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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
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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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`COMPLAINT
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`Civil No. 4:21-cv-00093-DN
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`PETER P., individually and on behalf of B.P.,
`a minor,
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`Plaintiffs,
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`vs.
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`UNITED HEALTHCARE INSURANCE
`COMPANY OF ILLINOIS, UNITED
`BEHAVIORAL HEALTH/OPTUM, and the
`STAT ANESTHESIA SPECIALISTS, LTD
`MEDICAL BENEFIT PLAN,
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`Defendants.
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`Plaintiff Peter P. (“Peter”), individually and on behalf of B.P., a minor, through his
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`undersigned counsel, complains and alleges against Defendants United HealthCare Insurance
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`Company of Illinois and United Behavioral Health/OPTUM (collectively “UBH”) and the Stat
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`Anesthesia Specialists, LTD Medical Benefit Plan (“the Plan”) as follows:
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`PARTIES, JURISDICTION AND VENUE
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`1. Peter P. (“Peter”) and B.P. (“B.”) are natural persons residing in Will County, Illinois.
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`Peter is B.’s father.
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`2. United HealthCare Insurance Company is an insurance company doing business in Utah
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`and throughout the United States and was the claims administrator as well as the
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`fiduciary under ERISA for the Plan during the treatment at issue in this case.
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`3. United Behavioral Health/OPTUM is an affiliate company specializing in mental health
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`claims and handled the processing of the claims at issue in this case and was the entity
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`responsible for the appeals process in this case.
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`4. 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”). Peter was a
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`participant in the Plan and B. was a beneficiary of the Plan at all relevant times.
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`5. B. received medical care and treatment at Turn About Ranch, Inc. (“TAR”) from August
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`8, 2018 to November 30, 2018. TAR is a licensed residential treatment facility located in
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`Utah, which provides sub-acute inpatient treatment to adolescents with mental health,
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`behavioral, and/or substance abuse problems.
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`6. United HealthCare Insurance Company, acting in its own capacity or through its
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`subsidiary and affiliate (“UBH”) (or under the brand name Optum), denied claims for
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`payment of B.’s medical expenses in connection with her treatment at TAR. This lawsuit
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`is brought to obtain the Court’s order requiring the Plan to reimburse Peter for the
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`medical expenses he has incurred and paid for B’s treatment.
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`7. 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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`8. 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 UBH does
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`business in Utah and the treatment at issue took place in Utah. In addition, venue in Utah
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`2
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`Case 4:21-cv-00093-DN Document 2 Filed 08/31/21 PageID.4 Page 3 of 12
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`will save the Plaintiffs costs in litigating this case. Finally, in light of the sensitive nature
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`of the medical treatment at issue, it is the Plaintiffs’ desire that the case be resolved in the
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`State of Utah where it is more likely 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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`B.’s Developmental History and Medical Background
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`10. B. was strong willed and aggressive from early childhood. She began exhibiting violent
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`behaviors at a young age and had difficulty keeping friends. Her assaults on her brother
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`prompted Peter and his wife to seek therapy for her when she was eight years old. She
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`was also physically aggressive to her parents.
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`11. When B. was ten years old, she was moved to a private Catholic school in hopes that
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`more rigid rules and expectations would rein in some of her aggressive tendencies. They
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`also sought help from a new therapist and although B. received therapy for two more
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`years, there was little progress.
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`12. Peter and his wife continued to struggle with B.’s defiance. B. also began showing
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`symptoms of depression. She lacked empathy and would laugh at inappropriate events.
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`She was drinking alcohol and engaging in unsafe sexual activity.
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`3
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`13. The family again sought a new therapist and B. was diagnosed with Borderline
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`Personality Disorder with histrionic traits, Major Depressive Disorder, and Persistent
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`Depressive Disorder with anxious distress.
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`14. B.’s condition continued to deteriorate and she was isolated, extremely anxious, and was
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`engaging in self-harm. Psychiatric medications were prescribed but B. was constantly
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`nauseated and irritable when taking the medications and did not appear to be getting any
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`benefit from taking them.
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`15. In February of 2018, B. was admitted to the hospital with suicidal ideation.
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`16. B.’s therapist recommended residential treatment as he believed her to be a danger to
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`herself and others.
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`17. B. was admitted to TAR on August 8, 2018.
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`18. A psychiatric assessment was completed prior to B.’s admission and residential treatment
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`was determined to be appropriate for her based on:
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`Severe Individual Intra-psychic Disorder (mental, emotional and behavioral)
`Serious Developmental Disturbances
`Significant Disturbances in Environmental Relationships
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`19. A Master Treatment Plan was created for B.’s stay at TAR which identified areas of
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`concern and proposed specific treatment strategies for addressing each area.
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`20. B. worked very hard during her treatment at TAR and although her progress was slow,
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`she made steady gains in managing her moods, taking responsibility, and developing
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`coping skills.
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`The Appeal
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`21. Claims were submitted to UBH for coverage and payment of B.’s treatment at TAR.
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`4
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`22. On August 28, 2018, UBH wrote to TAR and denied coverage for B.’s treatment on the
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`basis that “[t]he facility does not meet service expectations of your benefit plan,” and
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`asserted that B.’s conditions did not meet the UBH Level of Care Guidelines for the
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`Mental Health Residential Center Level of Care (“Guidelines”).
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`23. Peter appealed the denial in a letter dated January 30, 2019. First, Peter outlined the
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`requirements of ERISA in connection with the appeal process. Among other things,
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`ERISA and its regulations require that all information submitted by a claimant be taken
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`into consideration in evaluating an appeal. Peter argued that in order to understand B.’s
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`conditions and the necessity of her treatment at TAR, it was critical that UBH include all
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`of the information he provided with his appeal.
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`24. Second, Peter discussed the requirements of MHPAEA. He noted that TAR was both a
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`licensed residential treatment facility in the State of Utah and is a CARF certified
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`treatment program. He referred to the definition of residential treatment found in his Plan
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`and argued that TAR clearly met the definition.
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`25. Peter argued that UBH was imposing limitations on claims for coverage for treatment of
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`mental health conditions that were more restrictive than those for other types of
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`intermediate care, a violation of MHPAEA.
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`26. Peter then proceeded to discuss B.’s developmental background, the many instances of
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`failed treatment at lower levels of care, and the recommendation of B.’s treating therapist,
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`a psychologist, for residential treatment.
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`27. Peter cited to therapy notes from B.’s treatment at TAR which demonstrate the medical
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`necessity of her admission at TAR and her ongoing need for residential treatment during
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`her stay at TAR.
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`5
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`28. Finally, Peter compared the Guidelines with the coverage provisions found in his Plan
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`and stated that where discrepancies existed between the two, the terms of the Plan should
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`control.
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`29. Peter requested that in the event UBH determined its initial denial had been correct, that
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`he be provided with specific information about UBH’s decision-making process. He also
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`asked for copies of the administrative services agreement between UBH and his Plan, any
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`clinical guidelines relied on by UBH, guidelines for other types of intermediate care
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`covered by the Plan, and any reports by clinicians who had reviewed the claim.
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`30. On March 7, 2019, UBH maintained it denial of coverage based on its assertion that B.
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`did not meet the Guidelines for residential treatment and could have been treated at a
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`lower level of care. UBH claimed that B. was capable of learning and using coping skills,
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`was not engaging in self-harm, was not feeling like harming herself or others, and was
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`participating in her therapeutic program, she was not eligible for coverage.
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`31. The Plaintiffs exhausted their pre-litigation appeal obligations under the terms of the Plan
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`and ERISA.
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`32. The denial of benefits for B.’s treatment was a breach of contract and caused Peter 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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`$70,000.
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`33. UBH failed to provide the materials Peter had requested, including the medical necessity
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`criteria for mental health and substance use disorder treatment and for skilled nursing or
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`rehabilitation facilities.
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`///
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`///
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`6
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`Case 4:21-cv-00093-DN Document 2 Filed 08/31/21 PageID.8 Page 7 of 12
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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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`34. ERISA imposes higher-than-marketplace quality standards on insurers and plan
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`administrators. It sets forth a standard of care upon plan fiduciaries such as United, acting
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`as agent of the Plan, to “discharge [its] duties in respect to claims processing solely in the
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`interests of the participants and beneficiaries” of the Plan. 29 U.S.C. § 1104(a)(1).
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`35. 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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`36. The denial letters produced by UBH do little to elucidate whether UBH conducted a
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`meaningful analysis of Peter’s appeal or whether it provided him with the “full and fair
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`review” to which he is entitled. UBH failed to substantively respond to the issues
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`presented in Peter’s appeal and did not meaningfully address the arguments or concerns
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`that he raised during the appeal process.
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`37. UBH, as the agent of the Plan, breached its fiduciary duties to Peter and B. when it failed
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`to comply with its obligations under 29 U.S.C. §1104 and 29 U.S.C. §1133 to act solely
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`in the Plaintiffs’ interest and for the exclusive purpose of providing benefits to ERISA
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`participants and beneficiaries, to produce copies of relevant documents and information
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`to claimants upon request, and to provide a full and fair review of Plaintiffs’ claims.
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`38. The actions of UBH, as agent for the Plan, in failing to provide coverage for B.’s
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`medically necessary treatment are a violation of the terms of the Plan and its medical
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`necessity criteria.
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`7
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`Case 4:21-cv-00093-DN Document 2 Filed 08/31/21 PageID.9 Page 8 of 12
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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. The obligation to comply
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`with both ERISA and MHPAEA is part of United’s fiduciary duties.
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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; 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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`43. UBH’s medical necessity criteria for intermediate level mental health treatment benefits
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`are more stringent or restrictive than the medical necessity criteria the Plan applies to
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`intermediate level medical or surgical benefits.
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`8
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`44. Comparable benefits offered by the Plan for medical/surgical treatment analogous to the
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`benefits the Plan excluded for B.’s treatment include sub-acute inpatient treatment
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`settings such as skilled nursing facilities, inpatient hospice care, and rehabilitation
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`facilities.
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`45. For none of these types of treatment does the Plan exclude or restrict coverage of
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`medical/surgical conditions based on medical necessity, geographic location, facility
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`type, provider specialty, or other criteria in the manner UBH excluded coverage of
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`treatment for B. at TAR.
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`46. Specifically, in its review of B.’s claims, UBH’s reviewers improperly utilized acute
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`medical necessity criteria to evaluate the non-acute treatment that B. received.
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`47. UBH’s improper use of acute inpatient medical necessity criteria is revealed in the
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`statements in UBH’s final denial letter such as saying that because B. was not a danger to
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`herself or others, she did not meet the Guidelines for residential treatment.
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`48. 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 B. received.
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`49. 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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`50. As another example of the Plan’s improper application of its criteria to evaluate the
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`treatment B. received, UBH relied on assertions such as B. was participating in her
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`therapeutic treatment as a justification to deny treatment. In fact, B.’s engagement in the
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`program serves as an indicator rather than a contra-indicator of the medical necessity of
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`treatment in a non-acute residential setting.
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`9
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`Case 4:21-cv-00093-DN Document 2 Filed 08/31/21 PageID.11 Page 10 of 12
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`51. 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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`52. The actions of UBH, as agent for the Plan, requiring conditions for coverage that do not
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`align with medically necessary standards of care for treatment of mental health and
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`substance use disorders and in requiring something above and beyond the licensing
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`requirements for state law violate MHPAEA because the Plan does not impose similar
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`restrictions and coverage limitations on analogous levels of care for treatment of medical
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`and surgical conditions.
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`53. When the Plan or its agent receive claims for intermediate level treatment of medical and
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`surgical conditions, the Plan provides benefits and pays the claims as outlined in the
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`terms of the Plan based on generally accepted standards of medical practice. UBH, as
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`agent for the Plan, evaluated B.’s mental health claims using medical necessity criteria
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`that deviate from generally accepted standards of medical practice.
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`54. This process resulted in a disparity because the Plan denied coverage for mental health
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`benefits when the analogous levels of medical or surgical benefits would have been paid.
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`55. 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 UBH, as written or in operation,
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`use processes, strategies, evidentiary 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, evidentiary standards or other
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`factors used to limit coverage for medical/surgical treatment in the same classification.
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`10
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`Case 4:21-cv-00093-DN Document 2 Filed 08/31/21 PageID.12 Page 11 of 12
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`56. UBH and the Plan did not produce the documents Peter requested to evaluate medical
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`necessity and MHPAEA compliance, nor did they address in any substantive capacity
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`Peter’s allegations that UBH and the Plan were not in compliance with MHPAEA.
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`57. The violations of MHPAEA by UBH and the Plan are breaches of fiduciary duty and also
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`give the Plaintiffs the right to obtain appropriate equitable remedies as provided under 29
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`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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`11
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`Case 4:21-cv-00093-DN Document 2 Filed 08/31/21 PageID.13 Page 12 of 12
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`58. 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 B.’s medically necessary treatment at
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`TAR 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 30th day of August, 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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`2.
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`3.
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`4.
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`County of Plaintiffs’ Residence:
`Will County, Illinois
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`12
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