W. v. Health Net Life Insurance Company

86 F.4th 1265

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 21, 2023
• Docket: 21-4110
• Status: Published

Opinion

Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS November 21, 2023

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

E.W.; I.W.,

Plaintiffs - Appellants, No. 21-4110 v.

HEALTH NET LIFE INSURANCE COMPANY; HEALTH NET OF ARIZONA, INC.,

Defendants - Appellees.

------------------------------------------

THE NATIONAL HEALTH LAW PROGRAM; THE KENNEDY FORUM,

Amici Curiae. _________________________________

Appeal from the United States District Court for the District of Utah (D.C. No. 2:19-CV-00499-TC) _________________________________

Brian S. King (Tera J. Peterson with him on the briefs), Brian S. King P.C., Salt Lake City, Utah, for Plaintiffs-Appellants.

Michael W. Lieberman (Samuel Hunt Ruddy with him on the brief), Crowell & Moring LLP, Washington, DC, for Defendants-Appellees.

Abigail K. Coursolle, National Health Law Program, Los Angeles, California, filed an amicus curiae brief for the National Health Law Program and the Kennedy Forum. _________________________________

Before HOLMES, Chief Judge, McHUGH and EID, Circuit Judges. Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 2

_________________________________

HOLMES, Chief Judge. _________________________________

Plaintiff-Appellant E.W. was a participant in an employer-sponsored health

insurance plan governed by the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. §§ 1001–1461. E.W.’s daughter, Plaintiff-Appellant I.W., was

a beneficiary of E.W.’s plan. From September 2016 through December 2017, I.W.

received treatment in connection with mental health challenges and an eating disorder

at Uinta Academy (“Uinta”), an adolescent residential treatment center in Utah. In

January 2017, Defendants-Appellees Health Net Insurance Company and Health Net

of Arizona, Inc. (collectively, “Health Net,” “Defendants,” or “Appellees”) began

covering I.W.’s treatment under E.W.’s ERISA plan (the “Plan”). The Plan only

covered treatment that was medically necessary under a definition provided in the

Plan for purposes of all types of medical treatment.

Effective February 23, 2017, Health Net determined I.W.’s care at Uinta was

no longer medically necessary, and it denied coverage from that day forward. In

assessing whether to discontinue coverage, Health Net applied the McKesson

InterQual Behavioral Health 2016.3 Child and Adolescent Psychiatry Criteria (the

“InterQual Criteria”), which are designed to determine whether continued care at a

residential treatment center is medically necessary. As relevant here, under the

InterQual Criteria, care is medically necessary if, within the previous week, the

patient satisfies any one of several criteria relevant to either a serious emotional

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disturbance or an eating disorder. Health Net determined I.W. did not satisfy the

InterQual Criteria within the relevant period and notified Plaintiffs in a letter dated

March 1, 2017.

Plaintiffs allegedly did not receive Health Net’s March 2017 denial letter, and

I.W. remained at Uinta until December 2017, when she was formally discharged.

After receiving notice in May 2018 that Health Net had denied coverage effective

February 23, 2017, Plaintiffs appealed the decision. Health Net again determined

I.W. did not satisfy the InterQual Criteria during the relevant period and upheld its

initial denial. Plaintiffs then appealed to an external reviewer, which upheld the

decision to deny coverage.

Having exhausted their administrative remedies, Plaintiffs filed suit in the

District of Utah, asserting two claims. First, they alleged Health Net violated

ERISA, 29 U.S.C. §§ 1104(a)(1), 1132(a)(1)(B), 1133(2), by failing to comply with

its fiduciary obligations to act solely in I.W.’s interest and by failing to conduct a full

and fair review of her claim for benefits. Second, Plaintiffs alleged Health Net

violated the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction

Equity Act of 2008 (“MHPAEA” or the “Parity Act”), 29 U.S.C. §§ 1132(a)(3),

1185a(a)(3)(A)(ii), by imposing limitations on coverage for mental health treatment

that it did not apply to analogous medical or surgical treatment. Defendants filed a

motion to dismiss for failure to state a claim, which the district court denied as to the

ERISA claim but granted with respect to the MHPAEA claim. Both parties then filed

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cross motions for summary judgment on the remaining ERISA claim. The district

court denied Plaintiffs’ motion and granted summary judgment to Health Net.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district

court’s decision granting summary judgment to Health Net on Plaintiffs’ ERISA

claim, but we reverse its decision dismissing the MHPAEA claim, and we remand

for further proceedings consistent with this opinion.

I

A

I.W. began experiencing behavioral and mental health challenges when she

was eleven years old, shortly after her family moved from Utah to Arizona. She had

trouble making friends, and her grades began to drop substantially. As a result, she

became depressed, engaged in self-harm, and developed anorexia and bulimia.

In 2015, a psychiatrist diagnosed I.W. with “[m]ajor [d]epression” and

“[g]eneralized anxiety disorder,” R., Vol. 32, at 252 (Adult Evaluation Rep. by

Dr. Daniel Amen, dated Oct. 23, 2015), in response to which she began therapy and

psychiatric treatment. However, I.W.’s mental health continued to decline, and in

2016, she attempted suicide on five occasions, leading her counselor and psychiatrist

to “recommend[] a higher level of care,” id., Vol. 32, at 264 (Letter of Med.

Necessity from Dr. Lisa Bravo, dated Aug. 15, 2018). I.W. was admitted to

ViewPoint Center, a psychiatric hospital for teens, where she underwent an eight-

week evaluation. In a report generated following her stay at ViewPoint, I.W.’s

treatment team diagnosed her with persistent depressive disorder with recurrent

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major depressive episodes, generalized anxiety disorder, an unspecified eating

disorder, mild attention deficit hyperactivity disorder, parent-child relational

problems, non-suicidal self-injury, and suicidal behavior disorder. The treatment

team recommended that I.W. enter a residential treatment center or therapeutic

boarding school.

In September 2016, I.W. was admitted to Uinta, an adolescent mental health

residential treatment center. During I.W.’s time at Uinta, staff provided monitoring

and treatment in connection with her eating disorder. For periods during the first

eight months of her stay, Uinta staff placed I.W. “on arms” during meals, meaning

that staff supervised her to ensure she did not restrict her food intake or purge what

she ate. E.g., id., Vol. 13, at 224 (Uinta Daily Log for I.W., dated Apr. 17, 2017).

I.W. also continued to struggle behaviorally. In February 2017, staff caught

her recreationally drinking Benadryl and cough syrup, and I.W. subsequently

“romanticiz[ed] . . . g[etting] high” several months later. Id., Vol. 41, at 31 (Uinta

Therapy Progress Notes for I.W., dated Aug. 4, 2017). I.W. also maintained a sexual

relationship with a peer in violation of Uinta’s rules. And she continued seeking

attention by faking fainting spells, a behavior that predated her admission to Uinta.

Approximately seven months into her stay at Uinta, I.W.’s treatment team

prepared a “Treatment Plan Review” (“TPR”), which summarized her progress

toward each treatment goal. Id., Vol. 13, at 208–09 (Uinta Treatment Plan Rev. for

I.W., dated Apr. 12, 2017). The TPR reported that I.W. was “developing skills to

effectively manage her anxiety” and that “her level of anxiety ha[d] decrease[d]” but

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that she still struggled to manage her anxiety without assistance from staff members.

Id. at 208. It also reported continuing signs of an eating disorder, including further

weight loss, and it stated that I.W. remained “on arms” during and after meals. Id.

Accordingly, the TPR recommended that I.W. “continue her treatment at Uinta” and

explained that “[i]f she [was] . . . discharge[d] at [that] time, it [was] highly probable

that [she] would relapse and re-engage in unhealthy and risky behaviors.” Id. at 209.

On December 14, 2017, approximately fifteen months after I.W. entered Uinta,

her treatment team concluded that she had “met her therapy goals” and recommended

discharging her from the residential treatment center. Id., Vol. 5, at 51 (Uinta

Discharge Summ. for I.W., dated Dec. 14, 2017). Upon returning home, the

treatment team recommended that I.W. “participate in an Intensive Out-Patient

Program” and “continue to participate in individual and family therapy on a weekly

basis.” Id.

B

From the date she was admitted to Uinta through December 31, 2016, an

insurance provider that is not a party to this litigation covered I.W.’s treatment.

Starting on January 1, 2017, I.W.’s treatment was covered by an insurance plan

issued by Defendant-Appellee Health Net Life Insurance Company and administered

by Defendant-Appellee Health Net of Arizona, Inc., through its subsidiary Managed

Health Network, LLC. See id., Vol. 4, at 270 (Letter from Health Net to I.W., dated

Nov. 19, 2018). The Plan is governed by ERISA. See id., Vol. 1, at 14–15 ¶¶ 2–3

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(Compl., filed July 16, 2019). I.W.’s father, E.W., participated in the Plan through

his employer, and I.W. was a beneficiary. Id. at 15 ¶ 3.

Except for preventive services, the Plan only covered services that were

“[m]edically [n]ecessary,” id., Vol. 4, at 142 (Health Net Evid. of Coverage), which

the Plan defined as:

health care services that a Physician, exercising prudent clinical judgment, would provide to a patient for the purpose of preventing, evaluating, diagnosing or treating an Illness, Injury, disease or its symptoms, and that are:

1. In accordance with generally accepted standards of medical practice;

2. Clinically appropriate, in terms of type, frequency, extent, site and duration, and considered effective for the patient’s Illness, Injury or disease; and

3. Not primarily for the convenience of the patient, Physician, or other health care Provider, and not more costly than an alternative service or sequence of services at least as likely to produce equivalent therapeutic or diagnostic results as to the diagnosis or treatment of that patient’s Illness, Injury or disease.

Id. at 244. The Plan defined “generally accepted standards of medical practice” as

“standards that are based on credible scientific evidence published in peer-reviewed

medical literature generally recognized by the relevant medical community,

Physician Specialty Society recommendations, the views of Physicians practicing in

relevant clinical areas and any other relevant factors.” Id.

Though not specified in the Plan itself, Health Net uses the InterQual Criteria

to determine whether remaining at a residential treatment center beyond fifteen days

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is medically necessary. See id., Vol. 3, at 107 (Letter from Health Net to the Parents

of I.W., dated Mar. 1, 2017); id. at 144 (Notes of Care Activities for I.W., dated Mar.

1, 2017); see also id. at 34, 36–38 (InterQual Criteria, dated 2016). Under the

InterQual Criteria, continued care after fifteen days is medically necessary if, within

the past week, the patient displays symptoms of either an “[e]ating [d]isorder” or a

“[s]erious emotional disturbance.” Id. at 36–37.

For an “[e]ating [d]isorder,” the patient must display at least one of the

following five symptoms: (1) “[p]ronounced body image distortion”; (2) inability “to

judge [the] amount of food to eat at all meals”; (3) inability “to make appropriate

food choices without assistance or supervision at all meals”; (4) “[u]nachieved

prescribed weight or behaviors to prevent weight gain,” including “[a]ttempting to

restrict at meals even when supervised by staff,” “[d]iscarding food from most

meals,” “food refusal or persistent decline in oral intake,” “[r]estricting at meals

when not supervised,” and “[w]eight gain less than [two pounds] per week and

consuming prescribed calories for therapeutic weight gain”; or (5) “uncontrolled

ritualistic or compulsive eating behavior at all meals.” Id.

For a “[s]erious emotional disturbance,” the patient must satisfy at least one of

the following conditions, or display at least one of the following symptoms, within

the past week: (1) “[a]ggressive or assaultive behavior”; (2) “[a]ngry outbursts”; (3)

“[d]epersonalization or derealization”; (4) “[d]estruction of property”; (5) becoming

“[e]asily frustrated and impulsive”; (6) “[h]omicidal ideation without intent”; (7)

“[h]ypervigilence or paranoia”; (8) “[n]onsuicidal self-injury”; (9) “[p]ersistent rule

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violations”; (10) “[p]sychiatric medication refractory or resistant and symptoms

increasing or persisting”; (11) “[p]sychomotor agitation or retardation”; (12) running

away “from [a] facility or while on home pass”; (13) “[s]exually inappropriate”

behavior; (14) “[s]uicidal ideation without intent”; or (15) discharge is planned

within the next week but the treatment goals are not yet met or the patient’s family or

guardian requests “further intervention.” Id. at 37.

C

On or around February 23, 2017, Health Net engaged Prest & Associates

(“Prest”), an independent review organization, to conduct a peer-to-peer review

assessing whether I.W.’s care at Uinta remained medically necessary. Dr. Diana

Antonacci, a psychiatrist affiliated with Prest, conducted the review, which covered

I.W.’s medical records and included a discussion with one of I.W.’s physicians at

Uinta. Notes reflecting Dr. Antonacci’s findings provided, inter alia, that:

1. [I.W.] has no suicidal or homicidal ideation. There are no psychotic symptoms. There is no evidence of grave disability. There has been no recent aggression of [sic] severe agitation. There are no severe mood symptoms.

2. There are no comorbid substance use concerns. There are no significant medical problems. The patient is compliant w/ medications. No side effects are documented.

Id. at 143–44. Dr. Antonacci concluded that as of February 23, 2017, I.W. did not

meet the InterQual Criteria for a residential treatment level of care. Id. at 144.

Dr. Antonacci further found “no evidence that [I.W.] continue[d] to require 24-hour-

a-day/7-day-a-week supervision to make progress in her goal areas” and that “[c]are

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could continue in a less restrictive setting,” such as an “intensive outpatient”

program. Id.

Dr. Jay Butterman, a psychiatrist affiliated with Health Net, reviewed

Dr. Antonacci’s findings as well as “I.W.’s medical records, input from I.W.’s

treatment team,” and the InterQual Criteria. Id., Vol. 2, at 89–90 (Aff. of Dr. Jay

Butterman, dated Mar. 25, 2021). He likewise “concluded it was no longer medically

necessary for I.W. to continue receiving extended residential treatment as of

February 23, 2017.” Id. at 90.

On March 1, 2017, Health Net sent a letter to I.W.’s parents providing notice

that it would not cover I.W.’s care at Uinta for services rendered on or after

February 23, 2017. The letter explained that Health Net determined I.W.’s

ineligibility for continued coverage using the “McKesson InterQual medical

necessity standards.” Id., Vol. 3, at 107. According to the letter, “[t]hese standards

state that there must be reports within the last week of physical altercations, sexually

inappropriate behavior, evidence of worsening depression, runaway behavior, self-

mutilation, or suicidal or homicidal ideation.” Id. Based on medical records

submitted to Health Net, the letter stated that I.W. was “not having any of these

symptoms or behaviors.” Id. Rather, she had reportedly “learned many healthy

coping skills” and was “working on strategies to control her anxiety.” Id.

Accordingly, the letter reported that continued care at Uinta was no longer medically

necessary and recommended that I.W. instead enter an “Adolescent Mental Health

Partial Hospital Program.” Id. at 108.

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In a letter sent to Health Net on May 10, 2018, after I.W. was discharged,

I.W.’s parents claimed that they never received Health Net’s March 2017 letter.

I.W.’s parents requested that Health Net “complete a full and fair review of [I.W.’s]

medical records”—which they attached—“and issue a valid determination letter.”

Id., Vol. 13, at 168 (Letter from A.W. (I.W.’s mother) to Health Net, dated May 10,

2018). On June 8, 2018, Health Net sent a letter to I.W.’s parents notifying them that

Health Net would review its determination. Health Net’s letter attached its

March 2017 coverage-denial letter and the InterQual Criteria, and it requested that

I.W.’s parents submit any additional information pertaining to their appeal by

June 13, 2018.

Health Net assigned Dr. Andrei Jaeger, an affiliated psychiatrist, to conduct

the review. Like Dr. Antonacci and Dr. Butterman, Dr. Jaeger concluded that

continued treatment at Uinta was not medically necessary as of February 23, 2017.

See id., Vol. 5, at 40–43 (Rev. by Dr. Andrei Jaeger, dated June 6, 2018). Based on

Dr. Jaeger’s findings and having received no further information from I.W.’s parents,

Health Net upheld its initial decision to deny coverage, and it sent a letter notifying

I.W.’s parents of Health Net’s decision. The letter explained that Health Net based

its decision on the InterQual Criteria, under which “there must be reports within the

last week of either physical altercations, sexually inappropriate behavior, evidence of

worsening depression, runaway behavior, self-mutilation, [or] suicidal or homicidal

ideation.” Id. at 33 (Letter from Health Net to A.W., dated July 16, 2018). Because

I.W. had not experienced “any of these symptoms or behaviors” within the week

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prior to February 23, 2017, the letter advised that I.W.’s circumstances “did not meet

[the] medical necessity criteria.” Id. at 33–34.

After receiving Health Net’s July 2018 letter, I.W. sent a letter to Health Net

requesting an independent external review. The letter requested that the reviewer

“not utilize the InterQual Criteria utilized by Health Net in their previous reviews”

because they “have not been reviewed by an independent review organization” and

“require patients to exhibit acute symptoms in order to qualify for subacute levels of

care.” Id., Vol. 32, at 168 (Letter from I.W. to Health Net, dated Nov. 14, 2018).

Instead, I.W. requested that the reviewer “rely on [her] plan’s definition of medical

necessity.” Id.

Health Net forwarded the request to the Arizona Department of Insurance,

which engaged MAXIMUS Federal Services to conduct the review. An independent

psychiatrist reviewed the Plan, I.W.’s medical records, the InterQual Criteria, and

materials pertinent to I.W.’s appeals. See id., Vol. 5, at 16–18 (Letter from

MAXIMUS to Ariz. Dep’t of Ins., dated Dec. 19, 2018). Under the InterQual

Criteria, the reviewer explained that “there must be documentation within the last

week of either physical altercations, sexually inappropriate behavior, evidence of

worsening depression, runaway behavior, self-mutilation, [or] suicidal or homicidal

ideation.” Id. at 18. Based on I.W.’s medical records, the reviewer found that I.W.

“did not display any of these such behaviors within the specified time,” “concluded

that the services were not medically necessary,” and recommended upholding Health

Net’s determination. Id. at 17–18.

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D

Having exhausted the prelitigation appeal requirements under the Plan and

ERISA, Plaintiffs filed a complaint asserting two counts against Health Net in the

District of Utah. In Count 1, they alleged Health Net violated ERISA, which requires

“a fiduciary [to] discharge his duties with respect to a plan solely in the interest of

the participants and beneficiaries,” 29 U.S.C. § 1104(a)(1), and requires covered

plans to provide “a full and fair review by the appropriate named fiduciary of [a]

decision denying [a] claim,” 29 U.S.C. § 1133(2). Plaintiffs alleged Health Net

failed to “act solely in [I.W.’s] interest and for the exclusive purpose of providing

benefits to ERISA participants and beneficiaries and to provide a full and fair review

of [I.W.’s] claims.” R., Vol. 1, at 22 ¶ 33.

In Count 2, Plaintiffs alleged Health Net violated MHPAEA, 29 U.S.C.

§§ 1132(a), 1185a, and regulations implementing the statute. Under the statutory

provision relevant here, covered insurance plans must ensure that “treatment

limitations applicable to . . . mental health or substance use disorder benefits are no

more restrictive than the predominant treatment limitations applied to substantially

all medical and surgical benefits covered by the plan (or coverage) and [that] there

are no separate treatment limitations that are applicable only with respect to mental

health or substance use disorder benefits.” 29 U.S.C. § 1185a(a)(3)(A)(ii); see 29

C.F.R. § 2590.712(c)(4)(i). Plaintiffs alleged that “the Plan’s medical necessity

criteria for intermediate level mental health treatment benefits are more stringent or

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restrictive than the medical necessity criteria the Plan applies to intermediate level

medical or surgical benefits.” R., Vol. 1, at 23 ¶ 39. In particular, they alleged:

40. Comparable benefits offered by the Plan for medical/surgical treatment analogous to the benefits the Plan excluded for [I.W.’s] treatment include sub-acute inpatient treatment settings such as skilled nursing facilities, inpatient hospice care, and rehabilitation facilities. For none of these types of treatment does Health Net exclude or restrict coverage of medical/surgical conditions based on medical necessity, geographic location, facility type, provider specialty, or other criteria in the manner Health Net excluded coverage of treatment for [I.W.] at Uinta.

41. The actions of Health Net and the Plan requiring that [I.W.] satisfy acute care medical necessity criteria in order to obtain coverage for residential treatment violates MHPAEA because the Plan does not require individuals receiving treatment at sub-acute inpatient facilities for medical/surgical conditions to satisfy acute medical necessity criteria in order to receive Plan benefits.

Id. at 23.

Health Net filed a motion to dismiss for failure to state a claim, which the

district court denied as to Plaintiffs’ ERISA claim in Count 1 but granted as to

Plaintiffs’ MHPAEA claim in Count 2. See R., Vol. 1, at 165 (Dist. Ct. Order, filed

May 19, 2020). The parties then filed cross motions for summary judgment on

Plaintiffs’ remaining ERISA claim, and the district court granted summary judgment

to Health Net. See R., Vol. 2, at 191 (Dist. Ct. Order & Mem., filed Sept. 10, 2021).

This appeal followed.

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II

Plaintiffs appeal the district court’s order dismissing their MHPAEA claim and

its decision granting summary judgment to Health Net on their ERISA claim. We

address these issues in turn. First, we hold that Plaintiffs stated a claim under

MHPAEA, and thus we reverse the district court’s decision dismissing the MHPAEA

claim, and remand for further proceedings. Second, we affirm the district court’s

decision granting summary judgment to Health Net on the ERISA claim, concluding

the district court properly determined Health Net did not violate ERISA in denying

continued benefits to I.W.

We review de novo a district court’s order granting a Rule 12(b)(6) motion to

dismiss for failure to state a claim. Stan Lee Media, Inc. v. Walt Disney Co., 774

F.3d 1292, 1296 (10th Cir. 2014). In doing so, we must “accept all . . . well-pleaded

allegations as true and view them in the light most favorable to” Plaintiffs. Warnick

v. Cooley, 895 F.3d 746, 750 (10th Cir. 2018).

“Dismissal under Rule 12(b)(6) is appropriate only if the complaint . . . lacks

enough facts to state a claim to relief that is plausible on its face.” Abdi v. Wray, 942

F.3d 1019, 1025 (10th Cir. 2019) (quoting United States ex rel. Reed v. KeyPoint

Gov’t Sols., 923 F.3d 729, 764 (10th Cir. 2019)). Plaintiffs “need not provide

‘detailed factual allegations,’” but they must allege “enough factual detail to provide

‘fair notice of what the . . . claim is and the grounds upon which it rests.’” Warnick,

895 F.3d at 751 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

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“Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“Accordingly, in examining a complaint under Rule 12(b)(6), we will disregard

conclusory statements and look only to whether the remaining, factual allegations

plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188,

1191 (10th Cir. 2012).

Plaintiffs argue they stated a plausible claim under MHPAEA. We begin by

setting out the test that governs their MHPAEA claim. Applying this test, we

conclude that the district court erred in determining that Plaintiffs failed to state a

claim.

MHPAEA is an amendment to ERISA. See N.R. ex rel. S.R. v. Raytheon Co.,

24 F.4th 740, 746 (1st Cir. 2022). Congress enacted the statute “to end

discrimination in the provision of insurance coverage for mental health and substance

use disorders as compared to coverage for medical and surgical conditions in

employer-sponsored group health plans.” Am. Psychiatric Ass’n v. Anthem Health

Plans, Inc., 821 F.3d 352, 356 (2d Cir. 2016).

We have not addressed in a precedential decision whether MHPAEA provides

a separate cause of action. However, the First Circuit has concluded that the right of

action that exists under ERISA, 29 U.S.C. § 1132(a)(3),1 provides a vehicle through

1 As relevant here, ERISA authorizes civil actions “by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any 16 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 17

which private parties may assert MHPAEA claims. See N.R., 24 F.4th at 749 & n.3

(explaining “the defendants agree that § 1132(a)(3) is the avenue to pursue a Parity

Act claim” and holding that the plaintiff stated a claim under MHPAEA). Health Net

“does not concede that MHPAEA establishes a private cause of action.” Aplees.’

Resp. Br. at 15 n.4. However, notably, Health Net does not seek to challenge through

argument here whether MHPAEA allows plaintiffs to pursue a private claim for relief

under § 1132(a)(3). In other words, Health Net makes no meaningful argument in its

briefing that challenges the propriety of Plaintiffs asserting here a MHPAEA claim

under § 1132(a)(3). For purposes of the appeal, therefore, the question of the

viability of such a claim is uncontested, and we have no need to opine on the matter.

We resolve the parties’ dispute on the assumption that, as a categorical matter, such a

claim is viable.

MHPAEA imposes coverage requirements on “a group health plan (or health

insurance coverage offered in connection with such a plan) that provides both

medical and surgical benefits and mental health or substance use disorder benefits.”

29 U.S.C. § 1185a(a)(3)(A). As relevant here, covered plans must ensure that:

(1) “treatment limitations applicable to . . . mental health or substance use disorder

benefits are no more restrictive than the predominant treatment limitations applied to

substantially all medical and surgical benefits covered by the plan (or coverage)”;

provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3). 17 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 18

and (2) “there are no separate treatment limitations that are applicable only with

respect to mental health or substance use disorder benefits.” Id.

A “‘treatment limitation’ includes limits on the frequency of treatment,

number of visits, days of coverage, or other similar limits on the scope or duration of

treatment.” Id. § 1185a(a)(3)(B)(iii). Pursuant to authority conferred under

MHPAEA, see id. § 1185a(a)(7)(A), agency regulations have been issued, providing

that the statute covers both “quantitative treatment limitations” (“QTL”) and

“nonquantitative treatment limitations” (“NQTL”), 29 C.F.R. § 2590.712(a).

Whereas QTL “are expressed numerically (such as 50 outpatient visits per year),”

NQTL “otherwise limit the scope or duration of benefits for treatment under a plan or

coverage.” Id. With respect to NQTL, “any processes, strategies, evidentiary

standards, or other factors used in applying . . . [NQTL] to mental health or substance

use disorder benefits” must be “comparable to, and . . . applied no more stringently

than, the [same factors] . . . used in applying the limitation with respect to

medical/surgical benefits.” Id. § 2590.712(c)(4)(i).

Neither our Circuit nor any others have defined the elements of a MHPAEA

claim. See, e.g., Michael D. v. Anthem Health Plans of Ky., Inc., 369 F. Supp. 3d

1159, 1174 (D. Utah 2019) (“[T]here is no clear law on what is required to state a

claim for a Parity Act violation.”); Nancy S. v. Anthem Blue Cross & Blue Shield,

No. 2:19-cv-00231, 2020 WL 2736023, at *3 (D. Utah May 26, 2020) (“[T]he Tenth

Circuit has not promulgated a test to determine what is required to state a claim for a

Parity Act violation . . . .”) (unpublished); Jonathan Z. v. Oxford Health Plans,

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No. 2:18-cv-383, 2020 WL 607896, at *13 (D. Utah Feb. 7, 2020) (same)

(unpublished).2

Lacking concrete guidance from the courts of appeals, district courts within

and outside this Circuit have adopted different tests. Some district courts have

applied a test containing the following elements:

(1) the relevant group health plan is subject to the Parity Act; (2) the plan provides both medical/surgical benefits and mental health or substance use disorder benefits; (3) the plan includes a treatment limitation for mental health or substance use disorder benefits that is more restrictive than medical/surgical benefits; and (4) the mental health or substance use disorder benefit being limited is in the same classification as the medical/surgical benefit to which it is being compared.

Michael D., 369 F. Supp. 3d at 1174 (quoting A.H. ex rel. G.H. v. Microsoft Corp.

Welfare Plan, No. C17-1889, 2018 WL 2684387, at *6 (W.D. Wash. June 5, 2018)

(unpublished)); see also Gallagher v. Empire HealthChoice Assurance, Inc., 339 F.

Supp. 3d 248, 256 (S.D.N.Y. 2018) (same).

More recently, district courts in this Circuit have transitioned to a three-part

test, which requires a plaintiff to:

(1) identify a specific treatment limitation on mental health benefits; (2) identify medical/surgical care covered by the plan that is analogous to the mental health/substance abuse care for which the plaintiffs seek benefits; and (3) plausibly

2 We rely herein on certain persuasive unpublished decisions. District court decisions are of course not controlling law for us. Moreover, we fully recognize that even unpublished decisions issued by panels of our own Court are not binding; they aid us only insofar as they are persuasive. See, e.g., Bear Creek Trail, LLC v. BOKF, N.A., 35 F.4th 1277, 1282 n.8 (10th Cir. 2022); see also FED. R. APP. P. 32.1; 10TH CIR. R. 32.1. 19 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 20

allege a disparity between the treatment limitation on mental health/substance abuse benefits as compared to the limitations that defendants would apply to the covered medical/surgical analog.

David P. v. United Healthcare Ins. Co., No. 2:19-cv-00225, 2020 WL 607620, at *15

(D. Utah Feb. 7, 2020) (unpublished); see also Annemarie O. v. United Healthcare

Ins. Co., No. 1:20-cv-164, 2021 WL 2532947, at *2 (D. Utah June 21, 2021) (same)

(unpublished); Heather E. v. Cal. Physicians’ Servs., No. 2:19-cv-415, 2020 WL

4365500, at *3 (D. Utah July 30, 2020) (same) (unpublished); James C. v. Anthem

Blue Cross & Blue Shield, No. 2:19-cv-38, 2020 WL 3452633, at *2 (D. Utah June

24, 2020) (same) (unpublished); Nancy S., 2020 WL 2736023, at *3 (same); Ryland

v. Blue Cross Blue Shield Healthcare Plan of Ga., No. CIV-19-807, 2020 WL

6531239, at *2 (W.D. Okla. July 17, 2020) (same) (unpublished).

In this case, the district court applied a standard that draws elements from both

tests described supra: it required Plaintiffs to “allege that Defendants imposed a

limitation on mental health benefits that is more restrictive than limitations they place

on analogous medical/surgical benefits.” R., Vol. 1, at 163. And at oral argument,

the parties agreed we may apply a similar standard that combines elements from both

tests applied in the district courts. See Oral Arg. at 02:50–03:46 (Plaintiffs agreeing);

id. at 18:47–19:31 (Health Net agreeing).

Under the test to which the parties agreed at oral argument, a plaintiff must:

(1) [p]lausibly allege that the relevant group health

plan is subject to MHPAEA;

20 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 21

(2) identify a specific treatment limitation on mental

health or substance-use disorder benefits covered by the

plan;

(3) identify medical or surgical care covered by the

plan that is analogous to the mental health or substance-use

disorder care for which the plaintiffs seek benefits; and

(4) plausibly allege a disparity between the treatment

limitation on mental health or substance-use disorder

benefits as compared to the limitations that defendants

would apply to the medical or surgical analog.

We lay out the basis for each of these elements in the text of MHPAEA before

applying the test to Plaintiffs’ claim.

With respect to the first element, MHPAEA’s parity requirement applies to “a

group health plan (or health insurance coverage offered in connection with such a

plan).” 29 U.S.C. § 1185a(a)(3)(A). ERISA, in turn, provides specific definitions of

a “group health plan” and “health insurance coverage.” Id. §§ 1191b(a)(1), (b)(1).

Thus, to bring a claim under MHPAEA, a plaintiff must plausibly allege that the plan

underlying her claim is one to which the statute applies.

The second element accounts for the fact that MHPAEA applies to “treatment

limitations” that are “applicable to . . . mental health or substance use disorder

benefits” covered under the plan. 29 U.S.C. § 1185a(a)(3)(A)(ii). As explained

previously, the statute defines a “treatment limitation,” id. § 1185a(a)(3)(B)(iii),

21 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 22

which regulations break into quantitative and non-quantitative categories, 29 C.F.R.

§ 2590.712(a). As such, under the statutory terms, plaintiffs must identify a

“treatment limitation” that satisfies the statutory definition and applies to mental

health or substance use disorder benefits.

The third element captures the comparison MHPAEA requires between the

treatment limitations applied to benefits for medical or surgical care and those

applied to benefits for care addressing mental health or substance-use disorders. See

29 U.S.C. § 1185a(a)(3)(A)(ii). MHPAEA itself does not explicitly require a

comparison between analogous forms of treatment, but such a requirement is

implicit. Indeed, comparing like categories is a quintessential feature of any

discrimination claim. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973) (requiring, as an element of a prima facia claim under Title VII,

allegations that after the plaintiff was rejected for a position, “the position remained

open and the employer continued to seek applicants from persons [with]

complainant’s qualifications” (emphasis added)); Ashaheed v. Currington, 7 F.4th

1236, 1249 (10th Cir. 2021) (explaining that the Equal Protection Clause of the

Fourteenth Amendment “is ‘essentially a direction that all persons similarly situated

should be treated alike’” (emphasis added) (quoting A.M. ex rel. F.M. v. Holmes, 830

F.3d 1123, 1166 (10th Cir. 2016))). As we explain further herein when analyzing

Plaintiffs’ claim, MHPAEA’s implementing regulations specify the types of

limitations that are comparable for purposes of QTL and NQTL, but we think it

22 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 23

readily apparent from the statute itself that MHPAEA requires a comparison between

forms of treatment that are analogous.

Finally, the fourth element—which calls for allegations of a disparity—follows

from the type of comparison MHPAEA requires. The statute prohibits limitations on

benefits for mental health or substance-use disorder treatment that are “more

restrictive than the predominant treatment limitations applied to substantially all

medical and surgical benefits covered by the plan.” 29 U.S.C. § 1185a(a)(3)(A)(ii).

It also prohibits plans from imposing “separate treatment limitations” on benefits for

mental health or substance-use disorder treatment that do not apply to benefits for

medical or surgical care. Id. Both prohibitions zero in on disparities in limitations

applied to benefits for medical or surgical care versus those applied to benefits for

mental health or substance-use disorder treatment.

Within the confines of the test we have discussed, a plaintiff may challenge

treatment limitations either facially or as applied. See 29 C.F.R. § 2590.712(c)(4)(i)

(specifying that with respect to NQTL, MHPAEA’s parity requirement applies to

“the terms of the plan (or health insurance coverage) as written and in operation”

(emphasis added)); see also Michael W. v. United Behav. Health, 420 F. Supp. 3d

1207, 1235 (D. Utah 2019) (“[E]ven if plaintiffs do not plead a plausible facial Parity

Act challenge to an insurance plan on its own terms, they may instead allege that the

plan as applied by the insurance administrator violates the Parity Act.”); Nancy S.,

2020 WL 2736023, at *3 (“[P]laintiffs often must plead ‘as-applied’ challenges to

enforce their Parity Act rights when a disparity in benefits criteria occurs in

23 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 24

application rather than in the plan terms.”); Kurt W. v. United Healthcare Ins. Co.,

No. 2:19-cv-223, 2019 WL 6790823, at *4 (D. Utah Dec. 12, 2019) (“[D]isparate

treatment limitations that violate the Parity Act can be either facial (as written in the

language or the processes of the plan) or as-applied (in operation via application of

the plan).” (citation omitted)) (unpublished).

A facial challenge focuses on the terms of a plan. Cf. Nancy S., 2020 WL

2736023, at *3 (explaining that a plaintiff may bring as-applied challenges when

“[t]reatment limitations are not necessarily evident on the face of an insured’s plan

terms”). A plaintiff must identify an express limitation on benefits for mental health

or substance use disorder treatment and demonstrate a disparity compared to benefits

for the relevant medical or surgical analogue. See Jeff N. v. United HealthCare Ins.

Co., No. 2:18-cv-00710, 2019 WL 4736920, at *3 (D. Utah. Sept. 27, 2019)

(unpublished).

By contrast, as-applied challenges focus on treatment limitations that a plan

applies “in operation.” 29 C.F.R. § 2590.712(c)(4)(i). In an as-applied challenge, a

plaintiff must plausibly allege that a “defendant differentially applies a facially

neutral plan term.” Jeff N., 2019 WL 4736920, at *3–4 (quoting Anne M. v. United

Behav. Health, No. 2:18-CV-808, 2019 WL 1989644, at *2 (D. Utah May 6, 2019));

see also Vorpahl v. Harvard Pilgrim Health Ins. Co., No. 17-cv-10844, 2018 WL

3518511, at *4 (D. Mass. July 20, 2018) (holding that the plaintiff stated a MHPAEA

claim by plausibly alleging the defendant “differentially applie[d] a facially neutral

plan term”) (unpublished).

24 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 25

Plaintiffs argue they have stated claims for both facial and as-applied

MHPAEA challenges. See Aplts.’ Opening Br. at 29. But in their Reply Brief,

Plaintiffs concede that if we find they stated an as-applied claim, we need not reach

their facial challenge. See Aplts.’ Reply Br. at 3 n.2. Because we ultimately

conclude Plaintiffs stated an as-applied MHPAEA claim, we need not reach their

facial challenge on this appeal, and we turn directly to their as-applied challenge.

Plaintiffs allege Health Net committed an as-applied MHPAEA violation by

determining I.W.’s eligibility for continued benefits using the InterQual Criteria.

Under their theory, by applying the InterQual Criteria, Defendants required them to

“satisfy acute [care] medical necessity criteria” to obtain coverage for residential

treatment without “requir[ing] individuals receiving treatment at sub-acute inpatient

facilities for medical/surgical conditions to satisfy acute medical necessity criteria.”

See Aplts.’ Opening Br. at 29 (quoting R., Vol. 1, at 23 ¶ 41). As Plaintiffs

elaborate:

Comparable benefits offered by the Plan for medical/surgical treatment analogous to the benefits the Plan excluded for [I.W.’s] treatment include sub-acute inpatient treatment settings such as skilled nursing facilities, inpatient hospice care, and rehabilitation facilities. For none of these types of treatment does Health Net exclude or restrict coverage of medical/surgical conditions based on medical necessity, geographic location, facility type, provider specialty, or other criteria in the manner Health Net excluded coverage of treatment for [I.W.] at Uinta.

R., Vol. 1, at 23 ¶ 40.

25 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 26

Under the four-part test that we apply for purposes of resolving this case, there

is no dispute that Plaintiffs have plausibly alleged that the Plan at issue here is

subject to MHPAEA, thereby satisfying the first element. The dispute focuses on the

remaining three elements. We conclude Plaintiffs’ allegations with respect to each

remaining element satisfy our pleading standards.

As to the second element, Plaintiffs have identified a specific treatment

limitation on mental health benefits covered under the Plan. They alleged

Defendants required them to satisfy “acute care medical necessity criteria” to receive

benefits for treatment in a subacute care setting. Id. at 23 ¶ 41. This allegation

concerns a NQTL, as it addresses a limitation on “the scope . . . of benefits for

treatment under a plan or coverage,” 29 C.F.R. § 2590.712(a), which “include[s] . . .

[m]edical management standards limiting or excluding benefits based on medical

necessity,” id. § 2590.712(c)(4)(ii)(A). And, as we explain herein, Plaintiffs

plausibly alleged that the InterQual Criteria capture acute conditions while residential

treatment centers, as defined in the Plan, provide subacute care.

When interpreting an ERISA plan, we apply principles of construction from

contract law. See Flinders v. Workforce Stabilization Plan of Phillips Petrol. Co.,

491 F.3d 1180, 1193 (10th Cir. 2007), abrogated on other grounds by Metro. Life

Ins. Co. v. Glenn, 554 U.S. 105 (2008). Under those principles, we adhere to

definitions the parties adopt and afford undefined terms their plain and ordinary

meanings. See Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151, 1157

26 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 27

(10th Cir. 2007) (explaining “parties to a contract are [generally] free to define their

terms in any manner they wish”); see also Am. Tooling Ctr., Inc. v. Travelers Cas. &

Sur. Co. of Am., 895 F.3d 455, 459–60 (6th Cir. 2018) (applying Michigan law and

explaining that if an insurance policy does not define a term, courts must interpret the

term based on its ordinary meaning); Prestwick Cap. Mgmt., Ltd. v. Peregrine Fin.

Grp., Inc., 727 F.3d 646, 656 (7th Cir. 2013) (“Undefined contractual terms are

typically afforded their plain and ordinary meanings . . . .”).

Applying these principles of construction, we conclude Plaintiffs plausibly

alleged that the InterQual Criteria are specific to acute care. The Plan defines an

“[a]cute” condition as “the sudden onset of an Illness or Injury, or a sudden change in

a person’s health status, requiring prompt medical attention, but which is of limited

duration.” R., Vol. 4, at 44.3 Plaintiffs allege that the InterQual Criteria required

reports “within the last week of physical altercations, sexually inappropriate

behavior, evidence of worsening depression, runaway behavior, self-mutilation, or

3 Although courts “generally ‘should not look beyond the confines of the complaint itself’” when deciding a Rule 12(b)(6) motion to dismiss, MacArthur v. San Juan Cnty., 309 F.3d 1216, 1221 (10th Cir. 2002) (quoting Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 960 (10th Cir. 2001), rev’d on other grounds, 537 U.S. 79 (2002)), courts may consider “documents attached to or referenced in the complaint if they ‘are central to the plaintiff’s claim and the parties do not dispute the documents’ authenticity,’” Brokers’ Choice of Am. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017) (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)). Plaintiffs refer to the Plan in their Complaint. See, e.g., R., Vol. 1, at 14–15 ¶¶ 2–3. And the Plan is central to their MHPAEA claim, as it defines the various types of care and services—such as the terms “[a]cute,” “residential treatment [center],” and “skilled nursing facility”—on which their MHPAEA claim relies. Compare id. at 19, 23 (referring to plan terms), with id., Vol. 4, at 44, 57–58 (defining plan terms). 27 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 28

suicidal or homicidal ideation.” See id., Vol. 1, at 17 (quoting id., Vol. 3, at 107).

Because these criteria focus on recently manifested or worsening conditions that

would likely require “prompt medical attention,” id., Vol. 4, at 44, they are plausibly

specific to acute care as defined in the Plan. Health Net does not dispute this point

on appeal.

Likewise, Plaintiffs also plausibly alleged that a residential treatment center

qualifies as a “sub-acute” care setting. The Plan defines a “Residential Treatment

Center” as “a twenty-four hour, structured and supervised group living environment

for children, adolescents or adults where psychiatric, medical and psychosocial

evaluation can take place, and distinct and individualized psychotherapeutic

interventions can be offered to improve their level of functioning in the community.”

Id. at 57. Nothing in this definition focuses on “a sudden change in a person’s health

status” that “require[es] prompt medical attention” for a “limited duration”—which

stands in stark contrast to the definition of “acute” condition. Id. at 44.

To the contrary, in ordinary parlance, a “living environment”—a term that the

Plan mentions—refers most naturally to a place one remains for an extended period.

“Living” in this sense refers to “occupy[ing] a home.” Live, MERRIAM-WEBSTER

DICTIONARY, https://www.merriam-webster.com/dictionary/live (last visited Nov. 20,

2023) (providing “living in a shabby room” as an example). And a home is “one’s

place of residence,” Home, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-

webster.com/dictionary/home (last visited Nov. 20, 2023), which is “the place where

one actually lives as distinguished from . . . a place of temporary sojourn,”

28 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 29

Residence, MERRIAM-WEBSTER DICTIONARY, https://www.merriam-

webster.com/dictionary/residence (last visited Nov. 20, 2023).

For these reasons, Plaintiffs have plausibly alleged a treatment limitation on

the mental health care covered under the Plan.

As for the third element, Plaintiffs identified medical or surgical care covered

by the Plan that is analogous to the mental health and substance abuse care for which

they seek benefits. As analogues, Plaintiffs allege coverage for services in “sub-

acute inpatient treatment settings such as skilled nursing facilities, inpatient hospice

care, and rehabilitation facilities.” R., Vol. 1, at 23. We agree with Plaintiffs that

inpatient skilled nursing facilities qualify as a relevant analog.

MHPAEA itself does not explicitly identify the types of medical or surgical

care that are analogous to care at a residential treatment center for purposes of stating

a claim. The statute simply requires plans to ensure “treatment limitations applicable

to . . . mental health or substance use disorder benefits are no more restrictive than

the predominant treatment limitations applied to substantially all medical and

surgical benefits covered by the plan.” 29 U.S.C. § 1185a(a)(3)(A)(ii). But

MHPAEA directs the Departments of the Treasury, Labor, and Health and Human

Services (the “Departments”) to issue guidance designed to assist plans in complying

with the statute. See id. § 1185a(a)(7)(A); see also id. § 1185a(g); Danny P. v. Cath.

Health Initiatives, 891 F.3d 1155, 1158 (9th Cir. 2018) (“Congress has conferred

upon certain agencies the power to issue rules that give guidance and information

29 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 30

regarding the application of the Parity Act . . . .”). And at least for purposes of this

case, the Departments promulgated regulations that specify the types of medical or

surgical care that is analogous to care at a residential treatment center.

As a general rule, the regulations provide as follows:

A group health plan . . . that provides both medical/surgical benefits and mental health or substance use disorder benefits may not apply any financial requirement or treatment limitation to mental health or substance use disorder benefits in any classification that is more restrictive than the predominant financial requirement or treatment limitation of that type applied to substantially all medical/surgical benefits in the same classification.

29 C.F.R. § 2590.712(c)(2)(i). The regulations then specify six benefit

“classifications” for use in applying the parity requirement: (1) inpatient, in-network;

(2) inpatient, out-of-network; (3) outpatient, in-network; (4) outpatient, out-of-

network; (5) emergency care; and (6) prescription drugs. See id.

§ 2590.712(c)(2)(ii)(A).

The regulations also provide further guidance that is specific to both “financial

requirements and [QTLs],” on one hand, and NQTLs, on the other. Id. With respect

to financial requirements and QTLs, the regulations focus on “the predominant

financial requirement or [QTL] . . . applie[d] to substantially all medical/surgical

benefits in the same classification.” Final Rules Under the Paul Wellstone and Pete

Domenici Mental Health Parity and Addiction Equity Act of 2008, 78 Fed. Reg.

68240, 68245 (Nov. 13, 2013) [hereinafter, “Final Rules”]. The regulations define

the terms “predominant” and “substantially all,” 29 C.F.R. § 2590.712(c)(3)(i), and

30 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 31

those terms serve as the focal point when comparing medical or surgical care to care

for mental health or substance use disorders in the context of a financial requirement

or a QTL, see Final Rules, 78 Fed. Reg. at 68245.

By contrast, the regulations adopt a different parity standard for NQTLs. See

id. (explaining that the regulations “provide different parity standards with respect to

quantitative treatment limitations and NQTLs”). With respect to NQTLs, a plan

may not impose a [NQTL] with respect to mental health or substance use disorder benefits in any classification unless . . . any processes, strategies, evidentiary standards, or other factors used in applying the [NQTL] to mental health or substance use disorder benefits in the classification are comparable to, and are applied no more stringently than, the processes, strategies, evidentiary standards, or other factors used in applying the limitation with respect to medical/surgical benefits in the classification.

29 C.F.R. § 2590.712(c)(4)(i) (emphasis added). Thus, the parity analysis for NQTLs

does not contain any inquiry into the “predominant” limitation applied to

“substantially all” medical or surgical benefits. Instead, for NQTLs, the regulations

simply require a comparison between medical or surgical care and care for mental

health or substance use disorders that fall within the same “classification.” Id. And

the six classifications specified in the regulations are “the only classifications used in

applying the rules” governing parity. Id. § 2590.712(c)(2)(ii)(A).

For purposes of identifying analogous treatments, we need not decide—as a

general matter—whether MHPAEA or its implementing regulations require anything

beyond a comparison between benefits in the same “classification.” Even assuming

they do, the Final Rules specify at least one type of medical or surgical care that is

31 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 32

analogous to care at a residential treatment center. In the background section, the

Final Rules acknowledged comments requesting that “the Departments clarify how

MHPAEA affects the scope of coverage for intermediate services (such as residential

treatment, partial hospitalization, and intensive outpatient treatment) and how these

services fit within the six classifications.” Final Rules, 78 Fed. Reg. at 68246.

By way of response, the Final Rules explain that “[p]lans and issuers must

assign covered intermediate mental health and substance use disorder benefits to the

existing six benefit classifications in the same way that they assign comparable

intermediate medical/surgical benefits to these classifications.” Id. at 68247. As one

example, the rules explain that “if a plan or issuer classifies care in skilled nursing

facilities or rehabilitation hospitals as inpatient benefits, then the plan or issuer must

likewise treat any covered care in residential treatment facilities for mental health or

substance user disorders as an inpatient benefit.” Id.

These passages demonstrate that care in an inpatient skilled nursing facility is

analogous to care in a residential treatment center—which also provides inpatient

care—for purposes of MHPAEA’s parity requirement. Although the Final Rules did

not provide an exhaustive list of analogues, they describe treatment in skilled nursing

facilities and residential treatment centers as “comparable” intermediate services. Id.

Based on this guidance in the Final Rules, and consistent with caselaw, we conclude

Plaintiffs plausibly alleged that care in inpatient skilled nursing facilities and

residential treatment centers are analogues for purposes of MHPAEA. See Danny P.,

891 F.3d at 1158 & n.6 (implying that treatment at skilled nursing facilities and

32 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 33

residential treatment centers is analogous under MHPAEA); David P., 2020 WL

607620, at *17 (same) (quoting Kurt W., 2019 WL 6790823, at *5); E.M. v. Humana,

No. 2:18-cv-00789, 2019 WL 4696281, at *3 (D. Utah Sept. 26, 2019) (same)

Finally, Plaintiffs have plausibly alleged a disparity between the treatment

limitations applied to benefits for mental health or substance abuse care compared to

those applied to benefits for medical or surgical care. As explained supra, Plaintiffs

plausibly alleged that Health Net applied acute-care medical necessity criteria to

benefits for care in a residential treatment center, which is a subacute care setting.

And Plaintiffs further alleged that Health Net “does not require individuals receiving

treatment at sub-acute inpatient facilities for medical/surgical conditions,” such as

“skilled nursing facilities, inpatient hospice care, and rehabilitation facilities,” “to

satisfy acute medical necessity criteria.” R., Vol. 1, at 23.

Health Net argues Plaintiffs failed to plausibly allege a disparity because they

did not identify the subacute medical necessity criteria it applies to the relevant

medical or surgical analogues. See Aplees.’ Resp. Br. at 42–43; see also R., Vol. 1,

at 164 (concluding Plaintiffs’ “only allegation linking Health Net’s review to the

Plan’s treatment of medical/surgical claims is conclusory” and that “[w]ithout a

plausible link to benefit claims in the medical/surgical categories, Plaintiffs do not

allege a cause of action under the Parity Act” (citing id., Vol. 1, at 23 ¶ 41)). We

disagree.

33 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 34

The allegation that Health Net applied subacute criteria to analogous medical

or surgical care, such as treatment in a skilled nursing facility, is a factual allegation

that we must accept as true on Health Net’s motion to dismiss. Examining

allegations that the Supreme Court and our Circuit have deemed “factual” rather than

“conclusory,” Iqbal, 556 U.S. at 681, illustrates why Plaintiffs’ allegations suffice.

Iqbal provides one example. There, the Court concluded allegations “that

petitioners ‘knew of, condoned, and willfully and maliciously agreed to subject [the

plaintiff]’ to harsh conditions of confinement ‘as a matter of policy, solely on

account of [his] religion, race, and/or national origin and for no legitimate

penological interest,’” were “conclusory” because they “amount[ed] to nothing more

than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim.”

Id. at 680–81 (quoting Twombly, 550 U.S. at 555). By contrast, the following

allegations were “factual” and entitled to a presumption of truth: “the [FBI], under

the direction of Defendant Mueller, arrested and detained thousands of Arab Muslim

men . . . as part of its investigation of the events of September 11”; and “[t]he policy

of holding post-September-11th detainees in highly restrictive conditions of

confinement until they were ‘cleared’ by the FBI was approved by Defendants

Ashcroft and Mueller in discussions in the weeks after September 11, 2001.” Id. at

681 (emphasis omitted). The plaintiff did not cite to any evidence supporting the

allegations that the FBI had “detained thousands of Arab Muslim men” or that the

defendants had approved those detentions. Id. But the Court accepted these

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allegations as true on a motion to dismiss, without requiring any further detail or

substantiation.

Likewise, in Khalik v. United Air Lines, we differentiated between conclusory

and factual allegations in addressing claims for discrimination, retaliation, and

wrongful termination. See 671 F.3d at 1193–94. We concluded that several

allegations were “conclusory” and not entitled to the assumption of truth, including

allegations that:

(1) [the plaintiff] was targeted because of her race, religion, national origin and ethnic heritage; (2) she was subjected to a false investigation and false criticism; and (3) [the] [d]efendant’s stated reasons for the termination and other adverse employment actions were exaggerated and false, giving rise to a presumption of discrimination, retaliation, and wrongful termination.

Id. at 1193. By contrast, the following allegations qualified as “facts,” the truth of

which we assumed:

(1) Plaintiff is an Arab-American who was born in Kuwait; (2) Plaintiff’s religion is Islam; (3) Plaintiff performed her job well; (4) Plaintiff was grabbed by the arm in the office; (5) Plaintiff complained internally about discrimination; (6) Plaintiff also complained internally about being denied FMLA leave; (7) Plaintiff complained about an email that described a criminal act; and (8) Defendant terminated Plaintiff’s employment position.

Id. at 1193–94. Allegations that, for example, the plaintiff “performed her job well”

and “was grabbed by the arm in the office,” were unsubstantiated assertions. See id.

But we accepted these allegations as true without requiring any further support. See

id.; see also Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010) (accepting as true,

35 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 36

and finding sufficient to state First Amendment claim, allegations that a prison guard

“intentionally, and for the purpose of harassing [the plaintiff], confiscated and

destroyed letters sent to him by persons outside the prison ‘under the guise’ of sticker

and perfume violations”) (citation omitted).

Plaintiffs’ allegation that Health Net applied subacute medical necessity

criteria to treatment in a skilled nursing facility, see R., Vol. 1, at 23, is akin to the

allegations Iqbal and Khalik deemed “factual.” The relevant allegation does not

“recit[e]” any “element[]” of a MHPAEA claim. Iqbal, 556 U.S. at 681. Rather, it

alleges a specific characteristic of the criteria Health Net applies to certain medical or

surgical treatments. Nothing in Iqbal or Khalik suggests that Plaintiffs must further

substantiate these allegations by reciting the specific criteria Health Net applies in a

medical or surgical setting in order to benefit from the presumption of truth that

attaches to factual allegations.4

This is not a case where Plaintiffs had ready access to the criteria Health Net

applies when assessing coverage at a skilled nursing facility but simply failed to

4 Health Net cites to our decision in Bekkem v. Wilkie, 915 F.3d 1258, 1275 (10th Cir. 2019), as support for its position that Plaintiffs’ allegations are conclusory, see Aplees.’ Resp. Br. at 42, 46–47. But Bekkem merely concluded “it is insufficient for a plaintiff to allege . . . that she did not receive an employment benefit that ‘similarly situated’ employees received,” which is a “legal conclusion” that is not entitled to the presumption of truth on a motion to dismiss. 915 F.3d at 1275 (quoting Hwang v. Kan. State Univ., 753 F.3d 1159, 1164 (10th Cir. 2014)). Here, Plaintiffs do not merely restate the elements of a MHPAEA claim. They allege a “set of facts”—namely, that Health Net applied acute-care medical necessity criteria to benefits for mental health treatment while applying subacute criteria to benefits for medical or surgical treatment—that “plausibly suggest[s] differential treatment.” Id. 36 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 37

allege those criteria in their complaint. ERISA requires plan administrators, “upon

written request of any participant or beneficiary, [to] furnish a copy of the . . .

instruments under which the plan is established or operated.” 29 U.S.C.

§ 1024(b)(4). “Instruments under which the plan is established or operated include

documents with information on medical necessity criteria for both medical/surgical

benefits and mental health and substance use disorder benefits . . . .” 29 C.F.R.

§ 2590.712(d)(3). Invoking their rights under these provisions, Plaintiffs allegedly

requested the medical necessity criteria associated with treatment in the analogous

medical or surgical settings, but Health Net did not produce the relevant information.

See R., Vol. 1, at 21, 24.5

Health Net’s refusal to provide the medical necessity criteria Plaintiffs

requested further supports our conclusion that Plaintiffs plausibly alleged a disparity.

In describing the types of “details” that plaintiffs must “plead to satisfy the

plausibility requirement,” we have emphasized “details the [p]laintiff should know,”

which are typically those within the plaintiff’s possession or with which the plaintiff

has personal experience. Khalik, 671 F.3d at 1194 (stating plaintiff should know,

5 ERISA provides a private right of action under which a “participant or beneficiary” may sue an administrator that fails, within thirty days of the request, to provide information that administrators are required to furnish pursuant to 29 U.S.C. § 1024(b)(4). See 29 U.S.C. §§ 1132(a)(1)(A), (c)(1). Under the private right of action, a court may award damages “up to $100 a day from the date of such failure or refusal” and “other relief as [the court] deems proper.” Id. § 1132(c)(1). Nevertheless, Health Net does not argue that plaintiffs must first bring a challenge under § 1132(a)(1)(A) before asserting a claim under MHPAEA when the administrator has failed to provide requested information. 37 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 38

inter alia, “who she requested leave from and who denied her,” “when she

complained about not receiving leave and when she was terminated,” “details about

how Defendant treated her compared to other non-Arabic or non-Muslim employees,”

and “the reasons Defendant gave her for termination and why in her belief those

reasons were pretextual”). MHPAEA provides a mechanism through which plaintiffs

can access the criteria that a plan uses when assessing benefits for analogous medical

or surgical care. But Health Net refused to provide that information on Plaintiffs’

request. We therefore see no reason why Plaintiffs “should” have “know[n]” the

specific criteria that Health Net applies when assessing coverage for treatment at a

skilled nursing facility. Id.

Health Net nevertheless insists that it did in fact provide the information

Plaintiffs requested. See Aplees.’ Resp. Br. at 49–50. It notes that in Plaintiffs’

letter requesting an independent external review dated November 14, 2018, they

requested the following:

a copy of all documents under which the plan is operated on [I.W.’s] behalf. This includes the Certificate of Coverage, any insurance policies in place for the benefits [I.W. was] seeking, any administrative services agreements that exist, and Mental Health/Substance Abuse criteria including Skilled Nursing Facility and Rehabilitation criteria utilized to evaluate the claim.

R., Vol. 32, at 195; accord id., Vol. 5, at 11. Health Net argues that by requesting

the “criteria utilized to evaluate the claim,” Aplees.’ Resp. Br. at 49 (quoting R., Vol.

5, at 11 (emphasis added)), Plaintiffs requested information Health Net had already

provided in a letter dated June 8, 2018—namely, the InterQual Criteria, see id. at 49–

38 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 39

50 (citing R., Vol. 10, at 189 (providing the InterQual Criteria in a letter dated June

8, 2018)).6

We are unconvinced. Plaintiffs sent their letter requesting an external review

after Health Net had sent them the InterQual Criteria, so there is a reasonable

inference that Plaintiffs were not requesting information they had already received.

The letter also explicitly requested criteria used in a “Skilled Nursing Facility and

Rehabilitation [facility],” R., Vol. 32, at 195, neither of which are covered in the

InterQual Criteria that apply to mental health treatment. And in the same letter,

Plaintiffs laid out in detail their apprehension that applying the InterQual Criteria

would violate MHPAEA due to disparities with the criteria Health Net applies to

medical or surgical treatment, such as that occurring in “skilled nursing facilities.”

Id. at 192–93. Their reference to MHPAEA reinforces their position that they indeed

requested the criteria applicable to medical or surgical treatment. “[V]iew[ing] [the

allegations] in the light most favorable to” Plaintiffs, Warnick, 895 F.3d at 750, there

6 Plaintiffs argue that considering the letters dated June 8 and November 14, 2018, is impermissible on a Rule 12(b)(6) motion to dismiss. See Aplts.’ Opening Br. at 34 n.5. However, as Health Net responds, see Aplees.’ Resp. Br. at 50 n.13, in evaluating whether Plaintiffs have stated a claim under Rule 12(b)(6), courts “may properly rely on . . . materials referenced in Plaintiff[s’] complaint,” see Al-Turki v. Tomsic, 926 F.3d 610, 621 n.6 (10th Cir. 2019); see also GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (“[If a] document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.”). The Complaint refers to—and relies on—both the letters of June 8 and November 14, 2018. See R., Vol. 1, at 18–19 ¶¶ 17, 19 (citing both letters); id. at 24 ¶ 42 (alleging Health Net did not provide “the documents . . . Plaintiffs requested to evaluate medical necessity and MHPAEA compliance”). As such, we may consider the letters on Health Net’s motion to dismiss. 39 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 40

is a reasonable inference that Health Net did not comply when Plaintiffs requested

the criteria Health Net now faults them for omitting from their complaint.

For the foregoing reasons, we conclude Plaintiffs plausibly alleged the final

element of a MHPAEA claim—namely, a disparity between treatment limitations

applied to benefits for care at a residential treatment center compared to benefits for

analogous medical or surgical care.

Health Net argues that, even accepting as true Plaintiffs’ allegations

concerning disparities in coverage based on acuity, Plaintiffs fail to state a claim

because applying the InterQual Criteria was ostensibly consistent with MHPAEA

regulations. We conclude this argument does not justify dismissal on a Rule 12(b)(6)

motion.

Health Net’s position stems from MHPAEA regulations that provide examples

of circumstances in which a NQTL would not violate the statute. Example 4

addresses a plan that covers “medical/surgical benefits and mental health and

substance use disorder benefits” so long as they are “medically appropriate.”

29 C.F.R. § 2590.712(c)(4)(iii). The example assumes that “evidentiary standards

used in determining whether a treatment is medically appropriate (such as the number

of visits or days of coverage) are based on recommendations made by panels of

experts with appropriate training and experience” and “are applied in a manner that is

based on clinically appropriate standards of care.” Id. In these circumstances, “the

plan complies with [the parity requirement applicable to NQTL] because the

40 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 41

processes for developing the evidentiary standards used to determine medical

appropriateness and the application of these standards to mental health and substance

use disorder benefits are comparable to and are applied no more stringently than for

medical/surgical benefits.” Id. And the Plan is compliant in this example “even if

the application of the evidentiary standards does not result in similar . . . benefits

utilized for mental health conditions or substance use disorders as it does for any

particular medical/surgical condition.” Id.

Health Net argues Plaintiffs cannot state a claim using their acuity theory

because the InterQual Criteria are ostensibly consistent with Example 4 in the

regulations. Plaintiffs concede in their complaint that “Health Net applies

medical/surgical criteria that are ‘based on generally accepted standards of medical

practice.’” Aplees.’ Resp. Br. at 40 (quoting R., Vol. 1, at 24 ¶ 44). Health Net also

claims Plaintiffs have abandoned an argument in their complaint that the InterQual

Criteria do not reflect generally accepted standards of care. And they argue other

courts have “recognized that InterQual reflects widely accepted, evidence-based

industry standards.” Id. Accordingly, even accepting arguendo “that Health Net

requires higher acuity for extended mental health residential treatment than extended

treatment at medical/surgical facilities,” Health Net argues the alleged disparity

complies with relevant regulations. Id. at 41–42.

Health Net’s position is untenable because it would require us to find on a

motion to dismiss that the InterQual Criteria qualify as generally accepted standards

of care. In doing so, we would impermissibly move beyond Plaintiffs’ allegations

41 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 42

and view the facts in the light most favorable to Health Net. Cf. Warnick, 895 F.3d at

750–51 (explaining courts must accept well-pleaded allegations as true and view

them in the light most favorable to the non-moving party on a motion to dismiss).

Contrary to what Health Net suggests, Plaintiffs never abandoned their

argument that the InterQual Criteria, in particular, do not qualify as generally

accepted standards. They alleged in their complaint that the InterQual Criteria

“deviate from generally accepted standards of medical practice.” R., Vol. 1, at 24

¶ 44. In their opposition to Defendants’ motion for summary judgment, which only

addressed Plaintiffs’ ERISA claim (not their MHPAEA claim), Plaintiffs did “not ask

the Court to reach” the issue of whether the InterQual Criteria qualify as generally

accepted standards because they argued that Health Net violated ERISA “even . . .

assum[ing]” the InterQual Criteria are generally accepted. Id., Vol. 2, at 107. But

Plaintiffs nevertheless noted “they do not necessarily agree that the InterQual Criteria

reflect generally accepted standards of care.” Id. The district court concluded in

granting summary judgment to Health Net on Plaintiffs’ ERISA claim that the

InterQual Criteria qualify as generally accepted standards. See id. at 202. However,

Health Net does not cite to any authority for the proposition that the district court’s

finding on a motion for summary judgment concerning a separate claim is relevant in

determining whether Plaintiffs stated a claim under MHPAEA on a motion to

dismiss, where we must accept their allegations as true.

Accordingly, even assuming arguendo that Example 4 would foreclose

Plaintiffs’ claim were a court to find that the InterQual Criteria qualify as generally

42 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 43

accepted standards, no such finding follows from Plaintiffs’ allegations. We

therefore reject Health Net’s position that Example 4 requires dismissal, and we hold

that Plaintiffs have stated a claim under MHPAEA.

We now turn to Plaintiffs’ claim under ERISA challenging Health Net’s

decision to deny benefits. “ERISA sets minimum standards for employer-sponsored

health plans, which may be administered by a separate entity.” D.K. v. United Behav.

Health, 67 F.4th 1224, 1236 (10th Cir. 2023) (citing 29 U.S.C. § 1001).

Administrators such as Health Net are analogous “to the trustee of a common-law

trust,” and their “benefit determination[s]” constitute “fiduciary act[s].” Glenn, 554

U.S. at 111. Acting as fiduciaries, administrators must “discharge [their] duties with

respect to a plan solely in the interest of the participants and beneficiaries.”

29 U.S.C. § 1104(a)(1).

ERISA also requires administrators to follow specific procedures when

denying benefits. See D.K., 67 F.4th at 1236. Administrators generally must “set[]

forth the specific reasons” underlying their coverage determinations. 29 U.S.C.

§ 1133(1). And they must provide an opportunity for a “full and fair review . . . of

the decision denying the claim.” Id. § 1133(2).

Plaintiffs claim Health Net violated ERISA by failing to act solely in I.W.’s

interest as a beneficiary and failing to conduct a “full and fair review” upon denying

coverage for a portion of I.W.’s stay at Uinta. R., Vol. 1, at 22 ¶ 33 (citing 29 U.S.C.

§§ 1104, 1133). The district court granted summary judgment to Health Net, and we

43 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 44

review that decision de novo, applying the same standard as the district court. See

LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment &

Dependent Life Ins. Plan, 605 F.3d 789, 795 (10th Cir. 2010).

Courts must generally review ERISA claims challenging benefit denials

“under a de novo standard.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,

115 (1989). But “[w]here the plan gives the administrator discretionary authority,”

and “procedural irregularities” did not infect the administrator’s decision, “we

employ a deferential standard of review, asking only whether the denial of benefits

was arbitrary and capricious.” LaAsmar, 605 F.3d at 796 (quoting Weber v. GE Grp.

Life Assurance Co., 541 F.3d 1002, 1010 (10th Cir. 2008)).

The district court concluded that Health Net had “discretionary authority to

determine eligibility for benefits or to construe the terms of the plan” and that Health

Net did not commit any procedural errors in denying benefits. R., Vol. 2, at 197

(quoting Firestone, 489 U.S. at 115); see id. at 201–05. Accordingly, the district

court asked only whether Health Net acted arbitrarily and capriciously in denying

benefits to I.W. On appeal, Plaintiffs do not challenge the standard applied in district

court. We will therefore analyze their ERISA claim under the more deferential

standard.

Under arbitrary and capricious review, we assess whether an administrator’s

decision “(1) ‘was the result of a reasoned and principled process, (2) is consistent

with any prior interpretations by the plan administrator, (3) is reasonable in light of

any external standards, and (4) is consistent with the purposes of the plan.’” D.K., 67

44 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 45

F.4th at 1236 (quoting Flinders, 491 F.3d at 1193); see also Tracy O. v. Anthem Blue

Cross Health & Life Ins., 807 F. App’x 845, 854 (10th Cir. 2020) (citing Flinders,

491 F.3d at 1193).

We will “consider only ‘the arguments and evidence before the administrator

at the time it made [its] decision,’” Finley v. Hewlett-Packard Co. Emp. Benefits Org.

Income Prot. Plan, 379 F.3d 1168, 1176 (10th Cir. 2004) (quoting Sandoval v. Aetna

Life & Cas. Ins. Co., 967 F.2d 377, 380 (10th Cir. 1992)), and we will uphold an

administrator’s decision to deny benefits “so long as it is predicated on a reasoned

basis,” Adamson v. Unum Life Ins. Co. of Am., 455 F.3d 1209, 1212 (10th Cir. 2006).

“[T]here is no requirement that the basis relied upon be the only logical one or even

the superlative one.” Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d

1124, 1134 (10th Cir. 2011) (quoting Adamson, 455 F.3d at 1212). “It need only be

sufficiently supported by facts within [the plan administrator’s] knowledge.” Finley,

379 F.3d at 1176 (quoting Kimber v. Thiokol Corp., 196 F.3d 1092, 1098 (10th Cir.

1999)).

Plaintiffs challenge the district court’s decision on two grounds. First, they

contend the district court erroneously refused to address their argument that Health

Net failed to consider whether I.W. met the InterQual Criteria pertaining to an eating

disorder because Plaintiffs did not present that argument during the administrative

appeals process. Second, Plaintiffs argue Health Net’s denial letters did not provide

a reasoned explanation. We reject both arguments and uphold the district court’s

decision granting summary judgment to Health Net on Plaintiffs’ ERISA claim.

45 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 46

We begin by addressing whether Plaintiffs administratively exhausted their

argument pertaining to I.W.’s eating disorder. In its denial letters, Health Net

explained that InterQual criteria standards “state that there must be reports within the

last week of physical altercations, sexually inappropriate behavior, evidence of

worsening depression, runaway behavior, self-mutilation, or suicidal or homicidal

ideation.” R., Vol. 3, at 107; see also id., Vol. 32, at 197; id. at 6. Because these

behaviors do not include the InterQual Criteria that apply to an eating disorder, in

district court, Plaintiffs argued Health Net arbitrarily and capriciously failed to

consider evidence of I.W.’s eating disorder before denying coverage.

The district court refused to consider Plaintiffs’ position on grounds that they

did not present this issue in their letter requesting an external review. Plaintiffs now

challenge that determination on appeal, claiming they presented I.W.’s eating

disorder in their administrative appeals such that their argument was properly before

the district court. We take the district court’s view on this exhaustion issue.

In determining whether an administrator denied benefits arbitrarily and

capriciously, “district court[s] generally may consider only the arguments and

evidence before the administrator at the time it made [its] decision.” Sandoval, 967

F.2d at 380. The plaintiff in Sandoval had requested benefits in connection with a

physical impairment. See id. at 381. After the administrator completed its review,

the plaintiff filed an ERISA claim arguing that the administrator arbitrarily and

capriciously denied his request by failing to consider evidence of his psychological

46 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 47

disability. See id. We found that the medical reports before the administrator

“discussed only [the plaintiff’s] physical impairments.” Id. The reports “d[id] not

suggest that [the plaintiff] might be disabled due to psychological impairments,” and

when “request[ing] review of the initial decision to terminate benefits,” the plaintiff’s

attorney did not “suggest or make a claim for psychological disability.” Id. Because

“[a]n administrator’s decision is not arbitrary or capricious for failing to take into

account evidence not before it,” we held that “[t]he evidence of psychological

disability developed long after the review process d[id] not render [the

administrator’s] decision arbitrary or capricious.” Id.

In their letter requesting an external review of Health Net’s decision to deny

benefits, Plaintiffs argued that I.W.’s continued treatment at Uinta was medically

necessary due in part to her “history of . . . disordered eating habits.” R., Vol. 32, at

194. The letter also presented some evidence showing I.W. struggled with an eating

disorder during her time at Uinta.

But Plaintiffs never made the specific “argument” to the administrator that

they raised in district court. Sandoval, 967 F.2d at 381. That is, they never explicitly

argued that Health Net improperly denied benefits by failing to apply the InterQual

Criteria related to an eating disorder. To the contrary, Plaintiffs “specifically

request[ed]” that the reviewer “not utilize the InterQual Criteria” Health Net had

applied “in [its] previous reviews.” R., Vol. 32, at 168 (emphasis added). As such,

during their administrative appeal, Plaintiffs failed to raise the argument they have

faulted the administrator for declining to consider. The district court properly chose

47 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 48

not to consider that argument once Plaintiffs reached federal court. See Sandoval,

967 F.2d at 380–81; see also Blair v. Alcatel-Lucent Long-Term Disability Plan, 688

F. App’x 568, 574–75 (10th Cir. 2017) (concluding that “if [the plaintiff] had wanted

[her insurer] to consider [certain diagnostic criteria] . . . in more detail, she should

have said so (and provided them) in her in-house appeal”).

We recognize this case does not align precisely with the circumstances at issue

in Sandoval. Whereas in Sandoval the plaintiff did not raise his psychological

disability before the administrator at all, see 967 F.2d at 381, here, Plaintiffs raised

and presented evidence of I.W.’s eating disorder in their appeal to Health Net. They

simply did not make the more specific argument that Health Net failed to apply the

InterQual Criteria related to an eating disorder when assessing whether to cover

I.W.’s continued treatment at Uinta.

Nevertheless, Sandoval readily extends to the circumstances we face here. As

we explained in Sandoval, “[t]he district court’s responsibility” is to determine

“whether the administrator’s actions were arbitrary or capricious,” not whether the

plaintiff is “entitled to . . . benefits.” Id. Thus, Sandoval emphasized that district

courts must focus only on evidence and arguments plaintiffs “bring . . . to the

attention of the administrator.” Id.; cf. Murphy v. Deloitte & Touche Grp. Ins. Plan,

619 F.3d 1151, 1159 (10th Cir. 2010) (“Because the administrator must base its

decision on the materials included in the administrative record, a district court would

have no justification for concluding that an administrator abused its discretion by

failing to consider materials never submitted to it for inclusion in the administrative

48 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 49

record.”). Here, Plaintiffs generally raised I.W.’s eating disorder, but they never

presented an “argument[]” that Health Net improperly overlooked the InterQual

Criteria applicable to an eating disorder. Sandoval, 967 F.2d at 381. Because that

argument was not before the administrator, the district court properly declined to

consider it for the first time during Plaintiffs’ federal suit.7

Having determined that the district court properly declined to consider

Plaintiffs’ argument concerning I.W.’s eating disorder, we turn to what remains of

Plaintiffs’ ERISA claim. Putting I.W.’s eating disorder aside, Plaintiffs argue Health

Net arbitrarily and capriciously denied benefits even when focusing only on the

InterQual Criteria that are specific to a serious emotional disturbance. They make

two points. First, they argue Health Net incorrectly stated “I.W. ‘must’ demonstrate

one of seven cherry-picked symptoms” from the InterQual Criteria that apply to a

serious emotional disturbance, without addressing other criteria that could

demonstrate medical necessity. Aplts.’ Opening Br. at 51. Second, they contend

7 Plaintiffs argue the district court misunderstood their position pertaining to I.W.’s eating disorder as relying on “different InterQual criteria to support their argument that treatment at Uinta was medically necessary.” Aplts.’ Opening Br. at 42 (quoting R., Vol. 2, at 207) (emphasis added). However, read in context, the district court’s opinion clearly addressed Health Net’s position that Plaintiffs failed to raise the InterQual Criteria specific to an eating disorder during their administrative appeal. See Aplees.’ Resp. Br. at 19; see also R., Vol. 2, at 206 (addressing Health Net’s position “that Plaintiffs’ arguments ‘regarding InterQual’s eating disorder criteria and their alleged “truncat[ion]”—are newly minted for this litigation’” (quoting R., Vol. 2, at 134 (Defs.’ Reply in Supp. of Mot. for Summ. J., filed Apr. 16, 2021))). 49 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 50

Health Net denied benefits to I.W. based on “‘nothing more than conclusory

statements’ without any specific citation to facts in the record,” or any “reasoned

analysis” supporting the reviewers’ determinations. Id. (quoting McMillan v. AT&T

Umbrella Benefit Plan No. 1, 746 F. App’x 697, 706 (10th Cir. 2018)). Neither

contention has merit.

As to the first, it is clear to us that the reviewers summarized rather than

“cherry[ ]picked” from the InterQual criteria associated with a serious emotional

disturbance.8 Aplts.’ Opening Br. at 51. The denial letters stated that under the

InterQual Criteria, “there must be reports within the last week of physical

altercations, sexually inappropriate behavior, evidence of worsening depression,

runaway behavior, self-mutilation, or suicidal or homicidal ideation.” R., Vol. 3, at

107. All but one of these criteria map almost precisely onto symptoms or behaviors

the InterQual Criteria list in connection with a “[s]erious emotional disturbance.”

Compare id. (denial letter listing “physical altercations,” “sexually inappropriate

behavior,” “runaway behavior,” “self-mutilation,” and “suicidal or homicidal

ideation”), with id. at 39–40 (InterQual Criteria listing “[a]ggressive or assaultive

behavior,” “[s]exually inappropriate” behavior, running “[]away from [a] facility or

8 Plaintiffs did not raise an argument before the administrator that Health Net failed to apply the InterQual Criteria related to a serious emotional disturbance, either. But Health Net does not argue on appeal that Plaintiffs forfeited this argument, so we consider it on the merits. See Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1139 (10th Cir. 2010) (concluding a party had “forfeited any forfeiture argument [it] may have [had] on [a particular] issue” and then reaching “the merits”). 50 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 51

while on home pass,” “[n]onsuicidal self-injury,” “[s]uicidal ideation without intent,”

and “[h]omicidal ideation without intent”).

“[E]vidence of worsening depression,” id. at 144, is not one of the InterQual

Criteria but, in substance, it readily encompasses the InterQual Criteria; Health Net

merely did not explicitly identify those criteria. For example, Health Net did not

explicitly list “[d]epersonalization or derealization,” id. at 39, which are defined,

respectively, as “a change in a person’s perception or experience of his/her personal

identity” and “the perception or experience of the external world as ‘unreal,’” id. at

86. Likewise, Health Net did not explicitly list “[h]ypervigilence or paranoia,” id. at

39, which are defined, respectively, as “a heightened awareness and an increased

level of sensitivity to external stimuli,” id. at 89, and “extreme suspiciousness or the

false belief that one is being harassed, harmed, persecuted, or unfairly treated,” id. at

86. And Health Net did not explicitly list “[p]sychomotor agitation or retardation.”

Id. at 40. The former “refers to excessive motor activity in association with an inner

feeling of tension,” whereas the latter “refers to a generalized and excessive slowing

of movement and speech.” Id. at 89. These criteria—as well as “[a]ngry outbursts,”

becoming “[e]asily frustrated and impulsive,” and “[p]ersistent rule violations,” id. at

39, which Health Net also did not list explicitly—fit within the broader category of

evidence of worsening depression.

We have concluded that an administrator acts arbitrarily and capriciously when

it misapplies plan terms by adopting an unreasonable interpretation, see McGraw v.

Prudential Ins. Co. of Am., 137 F.3d 1253, 1263 (10th Cir. 1998), or applying the

51 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 52

terms inconsistently, see also Tracy O., 807 F. App’x at 854. But Plaintiffs do not

cite any authority preventing an administrator from outlining medical necessity

criteria in the manner Health Net adopted here.

This case is unlike Owings v. United of Omaha Life Insurance Company, 873

F.3d 1206 (10th Cir. 2017), where we concluded that an administrator acted

arbitrarily and capriciously by misapplying the plan’s criteria. See id. at 1213. In

Owings, the plan defined a disability as an inability to perform “at least one” material

job duty, but the administrator denied disability benefits on grounds that the

beneficiary failed to demonstrate that he could not perform “all” such duties. Id. By

contrast, Plaintiffs do not argue that Health Net misinterpreted the meaning of any

particular medical-necessity criterion applicable to a serious emotional disturbance.

They argue only that Health Net did not consider all such criteria when denying

benefits. But as we have explained, Health Net’s denial letters demonstrate that it

did in fact consider all criteria relevant to a serious emotional disturbance even if it

did not recite each criterion verbatim.

Plaintiffs also argue Health Net denied benefits arbitrarily and capriciously

because its denial letters “consist of ‘nothing more than conclusory statements’” and

did not cite “specific . . . facts in the record” supporting its decision. Aplts.’ Opening

Br. at 51 (quoting McMillan, 746 F. App’x at 706). We disagree.

Plaintiffs specifically contend that Health Net’s denial letters did not satisfy its

“obligations under ERISA and its regulations.” Id. at 50. As explained previously,

52 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 53

when notifying a beneficiary of an initial decision to deny coverage, ERISA requires

an administrator to set forth “the specific reasons for such denial.” 29 U.S.C.

§ 1133(1). Regulations specify further that when notifying a beneficiary of an

adverse determination based on medical necessity, an administrator typically must

provide “an explanation of the scientific or clinical judgment for the determination,

applying the terms of the plan to the claimant’s medical circumstances.” 29 C.F.R.

§ 2560.503-1(g)(1)(v)(B).

Plaintiffs have not demonstrated that Health Net’s initial denial letter conflicts

with these requirements. In Mary D. v. Anthem Blue Cross Blue Shield, 778 F. App’x

580 (10th Cir. 2019), a panel of this Court concluded that an administrator satisfied

its obligation to explain the reasons underlying a denial determination by “cit[ing]

lack of medical necessity as the specific reason for each denial,” “referenc[ing] the

residential-treatment criteria that governed the medical-necessity determination,” and

“provid[ing] clinical judgment supporting each denial.” Id. at 589. So too, here.

Health Net’s initial denial letter laid out the medical-necessity criteria that governed

Plaintiffs’ claim. See R., Vol. 3, at 107. It then applied “clinical judgment” in

explaining that, based on medical records provided to Health Net, I.W. was not

experiencing “any of [those] symptoms or behaviors.” Id. The letter also explained

that I.W.’s records showed she had “learned many healthy coping skills,” and was

“working on strategies to control her anxiety,” “opening up significantly in therapy,”

and “beginning to address core issues related to her poor self-image and thinking

errors.” Id. at 107–08. As such, the letter concluded I.W. did “not meet medical

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necessity criteria” for a residential treatment level of care, which it cited as the basis

for denying coverage. Id. at 108. Consistent with the panel’s reasoning in Mary D.,

we conclude Health Net adequately explained the basis for its initial denial.

When a beneficiary appeals an adverse determination, the administrator must

then conduct a “full and fair review . . . of the decision denying the claim.”

29 U.S.C. § 1133(2). To conduct a “full and fair review,” an administrator must

provide an opportunity for the claimant “to submit written comments, documents,

records, and other information relating to the claim,” all of which the review must

“take[] into account.” 29 C.F.R. § 2560.503-1(h)(2)(ii), (iv). And with respect to

group health plans, when reviewing adverse benefit determinations premised on lack

of medical necessity, the “named fiduciary” must also “consult with a health care

professional who has appropriate training and experience in the field of medicine

involved in the medical [necessity]” determination. Id. § 2560.503-1(h)(3)(iii).

Plaintiffs do not argue that Health Net’s appeal denials conflict with any

particular statutory or regulatory provision delineating the requirements of a “full and

fair review.” 29 U.S.C. § 1133(2). Instead, they rely on two decisions from this

Circuit concluding that an administrator failed to conduct a full and fair review by

failing to adequately explain the reasons underlying its determinations. Neither

decision leads us to the same conclusion here.

First, in a letter filed pursuant to Rule 28(j) of the Federal Rules of Appellate

Procedure, Plaintiffs invoke our recent decision in D.K. v. United Behavioral Health,

67 F.4th 1224 (10th Cir. 2023). See Aplts.’ Rule 28(j) Letter (dated May 16, 2023).

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The plaintiffs in D.K. challenged an insurer’s decision to deny coverage for care at a

residential treatment center on grounds that the insurer failed to provide a “full and

fair review,” 67 F.4th at 1236, making two specific arguments. First, they argued the

administrator failed to engage with opinions a treating physician had submitted on

the patient’s behalf. See id. Second, the plaintiffs argued the administrator failed to

adequately explain the reasons underlying its decision by making conclusory

statements without citing to the underlying medical records. See id. at 1242.

D.K. began by clarifying the scope of review that applies when determining

whether an administrator adequately addressed statements from treating physicians

and provided adequate reasoning in denying benefits. Because a “full and fair

review” consists of “a ‘meaningful dialogue’” between administrators and

beneficiaries, we concluded that our review “must focus on the content of the denial

letters” themselves. Id. (quoting Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 635

(10th Cir. 2003)). Other materials that never reach the beneficiary, such as “plan

administrators’ notes,” fall outside the scope of our review. Id.

Focusing only on the insurer’s denial letters, D.K. first concluded the

administrator failed to adequately engage with opinions from the beneficiary’s

treating physicians, all of whom recommended continued care at a residential

treatment center. See id. at 1237. Though ERISA does not require outright deference

to these opinions, we determined that the administrator acted arbitrarily and

capriciously by declining to follow them without any explanation. See id.

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We also concluded the administrator did not adequately explain the reasons

underlying its determination because its denial letters rested on “conclusory

reasoning” and did not “cite any facts in the medical record.” Id. at 1242. As we

explained, the letters did not refer to the “specific . . . provision[s]” on which the

administrator based its denial or provide “the specific reason” underlying its

decision. Id. at 1243. The letters stated that the beneficiary’s “diagnosis and

medications did not change extensively from admission . . . to the date of the

review,” that “the record lacked evidence of self-injurious behavior,” and that the

beneficiary had “treatment resistant behaviors” and “continued to act out

behaviorally.” Id. at 1242. But “[n]one of these statements were supported by

citation to the record or discussed [the beneficiary’s] extensive medical history.” Id.

And they could have supported a contrary conclusion that the beneficiary did in fact

require “ongoing treatment,” but the administrator “simply concluded that they

indicated [the beneficiary] could be treated at a lower level of care.” Id. We

therefore found the denial letters “lacked ‘any analysis, let alone a reasoned

analysis,’” and were therefore “arbitrary.” Id. (quoting McMillan, 746 F. App’x at

706).

We decline to extend D.K. to the circumstances presented in this case. Unlike

in D.K., Plaintiffs do not argue on appeal that Health Net failed to engage with

opinions from I.W.’s treating physicians. They argued in the district court that

Health Net’s denials “did not acknowledge” letters from I.W.’s treatment team that

Plaintiffs submitted as part of their administrative appeal. R., Vol. 2, at 37. But the

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district court rejected their argument, see id. at 207, and Plaintiffs do not renew it on

appeal.

Moreover, Health Net’s letters do not suffer from the same deficiencies that

amounted to unreasoned denials in D.K. Health Net’s letters cited to the specific

diagnostic criteria—the InterQual Criteria—that it considers when determining

whether to continue coverage for care at a residential treatment center. E.g., R., Vol.

3, at 107; id., Vol. 32, at 197; id. at 6. “Based on the clinical information provided to

[Health Net],” it concluded I.W. had not exhibited any of the symptoms or behaviors

within the relevant timeframe that are required to qualify for continued coverage

under the InterQual Criteria. Id., Vol. 3, at 107; accord id., Vol. 32, at 197; id. at 6.

Thus, Health Net explained the basis for its decision to deny coverage in a reasoned

manner. The absence of symptoms or behaviors required to establish medical

necessity under the InterQual Criteria necessarily implies that I.W. no longer

qualified for continued coverage under Health Net’s standard. And because Health

Net determined I.W. did not satisfy its criteria for continued coverage, unlike D.K.,

its analysis “could [not] have also supported a finding” that “ongoing treatment” was

medically necessary under those same criteria. 67 F.4th at 1242.

Although Health Net did not provide extensive citations to I.W.’s medical

records, its findings derived primarily from the absence of record evidence

supporting continued coverage. Plaintiffs fail to explain what evidence Health Net

could have cited to support its conclusion that I.W. did not exhibit the requisite

symptoms or behaviors. By contrast, the statements we found unsubstantiated in

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D.K. were primarily ones the administrator could have supported with citations to the

beneficiary’s medical records. For example, we focused on statements that the

beneficiary’s “diagnosis and medications” remained constant during her time at the

residential treatment center and that the beneficiary had “treatment resistant

behaviors” and “continued to act out behaviorally.” Id. These are statements that, if

true, presumably derive from medical records the plaintiffs submitted during their

administrative appeal and to which the administrator could have cited directly. For

these reasons, D.K. is inapposite and does not lead us to conclude that Health Net

denied benefits arbitrarily and capriciously.

In their appellate briefing, Plaintiffs also rely on one of our unpublished

decisions, McMillan, which—similar to D.K.—concluded that an administrator

denied benefits arbitrarily and capriciously because its denial letters did not contain

“any analysis, let alone” one that was “reasoned.” 746 F. App’x at 706. The plaintiff

in McMillan worked in a position that required substantial travel, but he suffered

from ailments that limited his physical mobility. See id. at 699, 701. He applied for

disability benefits through an employer-sponsored plan under which an “insured was

considered totally disabled ‘when, [due to injury or illness], [he was] unable to

perform all of the essential functions of [his] job.’” Id. at 698 (second and third

alterations in original) (emphasis omitted). His plan administrator denied benefits

through several rounds of appeals, and we concluded the denials were arbitrary and

capricious. During initial reviews, the reviewers repeatedly failed to acknowledge

that the plaintiff’s job duties involved travel. See id. at 699–702. Although later

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reviews eventually acknowledged the travel requirements, they “contain[ed] nothing

more than conclusory statements that [the plaintiff] could travel without any

discussion whatsoever.” Id. at 706. We therefore concluded that the denials were

“arbitrary and capricious.” Id.

We do not see Health Net’s denials in the same light. In McMillan, the

reviewers repeatedly failed to acknowledge a critical factor relevant to its coverage

determinations, only accounting for the plaintiff’s duty to travel—and the extent of

travel required—during the final round of administrative appeals. See id. at 699–702,

704. Even during the final round, the reviewer failed to explain how the plaintiff

could fulfill his travel obligations in light of his physical ailments. See id. at 704–05.

No similar shortcomings mark Health Net’s denial letters. The letters identified the

InterQual Criteria applicable to a serious emotional disturbance, which require

reports of certain symptoms or behaviors “within the . . . week” immediately

preceding the benefit determination. R., Vol. 3, at 107; accord id., Vol. 32, at 197;

id. at 6. And the letters explained that, based on her medical records, I.W. had not

exhibited any such symptoms or behaviors within the relevant period. See R., Vol. 3,

at 107; accord id., Vol. 32, at 197–98; id. at 6. Unlike the administrator in McMillan,

Health Net did not ignore a key condition governing its coverage determinations.

Nor did Health Net rely on unsubstantiated conclusions about I.W.’s medical

59 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 60

condition. We therefore decline to extend McMillan to the circumstances presented

here.9

***

Accordingly, we hold that Health Net did not deny benefits arbitrarily and

capriciously and that the district court did not err in granting summary judgment to

Health Net on Plaintiffs’ ERISA claim.

9 Under our precedents, a “lack of substantial evidence” is one factor that may indicate an arbitrary and capricious benefits determination, Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1282 (10th Cir. 2002), but Plaintiffs never explicitly claim a lack of substantial evidence on appeal. They cite to evidence allegedly showing I.W. satisfied certain InterQual Criteria related to an eating disorder, see Aplts.’ Opening Br. at 47–49, but we have concluded Plaintiffs failed to exhaust their argument concerning I.W.’s eating disorder during the administrative appeal. In any event, none of the evidence they present arose during the week prior to Health Net’s coverage determination, when such symptoms or behaviors must arise in order to satisfy the InterQual Criteria; to the contrary, all the evidence they cite arose after February 23, 2017. See id. Plaintiffs also state that I.W. displayed symptoms or behaviors that could satisfy the InterQual Criteria specific to a serious emotional disturbance. See id. at 51 (claiming I.W.’s records showed she “continued to struggle with depression, anxiety, . . . inappropriate sexual relationships, ‘romanticizing’ getting high, and self-esteem long into her treatment”). But they do so in a single sentence without any citations to the record, thereby waiving through inadequate briefing any argument that Health Net’s determination pertaining to a serious emotional disturbance conflicted with I.W.’s medical records. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant’s opening brief.”); FED. R. APP. P. 28(a)(8)(A) (providing that appellants “must” support their “argument[s]” with “citations to the authorities and parts of the record on which the appellant relies”). Even assuming they preserved the argument concerning an alleged lack of substantial evidence, we would find it inadequate because they do not demonstrate that any such symptoms or behaviors arose during the week before Health Net denied coverage. 60 Appellate Case: 21-4110 Document: 010110956505 Date Filed: 11/21/2023 Page: 61

III

We conclude by resolving three outstanding motions to seal. Plaintiffs filed

two motions, one seeking to seal all forty-one volumes of the appendix and the other

requesting to seal Attachment D of their Opening Brief. Volumes 1 and 2 of the

Appendix consist of the filings in the district court, and Volumes 3 through 41

contain the prelitigation record that was filed under seal in the district court.

Attachment D consists of the InterQual Criteria. The Clerk of Court thereafter

ordered the parties to file a joint supplement identifying the documents that required

sealing and an accompanying explanation, and the parties filed a joint supplement as

directed. In addition, Health Net moved to file its Response Brief in redacted form

and to file the unredacted version under seal.

“A party seeking to file court records under seal must overcome a

presumption, long supported by courts, that the public has a common-law right of

access to judicial records.” Eugene S., 663 F.3d at 1135. “To do so, ‘the parties

must articulate a real and substantial interest that justifies depriving the public of

access to the records that inform our decision-making process.’” Id. at 1135–36

(quoting Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir. 2011)). Applying these

principles, we grant all three motions.

First, we grant the motion to file Attachment D under seal. We have held in

certain circumstances that the interest in protecting “confidential documents . . .

outweighs the public’s right of access.” Suture Express, Inc. v. Owens & Minor

Distrib., Inc., 851 F.3d 1029, 1047 (10th Cir. 2017). The parties agree that the

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InterQual Criteria contained in Attachment D “are a proprietary product of Change

Healthcare (formerly McKesson Health Solutions), and Appellees are directed to take

steps to protect the confidentiality of these guidelines as part of their agreement to

use them.” Joint Supp. to Aplts.’ Mots. for Leave to File Vols. 1 Through 41 of

Aplts.’ App. Under Seal at 2. As such, both parties agree Attachment D should

remain under seal as a confidential document. We concur and grant the motion to

seal Attachment D.

Second, we grant the parties’ joint request to file under seal certain documents

contained in Volumes 1 and 2 of the Appendix. Within Volume 1, the parties request

to file under seal “Defendants’ unredacted Motion for Summary Judgment and its

Exhibits 1 and 2.” Id. at 3. And in Volume 2, the parties seek to file under seal

unredacted versions of:

 Defendants’ opposition to Plaintiffs’ motion for summary judgment and accompanying Exhibit 1 and affidavit;

 Defendants’ reply in support of their motion for summary judgment; and

 The transcript of the summary judgment hearing, dated June 24, 2021.

Id. at 4. The parties agree that all these documents contain “non-public, protected

health information drawn from Appellants’ medical records.” Id. at 3; see also id. at

4. We have sealed “medical records and other documents containing personal health

information and other confidential information about the parties.” Eugene S., 663

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F.3d at 1135. Consistent with Eugene S., we grant the motion to seal the documents

specified in Volumes 1 and 2.

Third, we grant the motion to seal Volumes 3 through 41 of the Appendix in

their entirety. These volumes contain the prelitigation record in the district court,

which consists largely of I.W.’s medical records, including her name, birthdate, and

social security number, as well as sensitive information concerning medical

incidents. It also contains other private information about Plaintiffs, such as account

numbers and billing information. And it contains confidential information associated

with Health Net, such as insurance contracts and the InterQual Criteria. We have

granted motions to seal similar private, sensitive information, even in quantities

approaching the number of volumes at issue here. See, e.g., Suture Express, Inc., 851

F.3d at 1046–47 (granting motions to seal more than twenty volumes of a joint

appendix because they “contain[ed] confidential documents, financial information,

and contracts, the confidential nature of which outweighs the public’s right of

access”); Eugene S., 663 F.3d at 1135–36 (sealing record because it contained

“medical records and other documents containing personal health information and

other confidential information about the parties”). Applying these precedents, we

grant the motion to seal Volumes 3 through 41 of the Appendix.

Finally, we grant Health Net’s request to file the unredacted version of its

Response Brief under seal and to file the unsealed brief in redacted form. Health

Net’s redactions cover information that falls in the two categories discussed supra—

namely, sensitive medical information or confidential information pertaining to the

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InterQual Criteria. For the same reasons we authorize the parties to file Attachment

D and the Appendix under seal, Health Net may file its Response brief in redacted

form and the unredacted brief under seal.

IV

For the foregoing reasons, we rule as follows: we AFFIRM the district court’s

decision granting summary judgment to Health Net on Plaintiffs’ ERISA claim; we

REVERSE the district court’s judgment finding Plaintiffs failed to state a claim

under MHPAEA; and we REMAND to the district court for proceedings consistent

with this opinion.