On Friday the court issued an order denying the motion to dismiss in a case brought against Anthem BlueCross BlueShield of Wisconsin et al. The case, filed in the District of Utah, alleges that Anthem BlueCross BlueShield, in administrating the Advocate Aurora Health Care, Inc. Health and Welfare Plan was unfairly requiring higher medical standards for mental health treatment than for medical treatment in violation of the Parity Act, a subset of ERISA.
The plaintiff’s son was admitted to two separate residential treatment facilities after outpatient treatment was not successful. BCBS denied the treatment as not medically necessary, stating that lower levels of care, such as an intensive outpatient program (“IOP”) or a partial hospitalization program (“PHP”), should have been tried prior to moving to a residential setting. BCBS also indicated that there was no evidence of imminent harm to justify skipping these lower levels of care.
The Parity Act, a later amendment to ERISA, requires that insurance companies provide mental health benefits to the same degree and quantity as medical benefits would be provided. This includes “quantitative” (50 days of benefits per year) limitations and “qualitative” (level of care or type of provider) limitations. The defendants moved to dismiss the claim as the plaintiffs had not specified that the plan documents provide any limitation that is not applied to medical treatment. However, the court noted that an “as applied” challenge can suffice to show a disparate coverage of the benefits. The court also noted that a penalty should not be applied to the plaintiff for failing to have access to documentation that is in the sole control of the defendant and has not been produced for discovery.
The plaintiffs are represented by Brian S. King and Gross & Rooney. The defendants are represented by Jones Waldo Holbrook & McDonough.
