Case 2:22-cv-00431-DBB Document 2 Filed 06/28/22 PageID.2 Page 1 of 12
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`Brian S. King, #4610
`Brent J. Newton, #6950
`Samuel M. Hall, #16066
`BRIAN S. KING, P.C.
`420 East South Temple, Suite 420
`Salt Lake City, UT 84111
`Telephone: (801) 532-1739
`Facsimile: (801) 532-1936
`brian@briansking.com
`brent@briansking.com
`samuel@briansking.com
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`Attorneys for Plaintiffs
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`THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH, CENTRAL DIVISION
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`J.H., and S.H.,
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`COMPLAINT
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`Plaintiffs,
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`Case No. 2:22-cv-00431 - DBB
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`vs.
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`ANTHEM BLUE CROSS LIFE and HEALTH
`INSURANCE COMPANY, and the SNAP
`INC. BENEFITS PLAN.
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`Defendants.
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`Plaintiffs J.H. and S.H., through their undersigned counsel, complain and allege against
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`Defendants Anthem Blue Cross Life and Health Insurance Company (“Anthem”) and the SNAP
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`Inc., Benefits Plan (“the Plan”) as follows:
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`PARTIES, JURISDICTION AND VENUE
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`1. J.H. and S.H. are natural persons residing in Ventura County, California. J.H. is S.H.’s
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`father.
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`2. Anthem is an independent licensee of the nationwide Blue Cross Association and was the
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`third-party claims administrator, as well as the fiduciary under ERISA for the Plan during
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`the treatment at issue in this case.
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`3. The Plan is a self-funded employee welfare benefits plan under 29 U.S.C. §1001 et. seq.,
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`the Employee Retirement Income Security Act of 1974 (“ERISA”). J.H. was a participant
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`in the Plan and S.H. was a beneficiary of the Plan at all relevant times. J.H. and S.H.
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`continue to be participants and beneficiaries of the Plan.
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`4. S.H. received medical care and treatment at Aspiro Adventure LLC. (“Aspiro”) from
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`April 16, 2019, to August 14, 2019. Aspiro is a licensed Outdoor Youth Treatment
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`facility located in Sanpete County, Utah, which provides sub-acute inpatient treatment to
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`adolescents with mental health, behavioral, and/or substance abuse problems.
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`5. Anthem denied claims for payment of S.H.’s medical expenses in connection with her
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`treatment at Aspiro.
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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, J.H. 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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`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 Defendants’
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`violation of the Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”),
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`an award of prejudgment interest, and an award of attorney fees and costs pursuant to 29
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`U.S.C. §1132(g).
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`BACKGROUND FACTS
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`S.H.’s Developmental History and Medical Background
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`10. When she was in the eighth grade, S.H. was placed on a 504 education plan in an attempt
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`to address her mental health and behavioral problems, which included running away from
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`campus, multiple detentions, and difficulty concentrating due to ADHD.
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`11. S.H. started seeing a psychiatrist who diagnosed her with a mood dysregulation disorder.
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`S.H.’s psychiatrist expressed concern regarding S.H.’s anxiety and high levels of
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`impulsivity. S.H. started self-harming and expressing thoughts of suicide. S.H. was taken
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`to the hospital and then began attending a partial hospitalization program for about four
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`weeks.
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`12. S.H. returned to school but once again began having suicidal thoughts. She was admitted
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`to the hospital’s inpatient teen psychiatric program and stayed there for ten days. While
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`in treatment, S.H. became very argumentative, was placed on suicide watch, experienced
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`severe mood swings, and attempted to self-harm.
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`13. S.H. then began attending a therapeutic day school where she had her own therapist and
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`received daily group therapy. S.H. had frequent violent outbursts and often got into fights
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`with other students. She was also frequently placed on one-on-one status.
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`14. Around the time that she was in the eleventh grade, S.H. moved to California. S.H.
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`started meeting with a new psychiatrist and a new therapist, but continued to struggle
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`with impulsivity, anxiety, depression, and manic behaviors. S.H. began using cigarettes,
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`drugs, and alcohol. S.H. had many run-ins with the police and would often sneak out at
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`night and skip her classes.
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`15. S.H. got into cars with strangers, continued to self-harm, and continued to threaten to
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`commit suicide. S.H. was admitted to a program in California called Center for
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`Discovery. S.H. was only there for about a month before she was prematurely discharged
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`due to violent and disruptive behavior and was sent to another facility in Utah called
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`Discovery Academy. While she made some progress there, she regressed after about six
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`months, assaulted staff, self-harmed, expressed a desire to commit suicide, and was
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`hospitalized.
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`Aspiro
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`16. S.H. was admitted to Aspiro on April 16, 2019, following her hospitalization.
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`17. In a letter dated May 14, 2020, Anthem denied payment for S.H.’s treatment at Aspiro.
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`The letter, signed only by Anthem gave the following justification for the denial:
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`This service is excluded or not covered under your plan benefits.
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`As Stated in your Member Benefit Agreement in the section MEDICAL CARE
`THAT IS NOT COVERED page 61 it states, No payment will be made under this
`plan for expenses incurred for or in connection with any of the items below.
`Wilderness camps. Therefore request for authorization for Mental Health
`residential level of care has been denied. (emphasis in original)
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`18. In addition, Anthem sent the Plaintiffs an Explanation of Benefits (“EOB”) form dated
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`June 1, 2020, which denied payment under code 001: “This isn’t a covered service on
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`your plan.”
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`19. On July 15, 2020, J.H. appealed the denial of payment for S.H.’s treatment. J.H.
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`reminded Anthem that it was obligated to meet certain requirements under ERISA and
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`was required to provide him with a full, fair, and thorough review which took into
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`account all of the information he provided, which utilized appropriately qualified
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`reviewers and disclosed their identities, which gave him the specific reasoning for the
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`determination, which referenced the specific plan provision on which the decision was
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`based, and which gave him the information necessary to perfect the claim.
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`20. J.H. asked the reviewer to contact Dr. Michael Gass, an expert in the outdoor behavioral
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`health field to answer any questions or resolve any concerns it may have had about
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`wilderness care. He asked Anthem to inform him of any contact with Dr. Gass.
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`21. J.H. argued that S.H.’s treatment at Aspiro was a covered benefit under the terms of the
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`Plan. He stated that while his insurance policy did contain an exclusion for wilderness
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`camps, it made no attempt to define what a “wilderness camp” was. He argued that
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`Aspiro was a licensed, nationally accredited outdoor behavioral health program with
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`teams of doctors, nurses, social workers, and counselors on staff. J.H. contended that
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`Aspiro was not a non-therapeutic “adventure camp” with no clinical value.
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`22. J.H. wrote that “simply refusing to cover [S.H.’s] treatment because it was offered in an
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`outdoor environment seems to be completely arbitrary.” He reminded Anthem that it was
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`subject to MHPAEA which required it to provide coverage for mental health services “at
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`parity” with comparable medical or surgical benefits.
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`23. J.H. wrote that skilled nursing and inpatient rehabilitation were the appropriate medical
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`or surgical analogues to outdoor behavioral health programs like Aspiro.
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`24. J.H. alleged that Anthem was applying a limitation to outdoor behavioral health services
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`based solely on the location the treatment took place. He contended that this decision was
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`arbitrary and asked Anthem to conduct a MHPAEA compliance analysis on the Plan and
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`to provide him with physical copies of the results of this analysis in order to ascertain
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`whether or not the Plan was in compliance with MHPAEA. J.H. also requested the
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`governing plan documents under which the Plan was operated.
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`25. In a letter dated November 16, 2020, Anthem upheld the denial of payment for S.H.’s
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`treatment. The letter gave the following justification for the denial:
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`This coordinator reviewed your appeal, along with Anthem utilization
`management notes. The services were denied correctly as Aspiro Adventures is a
`wilderness program. According to your January 1, 0219 [sic] SNAP INC.
`Evidence of Coverage on page 61 under the heading, Medical Care that is Not
`Covered, it states:
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`“Residential accommodations. Residential accommodations to treat medical or
`behavioral health conditions, except when provided in a hospital, hospice, skilled
`nursing facilityor [sic] residential treatment center This [sic] exclusion includes
`procedures, equipment, services, supplies or charges for the following:
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`• Domiciliary care provided in a residential institution, treatment center,
`halfway house, or school because a own home [sic] arrangements are not
`available or are unsuitable, and consisting chiefly of room and board, even
`if therapy is included.
`• Care provided or billed by a hotel, health resort, convalescent home, rest
`home, nursing home or other extended care facility home for the aged,
`infirmary, school infirmary, institution providing education in special
`environments, supervised living or halfway house, or any similar facility
`or institution.
`• Services or care provided or billed by a school, custodial carecenter [sic]
`for the developmentally disabled, or outward bound programs, even if
`psychotherapy is included.
`• Wilderness camps.”
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`The appeal also mentions the criteria cited in the denial from Anthem is not in
`compliance with the Mental Health Parity and Addiction Equity Act of 2008
`(MHPAEA). From our understanding, the health plan’s determination is not a
`violation of the Parity Act. We do treat residential treatment centers the same as
`all intermediate levels of care and we are not holding your residential treatment to
`a stricter standard. Intermediate care treatment locations have the goal to move
`the member to treatment on an outpatient basis. Residential treatment is not meant
`for long term care.
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`Lastly, you made a request for copy [sic] of all documents under which the plan is
`operated, the certificate of coverage, criteria and guidelines used for the benefits
`you are seeking and all reports from physicians. We are happy to provide this
`information and will be mailed [sic] under a separate cover.
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`26. The Plaintiffs exhausted their pre-litigation appeal obligations under the terms of the Plan
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`and ERISA.
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`27. The denial of benefits for S.H.’s treatment was a breach of contract and caused J.H. 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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`$50,000.
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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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`28. 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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`Anthem, acting as agent of the Plan, to discharge its duties in respect to claims processing
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`solely in the interests of the participants and beneficiaries of the Plan. 29 U.S.C.
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`§1104(a)(1).
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`29. Anthem and the Plan failed to provide coverage for S.H.’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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`30. ERISA also underscores the particular importance of accurate claims processing and
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`evaluation by requiring that administrators provide a “full and fair review” of claim
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`denials and to engage in a meaningful dialogue with the Plaintiffs in the pre-litigation
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`appeal process. 29 U.S.C. §1133(2).
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`31. Anthem and the agents of the Plan breached their fiduciary duties to S.H. 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 S.H.’s interest and for the exclusive purpose of providing benefits to ERISA
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`participants and beneficiaries, and to provide a full and fair review of S.H.’s claims.
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`32. The actions of Anthem and the Plan in failing to provide coverage for S.H.’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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`33. 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 Anthem’s fiduciary duties.
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`34. 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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`35. 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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`36. 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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`37. The medical necessity criteria used by Anthem 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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`38. Comparable benefits offered by the Plan for medical/surgical treatment analogous to the
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`benefits the Plan excluded for S.H.’s treatment include sub-acute inpatient treatment
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`settings such as skilled nursing facilities, inpatient hospice care, and rehabilitation
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`facilities. For none of these types of treatment does Anthem exclude or restrict coverage
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`of medical/surgical conditions by imposing restrictions such as the wilderness restriction
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`applied to S.H.’s treatment.
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`39. 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. Anthem and the
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`Plan evaluated S.H.’s mental health claims using medical necessity criteria that deviate
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`from generally accepted standards of medical practice. This process resulted in a
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`disparity because the Plan denied coverage for mental health benefits when the analogous
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`levels of medical or surgical benefits would have been paid.
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`40. J.H. contended that the primary way in which Anthem violated MHPAEA was its blanket
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`exclusion of “wilderness” services. He pointed out that Anthem did not bother to define
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`the term and argued that there was a vast difference between recreational camps which
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`were not designed to have any sort of, or minimal, therapeutic benefit and licensed and
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`accredited facilities like Aspiro which offered clinically proven interventions using
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`licensed, clinical staff.
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`41. J.H. argued that if S.H.’s treatment had been offered in a traditional residential treatment
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`environment it would have been approved, however Anthem had denied payment for
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`these services based solely on the physical location of the treatment. He argued that
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`Anthem did not discriminate against analogous medical or surgical providers in this
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`manner.
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`42. The actions of Anthem and the Plan requiring conditions for coverage that do not align
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`with generally accepted standards of care for treatment of mental health and substance
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`use disorders and in requiring accreditation above and beyond the licensing requirements
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`for state law violate MHPAEA because the Plan does not impose similar restrictions and
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`coverage limitations on analogous levels of care for treatment of medical and surgical
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`conditions.
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`43. In this manner, the Defendants violate 29 C.F.R. §2590.712(c)(4)(i) because the terms of
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`the Plan and the medical necessity criteria utilized by the Plan and Anthem, as written or
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`in operation, use processes, strategies, standards, or other factors to limit coverage for
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`mental health or substance use disorder treatment in a way that is inconsistent with, and
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`more stringently applied, than the processes, strategies, standards or other factors used to
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`limit coverage for medical/surgical treatment in the same classification.
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`44. The violations of MHPAEA by Anthem and the Plan are breaches of fiduciary duty and
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`also give the Plaintiffs the right to obtain appropriate equitable remedies as provided
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`under 29 U.S.C. §1132(a)(3) including, but not limited to:
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`(a) A declaration that the actions of the Defendants violate MHPAEA;
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`(b) An injunction ordering the Defendants to cease violating MHPAEA and requiring
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`compliance with the statute;
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`(c) An order requiring the reformation of the terms of the Plan and the medical necessity
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`criteria utilized by the Defendants to interpret and apply the terms of the Plan to
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`ensure compliance with MHPAEA;
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`(d) An order requiring disgorgement of funds obtained by or retained by the Defendants
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`as a result of their violations of MHPAEA;
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`(e) An order requiring an accounting by the Defendants of the funds wrongly withheld by
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`each Defendant from participants and beneficiaries of the Plan as a result of the
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`Defendants’ violations of MHPAEA;
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`(f) An order based on the equitable remedy of surcharge requiring the Defendants to
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`provide payment to the Plaintiffs as make-whole relief for their loss;
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`(g) An order equitably estopping the Defendants from denying the Plaintiffs’ claims in
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`violation of MHPAEA; and
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`(h) An order providing restitution from the Defendants to the Plaintiffs for their loss
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`arising out of the Defendants’ violation of MHPAEA.
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`45. In addition, Plaintiffs are entitled to an award of prejudgment interest pursuant to U.C.A.
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`§15-1-1, and attorney fees and costs pursuant to 29 U.S.C. §1132(g)
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`WHEREFORE, the Plaintiffs seek relief as follows:
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`1.
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`Judgment in the total amount that is owed for S.H.’s medically necessary treatment at
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`Aspiro under the terms of the Plan, plus pre and post-judgment interest to the date of
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`payment;
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`Appropriate equitable relief under 29 U.S.C. §1132(a)(3) as outlined in Plaintiffs’
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`Second Cause of Action;
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`Attorney fees and costs incurred pursuant to 29 U.S.C. §1132(g); and
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`For such further relief as the Court deems just and proper.
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`DATED this 28th day of June, 2022.
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`By s/ Brian S. King
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`Brian S. King
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`Attorney for Plaintiffs
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`2.
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`3.
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`4.
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`County of Plaintiffs’ Residence:
`Ventura County, California.
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