Case 4:21-cv-00007-DN Document 2 Filed 01/19/21 PageID.2 Page 1 of 16
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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
`
`THE UNITED STATES DISTRICT COURT
`DISTRICT OF UTAH, CENTRAL DIVISION
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`SCOTT M., individually and on behalf of J. M.
`a minor,
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`COMPLAINT
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`Case No. 4:21-cv-00007 - DN
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`Plaintiffs,
`
`vs.
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`CIGNA HEALTH and LIFE INSURANCE
`COMPANY, and the VERMONT ELECTRIC
`POWER COMPANY HEALTHCARE
`BENEFIT PLAN
`
`Defendants.
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`Plaintiff Scott M (“Scott”), individually and on behalf of J. M. (“J.”) a minor, through his
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`undersigned counsel, complains and alleges against Defendants Cigna Health and Life Insurance
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`Company (“Cigna”) and the Vermont Electric Power Company Healthcare Benefit Plan (“the
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`Plan”) as follows:
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`PARTIES, JURISDICTION AND VENUE
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`1. Scott and J. are natural persons residing in Addison County, Vermont. Scott is J.’s father.
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`2. Cigna is an insurance company headquartered in Bloomfield, Connecticut and was the
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`third-party claims administrator for the Plan during the treatment at issue in this case.
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`3. The Plan is a self-funded employee welfare benefits plan under 29 U.S.C. §1001 et. seq.,
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`the Employee Retirement Income Security Act of 1974 (“ERISA”). Scott was a
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`participant in the Plan and J. was a beneficiary of the Plan at all relevant times. Scott and
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`J. continue to be participants and beneficiaries of the Plan.
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`4. J. received medical care and treatment at Red Cliff Ascent (“RCA”) beginning on
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`January 20, 2018, and Telos beginning on April 18, 2018. These are treatment facilities
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`located in Utah, which provide sub-acute inpatient treatment to adolescents with mental
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`health, behavioral, and/or substance abuse problems.
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`5. Cigna, acting in its own capacity or through its subsidiary and affiliate Cigna Behavioral
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`Health, denied claims for payment of J.’s medical expenses in connection with his
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`treatment at RCA and Telos. This lawsuit is brought to obtain the Court’s order requiring
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`the Plan to reimburse Scott for the medical expenses he has incurred and paid for J.’s
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`treatment and to obtain appropriate equitable relief for the Defendant’s violation of the
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`Mental Health Parity and Addiction Equity Act of 2008 (“MHPAEA”)
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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 Cigna does
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`business in Utah, and the treatment at issue took place in Utah. Finally, in light of the
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`sensitive nature of the medical treatment at issue, it is the Plaintiffs’ desire that the case
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`be resolved in the State of Utah where it is more likely their privacy will be preserved.
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`8. The remedies the Plaintiffs seek under the terms of ERISA and under the Plan are for the
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`benefits due under the terms of the Plan, and pursuant to 29 U.S.C. §1132(a)(1)(B), for
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`appropriate equitable relief under 29 U.S.C. §1132(a)(3) based on the Defendants’
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`violation of MHPAEA, an award of prejudgment interest, and an award of attorney fees
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`and costs pursuant to 29 U.S.C. §1132(g).
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`BACKGROUND FACTS
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`RCA
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`9. On December 7, 2018, the Plaintiffs enlisted the services of the law office of Brian King
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`(“the Firm”).
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`10. In a letter dated December 10, 2018, the Firm requested that Cigna provide it with “[a]
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`complete copy of [J.]’s claim file” including copies of the criteria used to evaluate J.’s
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`claim, emails, reports, other documents, and information to evaluate Cigna’s MHPAEA
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`compliance, as well as internal records connected with the claim. Cigna partially
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`complied with this request but failed to produce several relevant documents. For instance,
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`Cigna produced a copy of J.’s summary plan description (“SPD”) for 2017 and 2019 but
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`did not produce a 2018 copy which was in effect when J. received treatment at RCA.
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`11. J. was admitted to RCA on January 20, 2018, due to a significant history of substance use
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`issues coupled with multiple mental health diagnoses. J. exhibited a significant decline in
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`multiple areas of functioning, he was expelled from school, was stealing to support his
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`drug habits, was self-harming by cutting, had frequent panic attacks, frequently isolated
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`himself, expressed suicidal ideation, and had multiple suicide attempts.
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`12. In a letter which was incorrectly dated as June 18, 2016, Cigna denied payment for J.’s
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`treatment at RCA. The letter stated in part:
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`After a review of the information submitted by your provider and the terms of
`your benefit plan, Cigna’s Peer Reviewer, Robert Cirelli, MD, (LIC # 042-
`0011084), a board certified psychiatrist, has determined that the requested
`services are not covered. This decision was based on the following:
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`RedCliff Ascent is licensed in the State of Utah as an Outdoor Youth Program
`a/k/a Wilderness Program (See enclosed UT DHS Licensing Description).
`Outdoor Youth Programs a/k/a Wilderness Programs are not a covered service
`under the terms of your Plan.
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`Your plan SPD describes the Mental Health and Substance Use Disorder Services
`covered under the Plan. While the plan covers Mental Health (Psychiatric)
`Residential Treatment for Children and Adolescents, Outdoor Youth Programs do
`not qualify as Mental Health (Psychiatric) Residential Treatment Programs.1
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`13. On December 14, 2018, the Firm appealed the denial of payment for J.’s treatment at
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`RCA. The Firm contended that MHPAEA required that insurers provide the same level of
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`coverage for mental health benefits as was provided for medical and surgical benefits.
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`The Firm contended that Cigna’s categorical exclusion of medically necessary mental
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`health services in a wilderness setting while not similarly excluding coverage of
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`medically necessary medical or surgical care from state licensed healthcare programs and
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`providers was a violation of MHPAEA.
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`14. The Firm contended that RCA was “a licensed sub-acute inpatient facility in the state of
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`Utah.” The Firm then quoted the Plan’s criteria for Inpatient Services at Other Health
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`Care Facilities as well as the Plan’s criteria for Mental Health facilities and argued that
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`the treatment at RCA should have been covered.
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`15. The Firm noted that RCA met the Plan’s requirements for an “Other Health Care
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`Facility” as it was a licensed mental healthcare facility and met the requirements laid out
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`in the terms of the Plan to qualify as such a facility. The Firm contended that in spite of
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`1 The SPD does not appear to actually state this in the 2017 or 2019 versions of the SPD. Again, the Firm was not
`provided with the relevant 2018 SPD, but as the reviewer does not cite to any language from the SPD itself, it is
`likely that the 2018 version similarly does not explicitly exclude wilderness programs.
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`their request for a completed claim file, they had yet to receive all of the information they
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`requested. The Firm again asked to be provided with a complete copy of J.’s claim file.
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`16. In a letter dated January 16, 2019, Cigna upheld the denial of payment for J.’s treatment
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`at RCA. The denial, attributed to James M. Appeals Coordinator, stated in part:
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`• Based upon my review, the requested services are not covered. Your covered
`benefits do not include coverage for wilderness programs.
`• Your Omnicrom Group, Inc – DAS Group Certificate, under ‘Exclusions,
`Expense Not Covered and General Limitations’, states the following:
`• Non medical counseling or ancillary services except as specified in The
`Schedule, including but not limited to Custodial Services, education, training,
`vocational rehabilitation, behavioral training, biofeedback, neurofeedback,
`hypnosis, sleep therapy, employment counseling, back school, [sic] return to
`work services, work hardening programs, driving safety, and services, [sic]
`training, educational therapy or other nonmedical ancillary services for
`learning disabilities, developmental delays, autism or mental retardation.
`• Claims for therapeutic services rendered by an independently licensed health
`care professional for the treatment of a mental health condition and/or
`substance use disorder while residing at the wilderness program may be
`submitted for benefit coverage subject to the terms and conditions of the
`Cigna customer’s health plan2
`• Services performed by individual licensed providers as part of the wilderness
`program may be submitted for potential reimbursement.
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`Telos
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`17. J. was admitted to Telos on April 18, 2018.
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`18. In a document dated April 20, 2018, from Bettina Kilburn, MD. Cigna denied payment
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`for J.’s treatment at Telos, stating in part:
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`Based upon the available information, your symptoms do not meet the Cigna
`Behavioral Medical Necessity Criteria for Residential Mental Health Treatment
`for Children and Adolescents for admission from 4/18/18 as Insufficient [sic]
`information has been provided by the facility to support the medical necessity for
`admission. Information such as your history and admission assessment and
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`2 This denial letter language is not present in the 2019 version of the SPD and the 2017 version does not contain
`these last two paragraphs, or at least it does not include them in the location the reviewer cites. As the Firm does not
`possess a copy of the 2018 SPD, it is not clear whether the denial letter misrepresented or altered the terms of the
`Plan to include the last two paragraphs and either mistakenly or intentionally made no indication that it was
`supplying an altered quote, or whether these paragraphs do exist in the 2018 SPD but are not present in the versions
`of the SPD supplied to the Firm.
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`findings have not bee [sic] provided to explain why your treatment cannot occur
`in a less restrictive level of care. Therefore, this request is denied.
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`19. After receiving the above denial, Telos provided the missing documentation in an
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`expedited appeal request and asked that the denial be reviewed.
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`20. In a letter dated June 8, 2018, Cigna again denied payment for J.’s treatment. The letter
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`stated in part:
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`After reviewing the expedited appeal submitted by Telos Residential Treatment,
`the original decision to deny Residential Mental Health Treatment for Children
`and Adolescents from April 18, 2018 - Discharge is upheld. Based upon the
`available information, your symptoms do not meet the Cigna Behavioral Medical
`Necessity Criteria for Residential Mental Health Treatment for Children and
`Adolescents for admission and continued stay from April 18, 2018.
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`21. Cigna’s internal notes show that this letter did not disclose Cigna’s full justification for
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`the denial of care, and that it relied on other factors such as a requirement that J. be
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`suffering from acute psychosis as a justification to deny care. An internal note dated June
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`7, 2018, by Frederic Green, MD, offers more context to Cigna’s decision to deny
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`payment. It stated, in part:
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`Based upon the available information, your symptoms do not meet the Cigna
`Behavioral Medical Necessity Criteria for Residential Mental Health Treatment
`for Children and Adolescents for admission and continued stay from 4/18 as you
`are described to be able to understand information presented to you. There is no
`evidence of acute psychosis or medical illness interfering with your process of
`problem sloving. [sic] Although you are chronically at risk of using unhealthy and
`aggressive problem solving methods there was no identified immediate risk to
`anybody. You have already been exposed to in-home therapy and placement in
`multiple around-the-clock settings meant to provide process ing [sic] of your poor
`decision making. It has been consistently reported that you have had reluctance to
`actively respect boundaries set by others and have been erratic in your
`commitment to active engagement in therapy. Your observed self-harm patterns
`have bee [sic] described t onot [sic] be impulsive but well thought out ways of
`getting attention and specifically breaking rules. What has been documented
`todate [sic] is that it is the structure of the living setting that generates benefit
`rather than your actively working on incororating [sic] new healthier and more
`mature skills. As there is no proposed focused new intervetnion [sic] that is
`thought to be different than that provided in the immediately preceding wilderness
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`program and likely to make a substantial impact on the attitude which seems to be
`the core of the difficulty, there is nothing describing that another immediate
`around-the-clock admission will be of any more benefit than the use of a
`therapeutic group home for long-term behavioral shaping until you are ready to
`effectively use the therapy to which you have been exposed for many months.
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`22. On July 20, 2018, Telos appealed the denial of J.’s treatment. Telos stated that J. had a
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`dual diagnosis of mental health and substance use conditions, had a history of self-harm
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`and “extremely high risk behaviors due to substantial impulse control issues,” as well as
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`multiple suicide attempts. Telos argued that all of these conditions made J.’s treatment
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`medically necessary.
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`23. Telos listed J.’s diagnoses including: Unspecified Anxiety Disorder, Attention Deficit
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`Hyperactivity Disorder, Oppositional Defiant Disorder, Cannabis Use Disorder, Alcohol
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`Use Disorder, and a Parent-Child Relational Problem.
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`24. Telos quoted a March 7, 2018, neuropsychological evaluation from Kevin O’Keefe
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`Psy.D. which stated in part:
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`I am sad all the time; I feel my future is hopeless and will only get worse; As I
`look back, I see a lot of failures; I do not enjoy things as much as I used to; I feel
`quite guilty most of the time; I feel I am being punished; I dislike myself; I am
`more critical of myself than I used to be; I have thoughts of killing myself but I
`have not carried them out; I am so restless or agitated that it is hard to stay still; I
`have lost interest in other people or things than before; I find it more difficult to
`make decisions than usual; I feel more worthless as compared to other people; I
`have less energy than I used to have; I sleep a lot less than usual; I am much more
`irritable than usual; My appetite is somewhat less than usual; I find I cannot
`concentrate on anything; I get more tired or fatigued more than usual. …
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`If [J.] does not receive additional treatment, the potential for these problems to
`become worse is significant. This is particularly true given the fact he has been
`resistant to engaging in therapy in the past and he has struggled to make
`significant progress. [J.] has become skilled at avoidance of his emotional process
`and presenting a positive façade. He has been under significant emotional duress,
`which has contributed to behavioral issues at school. The pervasiveness of his
`substance abuse can also leave him vulnerable to relapse. As a result, he will need
`a higher level of care than can be provided in an outpatient setting.
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`25. Telos stated that upon admission, J. was still struggling with severe drug cravings and
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`intent to use, that he was not in control of his emotions and behaviors, and that he did not
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`have the coping mechanisms that he needed in order to be able to deal with these
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`conditions. Telos contended that J. was “at significant risk of harm at a lower level of
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`care…” and pointed out that outpatient treatment had been unsuccessfully attempted in
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`the past, yet it had not been successful, however he had made progress while at Telos.
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`26. Telos pointed out J. had a dual diagnosis of mental health conditions and substance abuse
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`disorders, and that due to the potential for relapse, national guidelines for drug treatment
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`stated that outcomes were better when treatment lasted for three months or more. Telos
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`contended that J. met the Plan’s criteria for residential treatment. Telos cited to J.’s
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`medical records which showed him exhibiting aggressive behaviors, being placed on
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`safety status, shoplifting, making suicidal statements, attempting to run from the
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`program, and his resistance to treatment.
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`27. In a letter dated August 22, 2018, the denial was upheld. The letter stated in part:
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`The psychiatric evaluation dated 4/24/18 documented that the patient denied
`suicidal and homicidal ideation ("TC [thought content] negative for SI [suicidal
`ideation]/HI [homicidal ideation]"). He was not actively self-harming, and was
`not reporting drug withdrawal symptoms. He was not psychotic and was
`medically stable. The documentation indicated that he was not prescribed
`medication to treat depression or to treat anxiety. He was able to do activities of
`daily living. Subsequent progress notes from the residential program indicated
`that he was thinking of elopement, had passive suicidal thoughts on 5/14/18, and
`on 5/9/18 and 6/16/18 he got into fights with peers.
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`According to the plan definition, a continued residential stay for this patient
`would be medically necessary if it is: (…)
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`In this case, none of the criteria above have been met for the time period under
`review. Based on the clinical information provided, there is no compelling clinical
`rationale for continued 24-hour residential services. Instead, a partial
`hospitalization program would more [sic] appropriate. Therefore, given the
`patient's diagnoses and health condition, the continued residential treatment for
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`dates of service 4/18/18 and forward would not be considered medically
`necessary based on the applicable benefit plan language.
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`28. The Plaintiffs exhausted their pre-litigation appeal obligations under the terms of the Plan
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`and ERISA.
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`29. The denial of benefits for J.’s treatment was a breach of contract and caused Scott 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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`$200,000.
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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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`30. ERISA imposes higher-than-marketplace quality standards on insurers and plan
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`administrators. It sets forth a special standard of care upon plan fiduciaries such as Cigna,
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`acting as agent of the Plan, to “discharge [its] duties in respect to claims processing solely
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`in the interests of the participants and beneficiaries” of the Plan. 29 U.S.C. §1104(a)(1).
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`31. 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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`32. The denial letters produced by Cigna do little to elucidate whether Cigna conducted a
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`meaningful analysis of the Plaintiffs’ appeals or whether it provided them with the “full
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`and fair review” to which they are entitled. Cigna failed to substantively respond to the
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`issues presented in Scott’s appeals and did not meaningfully address the arguments or
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`concerns that the Plaintiffs raised during the appeals process.
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`33. In addition, Cigna did not disclose many of the justifications it utilized to deny J.’s care at
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`Telos. For instance, Cigna in its internal notes relied on factors such as, “you are
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`described to be able to understand information presented to you” as factors to deny care.
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`These factors were not disclosed outside of internal memoranda, depriving the Plaintiffs
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`of the opportunity to fully address the factors leading to Cigna’s denial of payment.
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`34. Also, Cigna and its agents state that wilderness therapy is excluded under the terms of
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`Plan. However, none of the sections that it cites in the SPD actually exclude wilderness
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`care., Moreover, the terms of the Plan do not define the term “wilderness.” Cigna’s denial
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`of J.’s care at RCA is predicated on an undefined term that it erroneously claims to be
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`present in the exclusions section of the Plan. In addition, Cigna relies on language that is
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`either only present in the 2018 section of the SPD or was altered by the Cigna reviewer.
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`35. In its “STANDARDS AND GUIDELINES/MEDICAL NECESSITY CRITERIA For
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`Treatment of Mental Health and Substance Use Disorders” which was in effect during the
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`time J. received treatment at RCA, Cigna states under the heading Wilderness Programs,
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`Boot Camps, and/or Outward Bound Programs:
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`At times state statute defines ‘boot camps’ or ‘wilderness therapy programs’ as
`residential treatment centers, but frequently they do not provide the array or
`intensity of services that would meet the definition of a clinical residential
`treatment center. Most of the ‘boot camps’ and ‘wilderness programs’ do not
`utilize a multidisciplinary team that includes psychologists, psychiatrists,
`pediatricians, and licensed therapists who are consistently involved in the child’s
`care. Also, the Joint Commission nearly universally denies certification for these
`types of programs that fail to meet the quality of care guidelines for medically
`supervised care from licensed mental health professionals.
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`36. In its denial of J.’s treatment at RCA, Cigna appears to have interpreted the terms
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`“frequently” and “most” as always. Unlike many of the wilderness programs to which
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`Cigna objects, RCA does utilize a multidisciplinary team of therapeutic professionals,
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`and is accredited by the Joint Commission. While Cigna’s objections may be applicable
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`to some wilderness programs, they do not apply to RCA.
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`37. Cigna and the agents of the Plan breached their fiduciary duties to J. when they failed to
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`comply with their obligations under 29 U.S.C. §1104 and 29 U.S.C. §1133 to act solely
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`in J.’s interest and for the exclusive purpose of providing benefits to ERISA participants
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`and beneficiaries, to produce copies of relevant documents and information to claimants
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`upon request, and to provide a full and fair review of J.’s claims.
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`38. The actions of Cigna and the Plan in failing to provide coverage for 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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`39. 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.
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`40. 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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`41. 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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`42. 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, restrictions based on geographic location, facility type, provider
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`specialty, and other criteria that limit the scope or duration of benefits for mental health
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`or substance use disorder treatment. 29 C.F.R. §2590.712(c)(4)(ii)(A) and (H).
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`43. The denial of J.’s treatment at RCA is an example of Cigna excluding treatment based
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`on geographic location or provider speciality. As the Firm noted in its appeal, RCA met
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`all of the Plan’s requirements for an “other health care facility” but was denied based on
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`an imagined exclusion in the terms of the Plan, based not on the contents or quality of
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`the treatment, but on where the care was administered.
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`44. The medical necessity criteria used by Cigna for the intermediate level mental health
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`treatment benefits at issue in this case are more stringent or restrictive than the medical
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`necessity criteria the Plan applies to analogous intermediate levels of medical or surgical
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`benefits.
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`45. In addition, the level of care applied by Cigna failed to take into consideration the
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`patient’s safety if he returned to a home environment, as well as the risk of decline or
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`relapse if less intensive care than what was medically necessary was provided.
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`Generally accepted standards of medical practice for medical and surgical rehabilitation
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`under the Plan take into consideration safety issues and considerations of preventing
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`decline or relapse when admission into an intermediate care facility, such as a skilled
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`nursing or rehabilitation facility, is approved.
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`46. Comparable benefits offered by the Plan for medical/surgical treatment analogous to the
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`benefits the Plan excluded for J.’s treatment include sub-acute inpatient treatment settings
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`such as skilled nursing facilities, inpatient hospice care, and rehabilitation facilities. For
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`none of these types of treatment does Cigna exclude or restrict coverage of
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`medical/surgical conditions by imposing acute care requirements for a sub-acute level of
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`care. To do so, would violate not only the terms of the insurance contract, but also
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`generally accepted standards of medical practice.
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`47. In its review of J.’s claims, Cigna’s reviewers improperly utilized acute medical necessity
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`criteria to evaluate the non-acute treatment that J. received. Cigna’s improper use of acute
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`inpatient medical necessity criteria is revealed in the statements in Cigna’s denial letters
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`such as “There is no evidence of acute psychosis.” This improper use of acute inpatient
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`criteria was a nonquantitative treatment limitation that cannot permissibly be applied to
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`evaluate the sub-acute level of care that J. received.
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`48. 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. In addition, although the above language influenced Cigna’s
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`decision to deny care, it was not disclosed as having done so in Cigna’s vague and
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`general denial letter but was present in Cigna’s internal notes.
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`49. 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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`50. 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 criteria
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`of both mental health/substance use disorders and medical/surgical claims.
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`Case 4:21-cv-00007-DN Document 2 Filed 01/19/21 PageID.15 Page 14 of 16
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`51. When Cigna and the Plan receive claims for intermediate level treatment of medical and
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`surgical conditions, they provide benefits and pay the claims as outlined in the terms of
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`the Plan based on generally accepted standards of medical practice. Cigna and the Plan
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`evaluated J.’s mental health claims using medical necessity criteria that deviate from
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`generally accepted standards of medical practice. This process resulted in a disparity
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`because the Plan denied coverage for mental health benefits when the analogous levels of
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`medical or surgical benefits would have been paid.
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`52. 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 Cigna, as written or in
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`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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`53. Cigna and the Plan did not fully produce the documents the Plaintiffs requested to
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`evaluate medical necessity and MHPAEA compliance, nor did they address in any
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`substantive capacity the Plaintiffs’ allegations that Cigna and the Plan were not in
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`compliance with MHPAEA.
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`54. The violations of MHPAEA by Cigna and the Plan give the Plaintiffs the right to obtain
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`appropriate equitable remedies as provided under 29 U.S.C. §1132(a)(3) including, but
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`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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`Case 4:21-cv-00007-DN Document 2 Filed 01/19/21 PageID.16 Page 15 of 16
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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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`55. 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 J.’s medically necessary treatment at
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`RCA and Telos under the terms of the Plan, plus pre and post-judgment interest to
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`the date of payment;
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`2.
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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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`3.
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`Attorney fees and costs incurred pursuant to 29 U.S.C. §1132(g); and
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`Case 4:21-cv-00007-DN Document 2 Filed 01/19/21 PageID.17 Page 16 of 16
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`4.
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`For such further relief as the Court deems just and proper.
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`DATED this 19th day of January, 2021.
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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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`County of Plaintiffs’ Residence:
`Addison County, Vermont
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