaries, substance use testing and academic support are all important for
`[D.F.]’s continued success.
`
`Stephen Pritt LCSW, wrote in a letter dated January 31, 2020:
`
`
`I have worked with [D.F.] as his primary therapist at Catalyst located in Brigham
`City Utah since November 13, 2019. …
`
`In my clinical opinion due to the severity and persistence of [D.F.]’s ADHD,
`substance abuse, and unstable home environment, require [sic] [D.F.] to continue
`a residential level of care to achieve significant and lasting improvement.
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`38. David wrote that discharging D.F. prematurely would have been a grave mistake and
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`would have set him up for failure, especially given D.F.’s history of substance use while
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`living at home. He wrote that it was the opinion of all of D.F.’s treatment providers that
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`D.F. required the level of care he was receiving at Catalyst. He asked Anthem to explain
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`what basis it had to disagree with the clinical professionals who had worked with D.F. on
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`a firsthand basis and who had actively witnessed the deterioration of his conditions.
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`39. David contended that the proprietary criteria applied by Anthem to evaluate the medical
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`necessity of D.F.’s treatment, the MCG guidelines, violated generally accepted standards
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`of medical practice.
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`
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`9
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.11 Page 10 of 19
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`40. David argued that Anthem could not choose to ignore the terms of the insurance policy
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`and rely on the MCG guidelines as the sole basis for denying payment. He asked the
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`reviewer to rely on the Plan’s definition of medical necessity as well as generally
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`accepted standards of medical practice to determine if treatment was necessary, not the
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`MCG criteria.
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`41. David argued that Anthem minimized the severity of D.F.’s treatment through the use of
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`phrases such as, “you went to a residential treatment center for your mental health
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`condition.” He reminded Anthem that D.F. had attempted treatment in lower levels of
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`care but they had not been sufficient to effectively address his mental health and
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`substance use concerns.
`
`42. He contended that the medical necessity criteria used by Anthem overemphasized acuity
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`and crisis stabilization. He quoted the criteria for admission to a residential treatment
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`center and noted that admission to a residential treatment facility listed factors such as
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`“Danger to self for child or adolescent” or “Danger to others for child or adolescent” as
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`prerequisites for admission.
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`43. He argued that this barrier artificially restricted the availability of residential treatment
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`care, especially given the fact that if an individual was manifesting these symptoms and
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`was sent to a residential treatment center, they would instead be transferred to a higher
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`level of care which was better equipped to deal with these types of symptoms. He also
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`noted that acute care was intended for short-term crisis stabilization, not lasting treatment
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`of the patient’s underlying conditions.
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`44. He pointed out that Anthem’s denial was predicated on a lack of danger to self or others
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`and contended that this was another example of a violation of MHPAEA. He reiterated
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`
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`10
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.12 Page 11 of 19
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`that MHPAEA prohibited insurers from placing restrictions on mental health care which
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`were not equally applied to analogous medical or surgical services.
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`45. He stated that upon examining Anthem’s criteria for skilled nursing, rehabilitation, and
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`inpatient hospice facilities, he was unable to find any instance of Anthem imposing acute
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`level requirements to qualify for a subacute level of care, nor did its criteria impose other
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`restrictions equivalent to those placed on D.F.’s mental health treatment.
`
`46. David asked Anthem to explain why his plan was noncompliant with MHPAEA or in the
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`event that he was mistaken, to provide a detailed explanation of how the Plan was
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`compliant with MHPAEA despite all appearances to the contrary.
`
`47. In a letter dated June 23, 2020, Anthem upheld the denial of payment for D.F.’s
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`treatment. The reviewer wrote that D.F. was “not at risk for serious harm from
`
`withdrawals that you needed 24 hour care.” She wrote that while the first letter only
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`addressed the first seven days of treatment, those were the seven days that the initial
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`reviewer was able to evaluate at the time. The letter also stated that the review was a
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`“chart only” review as they were unable to contact Catalyst.
`
`48. She stated that the entire case file was reviewed and that both reviewers who had
`
`evaluated the claim were board certified in psychiatry. She contested David’s assertion
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`that the denial violated MHPAEA and stated that Anthem treated all residential treatment
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`centers the same as other intermediate levels of care.
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`49. The reviewer wrote that the reviewer’s decision was rendered based on individual clinical
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`information and MCG Guidelines.
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`50. The reviewer responded to David’s contention that the MCG criteria overemphasized
`
`acuity and crisis stabilization by stating that:
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`
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`11
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.13 Page 12 of 19
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`Residential Treatment Care (RTC) is meant to provide rapid stabilization of acute
`symptoms necessitating 24-hour care. Danger to self may refer to acute
`psychiatric symptoms and not necessarily an imminent danger or threat to self or
`others. In addition, you can be free of danger to self or others and still meet the
`RTC criteria due to moderate to severe psychiatric, behavioral or other comorbid
`conditions that require 24-hour care.
`
`51. The reviewer wrote that non-quantitative treatment limitations were not imposed when
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`medical necessity determinations were made, and that the health plan had been reviewed
`
`many times by regulatory and legal oversight bodies. She stated that the expectation that
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`an individual be treated at least restrictive level of care that was safe and effective was
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`true of behavioral health as well as physical health conditions.
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`52. The reviewer wrote that Anthem treated residential treatment facilities the same as skilled
`
`nursing facilities and that neither was meant for long-term care. She argued that D.F. was
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`not at risk for serious harm and did not require 24 hour care.
`
`53. The Plaintiffs exhausted their pre-litigation appeal obligations under the terms of the Plan
`
`and ERISA.
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`54. The denial of benefits for D.F.’s treatment was a breach of contract and caused David to
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`incur medical expenses that should have been paid by the Plan in an amount totaling over
`
`$90,000.
`
`FIRST CAUSE OF ACTION
`
`(Claim for Recovery of Benefits Under 29 U.S.C. §1132(a)(1)(B))
`
`55. 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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`Anthem, acting as agent of the Plan, to discharge its duties in respect to claims processing
`
`solely in the interests of the participants and beneficiaries of the Plan. 29 U.S.C.
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`§1104(a)(1).
`
`
`
`12
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.14 Page 13 of 19
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`56. Anthem and the Plan failed to provide coverage for D.F.’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.
`
`57. 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
`
`appeal process. 29 U.S.C. §1133(2).
`
`58. Anthem and the agents of the Plan breached their fiduciary duties to D.F. 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 D.F.’s interest and for the exclusive purpose of providing benefits to ERISA
`
`participants and beneficiaries and to provide a full and fair review of D.F.’s claims.
`
`59. The actions of Anthem and the Plan in failing to provide coverage for D.F.’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))
`
`60. 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 Anthem’s fiduciary duties.
`
`61. 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
`
`treatment of medical/surgical disorders.
`
`
`
`13
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.15 Page 14 of 19
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`62. MHPAEA prohibits ERISA plans from imposing treatment limitations on mental health
`
`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).
`
`63. Impermissible nonquantitative treatment limitations under MHPAEA include, but are not
`
`limited to, medical management standards limiting or excluding benefits based on
`
`medical necessity; refusal to pay for higher-cost treatment until it can be shown that a
`
`lower-cost treatment is not effective; and restrictions based on geographic location,
`
`facility type, provider specialty, or other criteria that limit the scope or duration of
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`benefits for mental health or substance use disorder treatment. 29 C.F.R.
`
`§2590.712(c)(4)(ii)(A), (F), and (H).
`
`64. The explicit language of the SPD, one of the governing plan documents, state that in
`
`order for treatment to be medically necessary it must, among other things, be offered
`
`“in accordance with generally accepted standards of medical practice.”
`
`65. The medical necessity criteria used by Anthem for the intermediate level mental health
`
`treatment benefits at issue in this case are more stringent or restrictive than allowed by
`
`generally accepted standards of medical practice, as well as the medical necessity criteria
`
`the Plan applies to analogous intermediate levels of medical or surgical benefits.
`
`66. Comparable benefits offered by the Plan for medical/surgical treatment analogous to the
`
`benefits the Plan excluded for D.F.’s treatment include sub-acute inpatient treatment
`
`settings such as skilled nursing facilities, inpatient hospice care, and rehabilitation
`
`facilities.
`
`
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`14
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.16 Page 15 of 19
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`67. For none of these types of treatment does Anthem 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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`68. When Anthem 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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`69. Anthem and the Plan evaluated D.F.’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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`70. As an example of disparate application of medical necessity criteria between
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`medical/surgical and mental health treatment, Anthem’s reviewers improperly utilized
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`acute medical necessity criteria to evaluate the non-acute treatment that D.F. received.
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`Anthem’s improper use of acute inpatient medical necessity criteria is revealed in the
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`statements in Anthem’s denial letters such as:
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` “The plan clinical criteria considers [sic] residential treatment medically
`necessary for those who are a danger to themselves or others (as shown by
`hearing voices telling them to harm themselves or others or persistent thoughts of
`harm that cannot be managed at a lower level of care).
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`71. 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 D.F.
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`received.
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.17 Page 16 of 19
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`72. The Plan does not require individuals receiving treatment at sub-acute inpatient facilities
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`for medical/surgical conditions to satisfy acute medical necessity criteria in order to
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`receive Plan benefits.
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`73. The treatment provided in an acute care environment is necessarily distinct from
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`treatment provided in a non-acute environment. Utilizing acute criteria to evaluate a non-
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`acute claim will result in a near universal denial of benefits, regardless of the medical
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`necessity, clinical appropriateness, or nature of the treatment.
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`74. The Defendant cannot and will not deny that use of acute care criteria, either on its face
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`or in application, to evaluate sub-acute treatment violates generally accepted standards
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`of medical practice. They must and do acknowledge that they adhere to generally
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`accepted standards of medical practice when they evaluate the medical necessity of both
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`mental health/substance use disorder treatment and the medical necessity of treatment
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`for medical/surgical conditions.
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`75. Anthem’s reviewer made a brief attempt to address this allegation by stating that the
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`word acute “may” refer to acute level psychiatric symptoms and that regardless there
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`were other ways to qualify for treatment such as in the case of an individual who was
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`refusing to eat or sleep.
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`76. While Anthem’s reviewer states that acute “may” have different meanings, and while in
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`some cases, this may be true, Anthem’s denial letters clearly state that the “information
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`we have does not show: you are a danger to yourself or others.” Thus, regardless of how
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`the term acute may be interpreted, Anthem provides clear context of how it was
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`interpreted in this case, and that is a requirement of danger to self or others.
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`//
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`Case 2:22-cv-00339-JCB Document 2 Filed 05/19/22 PageID.18 Page 17 of 19
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`77. David contended that he had examined the criteria for residential treatment and its
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`medical or surgical analogues and wrote that the requirements for residential treatment
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`services were significantly stricter than the criteria for analogous medical or surgical
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`care.
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`78. Anthem’s final denial letter reveals additional restrictions placed on residential treatment
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`such as its contention that residential treatment is “meant to provide rapid stabilization of
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`acute symptoms necessitating 24-hour care” and that residential treatment is not meant
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`for “long-term” care.
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`79. This limitation to a short-term timeframe is not disclosed in the terms of the insurance
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`policy. Anthem’s letter alleged that it similarly restricts skilled nursing care and other
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`services in this manner. Inasmuch as this restriction only or primarily applies to
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`residential treatment, it is a violation of MHPAEA. Inasmuch as it applies to other care
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`modalities it is also a breach of the terms of the insurance policy as it is a hidden
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`restriction put into place to artificially restrict the length of care that will be approved
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`without specifying in the terms of the insurance contract that any such limitations are
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`applied.
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`80. Regarding