James E. Cecchi 

Lindsey H. Taylor 

CARELLA, BYRNE, CECCHI, 

OLSTEIN, BRODY & AGNELLO 

5 Becker Farm Road 

Roseland, New Jersey 07068 

(973) 994-1700 

D. Brian Hufford 

Robert J. Axelrod 

Murielle Steven Walsh 

Susan J. Weiswasser 

Anthony F. Maul 

POMERANTZ HAUDEK 

 GROSSMAN & GROSS LLP 

100 Park Avenue 

New York, New York 10017 

(212) 661-1100 

Vincent N. Buttaci 

John W. Leardi 

BUTTACI & LEARDI, LLC 

103 Carnegie Center, Suite 101 

Princeton, New Jersey 08540 

(609)799-5150 

Counsel for Plaintiffs and the Putative Classes 

(Additional Counsel on Signature Page) 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

PREMIER HEALTH CENTER, P.C., JUDSON G. 

SPRANDEL, II, D.C., BRIAN S. HICKS, D.C., TRI3 

ENTERPRISES, LLC, BEVERLY HILLS 

SURGICAL CENTER, JEREMY RODGERS, D.C., 

and AMY O’DONNELL, D.C., on their own behalf 

and on behalf of all others similarly situated, and 

CONGRESS OF CHIROPRACTIC STATE 

ASSOCIATIONS, the AMERICAN 

CHIROPRACTIC ASSOCIATION, the OHIO 

STATE CHIROPRACTIC ASSOCIATION and THE 

MISSOURI STATE CHIROPRACTIC 

ASSOCIATION, in a representational capacity on 

behalf of their members, 

 Plaintiffs, 

 v. 

UNITEDHEALTH GROUP, 

UNITEDHEALTHCARE SERVICES, INC., 

OPTUMHEALTH, INC., HEALTH NET OF THE 

NORTHEAST, INC., and HEALTH NET OF NEW 

YORK, INC., 

 Defendants. 

Civil Action No. 11-425 (FSH) (PS) 

FIRST AMENDED 

CLASS ACTION COMPLAINT

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Plaintiffs Premier Health Center P.C. (“Premier Health”), Judson G. Sprandel, II, D.C. 

(“Sprandel”), Brian S. Hicks, D.C. (“Hicks”), Tri3 Enterprises, LLC (“Tri3”), Beverly Hills 

Surgical Center (“BHSC”), Jeremy Rodgers, D.C., A.T.C. (“Rodgers”), Amy O’Donnell 

(“O’Donnell”), Congress of Chiropractic State Associations (“COCSA”), the American 

Chiropractic Association (“ACA”), the Ohio State Chiropractic Association (“OSCA”) and the 

Missouri State Chiropractic Association (“MSCA”), to the best of their knowledge, information 

and belief, formed after an inquiry reasonable under the circumstances, for their First Amended 

Class Action Complaint (hereinafter “Complaint”), assert the following against Defendants 

UnitedHealth Group, UnitedHealthCare Services, Inc., OptumHealth, Inc., Health Net of the 

Northeast, Inc., and Health Net of New York, Inc. (collectively, “Defendants” or “United”). 

INTRODUCTION

1. Plaintiffs bring this action against Defendants under the Employee Retirement 

Income Security Act of 1974, as amended, 29 U.S.C. § 1001, et seq. (“ERISA”). 

2. Plaintiffs Premier Health, Sprandel, Hicks, Tri3, BHCS, Rodgers and O’Donnell 

(collectively, the “Individual Plaintiffs”) and the members of the putative Classes, as defined 

below, are health care providers or facilities who have provided health care service or supplies to 

members of health care plans insured or administered by United (“United Insureds”), and who 

have been paid by United for providing such services or supplies through the issuance of benefits 

under the terms and conditions of the United Insureds’ health care plans (“United Plans”). 

Plaintiffs COCSA, ACA, OSCA and MSCA (collectively, the “Association Plaintiffs”) are 

membership organizations that serve the interests of chiropractic physicians. They bring this 

action in a representational capacity on behalf of their members. 

3. As alleged herein, United engaged in post-payment audits of the benefit payments 

made to the Individual Plaintiffs and other members of the Class and subsequently determined 

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that it had erroneously made overpayments that it then demanded be repaid. It subsequently took 

steps to coerce certain of the Individual Plaintiffs and other Class members to return the alleged 

overpayments, including by withholding payments from new and unrelated services and applying 

them to the alleged debt, or by filing invalid lawsuits seeking to compel repayment. 

4. Many of the United Plans at issue are provided through private employers. As a 

result, they are governed by ERISA, which establishes strict rules and procedures with which 

United or other entities that administer ERISA plans must comply. Among other things, ERISA 

sets forth specific steps that must be followed when an insurer such as United makes an “adverse 

benefit determination” by denying or reducing benefits, including by providing a “full and fair 

review” of the decision. This requirement is designed to establish an administrative record 

relating to any decision denying or reducing benefits so that it can be effectively challenged in 

court, with the court having a valid basis for reviewing the decision. By making a retroactive 

determination that a previously paid benefit was, in fact, paid improperly, an insurer makes an 

adverse benefit determination under ERISA, and any effort to recover previously paid benefits 

issued under ERISA plans arises under ERISA and is limited in scope to such remedies that are 

permitted under ERISA. As detailed herein, United has violated ERISA by its retroactive adverse 

benefit determinations without complying with ERISA requirements. 

5. In addition to its improper recoupment activities, United, through its wholly 

owned subsidiary OptumHealth, Inc. (“Optum”), also engaged in improper actions, including 

denials of benefits, by application of flawed, manipulated and undisclosed policies designed to 

discourage and limit the provision of health care services, as described herein. In so doing, 

United has similarly violated ERISA. 

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THE PARTIES

 Plaintiffs

6. Plaintiff Premier Health is a licensed professional corporation located at 385 

Prospect Avenue, Hackensack, NJ 07601. It is wholly owned by Phillip Kim, D.C. (“Kim”). 

Premier Health is a health care facility that provides health care services to various patients, 

many of whom are United Insureds. As an out-of-network (“ONET”) health care provider, 

Premier Health never signed an agreement with Defendants to accept discounted rates in 

exchange for having United Insureds directed to it. Rather, it provides services to patients who 

choose to come to it, and then, pursuant to assignments that are signed by its patients, bills to and 

receives benefit payments directly from United on behalf of the United Insured patients. 

7. The standard “Assignment of Benefits Form” that Premier Health has its patients 

sign states: 

I hereby instruct and direct [United or Health Net] Insurance Company to pay by 

check made out and mailed out to: Premier Health Center, P.C., 385 Prospect 

Ave., 1Fl., Hackensack, NJ 07601, Or 

If my current policy prohibits direct payment to doctor, I hereby also instruct and 

direct you to make out the check to me and mail it as follows: [to same address] 

For the professional or expense benefits allowable, and otherwise payable to me 

under my current insurance policy as payment toward the total charges for the 

professional services rendered. THIS IS A DIRECT ASSIGNMENT OF MY 

RIGHTS AND BENEFITS UNDER THIS POLICY. This payment will not 

exceed my indebtedness to the above-mentioned assignee, and I have agreed to 

pay, in a current manner, any balance of said professional service charges over 

and above this insurance payment. 

Pursuant to this assignment, Plaintiff has standing to pursue claims under ERISA. 

8. Dr. Sprandel is a licensed Doctor of Chiropractic who practices at 1412 Cleveland 

Avenue, N.W., Canton, OH 44703, and provides services to numerous United Insureds. A 

member of both ACA and OSCA, Dr. Sprandel is an INET provider with United, which means 

that he has agreed to accepted discounted rates from United for providing Covered Services to 

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United Insureds (as defined in the United Plans). He has become an in-network provider in order 

to gain better access to United Insureds as patients. As a matter of course, Dr. Sprandel has his 

patients execute written assignments in which they agree that Dr. Sprandel may bill and receive 

payments directly from United, thereby giving him standing to pursue ERISA claims. Further the 

patients affirm that they remain financially liable for any portion of the bill that is deemed not to 

be medically necessary or otherwise not a Covered Service. 

9. Dr. Hicks is a licensed Doctor of Chiropractic who practices at 7100 E. 151st

Street, Bixby, OK 74008, and provides services to numerous United Insureds. Dr. Hicks is an innetwork provider with Optum’s ACN Network. “ACN” stands for “American Chiropractic 

Network,” the name formally used by Optum. Dr. Hicks’ patients execute written assignments, 

as a matter of course, in which they agree that he may bill and receive payments directly from 

United. Therefore Dr. Hicks has standing to pursue ERISA claims. Further, Dr. Hicks’ patients 

affirm that they remain financially liable for any portion of the bill that is deemed not to be 

medically necessary or otherwise not a Covered Service. 

10. Plaintiff Tri3, headquartered at 950 N Rand Road, Suite 121, Wauconda, IL 

60084, is a health care facility which provides durable medical equipment (“DME”) through its 

wholly owned and controlled subsidiaries, Wabash Medical Company, LLC (“Wabash”), located 

at 7750 Zionsville Road, Suite 850, Indianapolis, IN 48268, and Orthoflex Inc., d/b/a Integrated 

Orthopedics (“Orthoflex”), located at 3717 N. Ravenswood Ave., Suite 217, Chicago, IL 60613. 

Operating through Wabash and Orthoflex, Tri3 has provided durable medical equipment to many 

United Insureds pursuant to prescriptions from the Insureds’ health care providers. Wabash 

signed a Facility Participation Agreement with United as of August 1, 2009, but an error was 

made by United in implementing the agreement. United subsequently informed Wabash that it 

needed to fill out a new Facility Agreement, which United sent to Wabash on March 4, 2010. 

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Wabash, however, never completed or returned this revised Agreement and informed United that 

it no longer wished to be in-network (“INET”) with United. Wabash was therefore only INET 

with United, if at all, from August 1, 2009 through March 4, 2010. Both before and after these 

dates, Wabash was an ONET facility with respect to United. At all times, Orthoflex has been an 

ONET provider with United. With regard to Wabash, Tri3 is only asserting claims for 

recoupments that were taken for the time in which Wabash was an ONET provider. 

11. As a health care facility, Tri3, through Wabash and Orthoflex, has its patients 

execute assignments, as a matter of course, which generally state: 

Assignment of Insurance Benefits: I certify that the information given by me is 

correct. I request that payment of authorized benefits be made on my behalf. I 

assign the benefits payable for covered services rendered by Tri3 to Tri3 and 

authorize Tri3 to submit claim to . . . commercial insurance carriers for payment. I 

authorize payment of my insurance benefits directly to Tri3, which payment will 

not exceed the balance due on my account. I hereby guarantee payment to Tri3 of 

any and all charges not covered by this assignment, and waive any and all notices 

and demands in the event of non-payment thereunder. . . . By signing I hereby 

appoint Tri3 Enterprises, LLC or affiliates to act on my behalf in connection with 

any claim for coverage of benefits under my health plan. This includes appealing 

a claim for benefits that has been denied (either in whole or in part). This 

appointment authorizes my representative to receive any and all information 

provided to me, and to act for me (or my covered spouse or dependent child), if 

named above as patient. This appointment also authorizes my representative to 

provide any requested information to the plan that relates to any claim [for] 

coverage or benefits under the plan. 

This assignment establishes Tri3’s legal standing to pursue the ERISA claims asserted herein. 

12. Plaintiff BHSC is a licensed surgical center with offices at 250 S. La Cienega 

Boulevard Suite 100, Beverly Hills, CA 90211. It provides health care services as an ONET 

provider to numerous United Insureds. As a matter of course, BHSC has its patients execute 

written assignments in which they agree that it may bill and receive payments directly from 

United. Thus, BHSC has standing to pursue ERISA claims. Further, BHSC’s patients agree that 

they remain financially liable for any portion of the bill that is deemed not to be medically 

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necessary or otherwise not a Covered Service. 

13. Dr. Rodgers is a licensed Chiropractic Radiologist and board-certified athletic 

trainer who practices at 333 South Boulder Road, Ste. 2, Louisville, CO 80027, and provides 

services to numerous United Insureds. Dr. Rodgers was previously in-network with United 

through Optum’s ACN network. In 2005, he terminated his participation in ACN's network after 

ACN requested that he submit to a “Performance Improvement Agreement” that was invalid and 

solely designed to pressure him improperly to reduce services to his patients. Dr. Rodgers has his 

patients execute written assignments, as a matter of course, in which they agree that he may bill 

and receive payments directly from United. Therefore, Dr. Rodgers has standing to pursue 

ERISA claims. Further Dr. Rodgers’s patients affirm that they remain financially liable for any 

portion of the bill that is deemed not to be medically necessary or otherwise not a Covered 

Service. 

14. Dr. O’Donnell is a licensed Chiropractic Physician who works as an Integrative 

Chiropractor with Greenwich Hospital’s Center for Integrative Medicine, located at 35 River 

Road, Cos Cob, CT 06807, and has provided services to numerous United Insureds. Dr. 

O’Donnell was previously in-network with United through Optum’s ACN network. During her 

time as an INET provider, from approximately 2002 through 2007, she was continually 

pressured and harassed by United employees to alter her practice and reduce the level of care she 

provided to her patients, before she finally elected to terminate her participation in or around 

2007. As a matter of course, Dr. O’Donnell has her patients execute written assignments in 

which they agree that he may bill and receive payments directly from United. As a result, Dr. 

O’Donnell has standing to pursue ERISA claims, and, further, she has her patients affirm that 

they remain financially liable for any portion of the bill that is deemed not to be medically 

necessary or otherwise not a Covered Service. 

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15. COCSA was formed in the late 1960’s and is a not-for-profit organization 

consisting of state chiropractic associations in all 50 states, with its headquarters based in 

Wichita, Kansas. The mission of the Congress is to provide an open, nonpartisan forum for the 

promotion and advancement of the chiropractic profession through service to member state 

associations. The purpose of COCSA, as stated in its Rules & Regulations, is (1) to form a 

coalition of official chiropractic state organizations; (2) to serve as a forum or clearing house to 

help solve mutual state problems on a non-partisan basis; (3) to cooperate with other 

organizations in the advancement of natural health and Chiropractic; (4) to assure that 

Chiropractic attains its rightful place in healing arts; and (5) to initiate, encourage and support 

programs and projects for the advancement of the Chiropractic profession. 

16. ACA, based in Arlington, Virginia, is the largest professional association in the 

United States representing Doctors of Chiropractic, with more than 15,000 members. The ACA 

promotes the highest standards of ethics and patient care, contributing to the health and wellbeing of millions of chiropractic patients. On behalf of its members, ACA lobbies for prochiropractic legislation and policies, promotes a positive public image of chiropractic, supports 

research, provides professional and educational opportunities for Doctors of Chiropractic, and 

offers leadership for the advancement of the profession. The ACA’s formal Mission Statement is 

as follows: 

The ACA is a professional organization representing Doctors of Chiropractic. Its 

mission is to preserve, protect, improve and promote the chiropractic profession 

and the services of Doctors of Chiropractic for the benefit of patients they serve. 

The purpose of the ACA is to provide leadership in health care and a positive 

vision for the chiropractic profession and its natural approach to health and 

wellness. On behalf of the chiropractic profession, we accomplish our mission 

and purpose by affecting public policy and legislation, by promoting high 

standards in professional ethics and quality of treatment and by carrying out a 

dynamic strategic plan to help ensure the professional grown and success of 

Doctors of Chiropractic. 

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17. The OSCA is a chiropractic association based in Columbus, Ohio, and is a 

member of COCSA. Dr. Sprandel is a member of the OSCA and its former President. As of the 

end of 2010, the OSCA’s membership consisted of more than 800 chiropractic physicians 

residing and practicing in the State of Ohio. The OSCA’s declared mission is to “empower Ohio 

chiropractic physicians as the preferred choice for health care needs, specializing in spinal care, 

neuromuscular care and/or nervous system function; and [to educate] the general public and 

policymakers on the importance of chiropractic in reaching one’s fully human potential.” 

Further, the OSCA’s Mission Statement is as follows: 

Our mission is to promote the science, philosophy and art of the chiropractic 

profession by advocating the highest standard of ethics in practice; by working 

united to advance the profession; by developing close cooperation among the 

doctors within the association for the welfare of all Doctors of Chiropractic and 

the public we serve; and by promoting desirable relationships with other entities 

for the benefit of the chiropractic profession. 

18. The MSCA is a chiropractic association based in Jefferson City, Missouri. As of 

the end of 2010, the MSCA’s membership consisted of more than 765 chiropractic physicians 

residing and practicing in the State of Missouri. The MSCA’s declared mission statement is as 

follows: 

“Our mission is to promote chiropractic to the public, preserve, protect and 

promote the philosophy, science and art of chiropractic for the purpose of 

improving the health and wellbeing of Missouri citizens. The Missouri State 

Chiropractic Association is dedicated to promoting chiropractic through public 

education, legislative efforts and securing equality in the health care arena on 

behalf of all Missouri residents.” 

The MSCA brings this action in an associational capacity on behalf of its members, many of 

whom have suffered improper audits, repayment demands and recoupments from Defendants. 

19. The Association Plaintiffs bring this action in an associational capacity on behalf 

of their members to obtain appropriate injunctive relief from improper audits, repayment 

demands and recoupments of benefit payments from Defendants. The Association Plaintiffs 

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further seek relief on behalf of their members for various other practices employed by United 

and Optum designed to improperly limit benefits paid for patient treatment. These practices 

include tiering providers based on simplistic statistical parameters, denying treatment plans 

without regard to patients’ medical needs, and threatening providers with loss of network 

participation unless they improperly limit their care to patients, 

20. Pursuant to associational standing, the Association Plaintiffs have standing to 

pursue the ERISA claims of the chiropractic members they represent. 

Defendants

21. Defendant UnitedHealth Group, headquartered at 9900 Bren Road East 

Minnetonka, MN 55343, is a corporation organized and existing under and pursuant to the laws 

of Minnesota which issues and administers health care plans around the country through its 

various wholly owned and controlled subsidiaries, including Defendant UnitedHealthCare 

Services, Inc., as well as other wholly-owned and controlled subsidiaries, including Oxford 

Health Plans. Defendant Optum is one of UnitedHealth Group’s wholly-owned and controlled 

subsidiaries, headquartered at 6300 Olson Memorial Highway, Golden Valley, MN 55427. 

22. Defendant Health Net of the Northeast, Inc., headquartered at 1 Far Mill Crossing, 

Shelton, CT 06484, provides administrative services to a number of subsidiaries of UnitedHealth 

Group, including Defendant Health Net of New York, Inc., Health Net Insurance of New York, 

Inc.; Health Net of New Jersey, Inc. and Health Net of Connecticut, Inc. Defendant Health Net 

of New York, Inc. is also based in Shelton, Connecticut. On December 11, 2009, 

UnitedHealthcare and Health Net, Inc. announced that UnitedHealthcare had completed the 

acquisition of Health Net of the Northeast’s licensed subsidiaries and obtained the rights to 

renew Health Net’s membership in Connecticut, New York and New Jersey. Defendants Health 

Net of the Northeast, Inc. and Health Net of New York, Inc. are collectively referred to herein as 

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the “Health Net Defendants.” 

23. United (including Optum and the Health Net Defendants, acting in their own 

names) engaged in numerous post-payment audits and have improperly recouped or otherwise 

sought to recover payments from, or improperly denied coverage for services provided by, many 

Providers, including the Individual Plaintiffs, in violation of ERISA. Moreover, United and 

OptumHealth have imposed various policies in violation of ERISA designed to reduce or deny 

coverage for health care services, as detailed herein. 

24. Due to the manner in which Defendants function with respect to their United 

Plans, they are all functional ERISA fiduciaries and, as such, must comply with fiduciary 

standards. Moreover, in making coverage determinations relating to their United Insureds, 

Defendants must comply with the terms and conditions of the applicable health care plans and 

otherwise must comply with ERISA and its underlying regulations. 

JURISDICTION AND VENUE

25. Defendants’ actions in administering employer-sponsored health care plans, 

including determining reimbursements for Providers who supply health care services to United 

Insureds pursuant to the terms and conditions of the health care plans, are governed by ERISA, 

29 U.S.C. § 1001, et seq. Plaintiffs assert subject matter jurisdiction under 28 U.S.C. § 1331 

(federal question jurisdiction), 29 U.S.C. § 1132(e) (ERISA). 

26. Venue is appropriate in this District for Plaintiffs’ claims under 28 U.S.C. § 1391 

and 29 U.S.C. § 1132(e)(2) because Plaintiff Premier Health resides and operates here, material 

portions of the improper repayment demands that are the subject of this lawsuit occurred here, 

and Defendants are authorized to do business here, either directly or through wholly owned and 

controlled subsidiaries. 

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THE EXPERIENCE OF PLAINTIFF PREMIER HEALTH 

 __ WITH UNITED HEALTH PLANS___________

Health Net

27. On or about January 6, 2010, Plaintiff Premier Health received a series of letters 

from Health Net, through Health Net of New York, Inc. Recovery Unit, notifying Premier Health 

of a purported overpayment of previously paid benefits. The letter stated: 

We recently determined that the claim referenced above was overpaid by [a 

specified amount which differed for each letter] for the reason listed at the bottom 

of this notice. Additionally, there may be interest if indicated above. 

You may elect to refund the amount paid incorrectly. If we do not receive your 

payment within 30 calendar days from the date of this letter, we will deduct the 

overpayment amount from future claim payments. 

Please send a refund check for [the specified amount] within 30 calendar days to 

the address listed below. A copy of this letter must accompany your payment. We 

have included a postage paid envelope for your convenience. . . . 

If you believe the overpayment refund request is incorrect, you have 30 calendar 

days from the date of this letter to send written documentation of your dispute to: 

Provider Service Unit, 1 Far Mill Crossing, P.O. Box 904, Shelton, CT 06484 or 

call . . . 

28. At the bottom of the letter, Health Net listed the following as “Reasons” for the 

repayment demand: “Adjustment made to prior payment; New information received by plan, 

member not eligible on the date of service.” In total, Health Net demanded that Premier Health 

repay approximately $4,500 for services provided to a United Insured primarily in June 2009. 

29. On January 25, 2010, through its agent, Precision Billing & Consulting Services, 

LLC (“Precision Billing”), Premier Health submitted a first level appeal to Health Net’s 

repayment demand in which it specifically stated: “I am contesting this [repayment] request and 

the money may not be deducted without a hearing.” The letter then detailed the information that 

was necessary to allow the appeal to proceed: 

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I must respectfully decline your request until the following documentation has 

been presented to establish your entitlement to the refund. Our records indicate, 

and your payment confirms, that the patient was insured under your health care 

plan and covered for services rendered at the time of treatment. 

Therefore, I must have documentation to support your right to a reversal of 

payment. I will carefully review these documents to determine the 

appropriateness of this request. I will require: 

1. A copy of the claim. 

2. A copy of the canceled check. 

3. A clearly stated reason for this reversal of payment. 

4. An explanation as to why the claim was originally considered 

acceptable and is now denied. 

5. The statute of limitations in regard to the refunds. 

6. A copy of the appropriate section of your contract stating your 

entitlement of this action. 

I am entitled to this information in a timely manner. However, your demand of 

payment within 45 days is unrealistic. You will need time to gather the 

information and I will equally need time to review it. Therefore your threat of 

deducting the monies from my future claim payments is inappropriate, 

unprofessional and illegal! 

Upon arrival of the fore-mentioned documentation I will carefully review it and 

determine if I feel a refund is appropriate. 

Be advised that I DO NOT authorize an extraction from future payments to cover 

this. 

30. In the letter, Premier Health then cited several court decisions in which it was 

established that the risk of loss arising from an erroneous payment by an insurer to a health care 

provider rests with the insurance company, such that recoupment of such payments would be 

improper. 

31. Health Net did not formally respond to the appeal, but in subsequent telephone 

calls, Health Net represented to Premier Health that Health Net would not consider the appeal 

and that it was therefore effectively denied. By February 26, 2010, Health Net had begun to 

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recoup the alleged overpayments by withholding sums from payments otherwise due and owing 

to Premier Health for services provided to United Insureds. 

32. In an email to Premier Health dated March 16, 2010, Health Net confirmed the 

recoupments had begun, stating: 

Below is a breakdown of all claims retracted, showing if recouped or still open. 

Again if the Member can get her coverage updated than all of these claims will be 

reprocessed. If she cannot get coverage retro-activated than she will be 

responsible for payment to you in full on these claims. 

33. The email summarized that a total of $3,084 had been recouped, by withholding 

payments for unrelated claims that were otherwise payment benefits, with an additional $1,382 

“on hold.” The email ended by stating: “There is nothing further I can do to resolve this issue.” 

Health Net has proceeded to recoup funds from Premier Health in an amount exceeding that 

which it claimed to have been overpaid. 

34. Prior to recouping the funds, Health Net failed to offer or provide Premier Health 

with a “full and fair review” of the retroactive adverse benefit determination which served as the 

basis for its repayment demand. For this and other reasons, Health Net violated ERISA. 

United

35. Among the services Dr. Kim, on behalf of Premier Health, provides to his patients 

are Manipulation under Anesthesia (“MUA”), where a provider places a patient under anesthesia 

before providing spinal manipulation services, and Nerve Conduction Studies (“NRV”), which 

are used to find damage to the peripheral nervous system and to assist in the diagnosis of and 

treatment for nerve disorders. Dr. Kim has provided these treatments to United Insureds for 

years; these services have been reimbursed as Covered Services under the patients’ health care 

plans throughout. 

36. At some point beginning as early as 2006 for MUA and 2008 for NRV, United 

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changed its policy and began to deny coverage for such services. Premier Health appealed those 

denials and exhausted all administrative remedies. Premier Health subsequently sued United in 

state court in New Jersey seeking coverage for the denied benefits. 

37. On November 30, 2010, United filed its Second Amended Answer to Amended 

Complaint, Defenses and Amended Counterclaim (“United Counterclaim”) to Premier Health’s 

state law complaint. In its counterclaim, United asserts that it “was and is the administrator 

and/or insurer of major medical and hospitalization plans sponsored by employers and offered to 

their employees throughout the United States, including New Jersey,” defining them collectively 

as the “Health Plans,” adding that “[m]any of these Health Plans . . . were and are employee 

welfare benefit plans governed by ERISA.” United Counterclaim, ¶ 5. 

38. United proceeds to assert a right to repayment for previously paid MUA and NRV 

payments to Dr. Kim, on the basis that they were not Covered Services under the applicable 

Health Plans, stating: 

Phillip Kim, D.C. and Plaintiff have been erroneously reimbursed for MUA 

services, which are not covered under the [Health] Plans. Plaintiff has submitted 

under Phillip Kim, D.C.’s name for serial MUA procedures, that are not covered 

services under The Plans, and which were performed on at least nine [United] 

participants. 

Phillip Kim, D.C. and Plaintiff have also been erroneously reimbursed for nerve 

conduction studies, which were not performed in conjunction with needle 

electromyography, and therefore are not covered services. 

United Counterclaim, ¶¶ 20-21. 

39. United then asserted that it was seeking overpayment of “no less than $498,000,” 

representing the aggregate amount by which it purportedly had overpaid Premier Health for 

providing non-covered MUA and NRV services. In so doing, United made clear that it was 

asserting its claim as a remedy under ERISA, stating: 

Pursuant to 29 U.S.C. § 1132(a), with respect to the Health Plans governed by 

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ERISA, [United] may bring a civil action to obtain “appropriate equitable relief” 

to redress violations of ERISA or the terms of an ERISA plan, or to enforce any 

provisions of ERISA or the terms of the ERISA plan. 

Id. ¶ 31. Further, United asserted that any claims by Premier Health to challenge United’s 

payment policies were preempted by ERISA: “Plaintiff’s remedies for any act or omission of 

United are limited solely to those afforded by ERISA. Id. ¶ 5. 

40. United is correct that ERISA governs a dispute over the alleged overpayment of 

health care benefits and related repayment demands made by insurers against providers. Its 

counterclaim, however, was improvidently filed as state courts do not have jurisdiction over the 

ERISA claims filed by United. Premier Health will therefore be filing a motion to dismiss the 

Counterclaim. 

41. In this action, Premier Health seeks to exercise its rights under ERISA, pursuant 

to assignments it has received from its United Insured patients, to preclude United from seeking 

to enforce its repayment demands. Among other things, United cannot pursue a repayment 

demand, which constitutes a retroactive adverse benefit determination, without complying with 

ERISA’s detailed procedural guidelines, including the requirement that United provide a “full 

and fair review” of its adverse benefit determinations. 

THE EXPERIENCE OF PLAINTIFF SPRANDEL 

_______WITH UNITED HEALTH PLANS_______

42. In mid-2009, Dr. Sprandel received various requests for medical records from 

Optum, a division of UnitedHealth Group, as part of an ongoing post-payment audit of benefits 

he had previously received for services provided to United Insureds. Dr. Sprandel complied with 

the requests and provided the records. 

43. In August 2009, Dr. Sprandel received a series of formal “Refund Requests” from 

Optum, sent under the letterhead of Johnson & Rountree, a collection agency retained by United 

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for work on collecting alleged overpayments from providers. In these requests, Optum identified 

the date of service, from 2008 or 2009, with the amount of overpayment identified. The 

following was listed as the “Overpayment Reason”: 

Claim paid for a service not payable under OptumHealth Reimbursement Policy. 

Manual therapy (97140) must be documented as a distinct service not in the 

chiropractic manipulative treatment region and must meet the timed-service 

requirement as described in ACN Group UM Policy 474 and Reimbursement 

Policies 0045 & 0049. The following CPT codes are not supported by the 

documentation submitted. [Date of service]: 97140. 

44. This was followed by a series of letters from Optum in or around September 

2009, in which it stated it had “recently performed a review of UnitedHealthcare paid claims” in 

which “it was determined the claim(s) . . . was/were paid incorrectly.” After asking that a “refund 

check” be made out to UnitedHealthcare and sent to Johnson & Rountree, it added: “If you 

believe these findings are in error, you have the right to appeal. If you want to appeal, you must 

do so within 30 days of receipt of this initial request by submitting, in writing, the reason for 

your appeal, any documentation, and supporting material to Johnson & Rountree . . .” Finally, it 

stated that “[i]f a response is not received, UnitedHealthcare may offset future payments by the 

refund amount requested.” 

45. By letter dated November 4, 2009, Dr. Sprandel submitted a formal appeal to 

United’s repayment demand, stating: 

The purpose of this correspondence is to furnish proof that the services rendered 

to your insured, my patient, were reasonable necessary, and the billing codes for 

same are herein discussed for clarification purposes, and to remain adamant that 

no overpayment exists, the UCR rates of [United] have been applied by us, a plan 

provider for [United]. 

46. In the letter, Dr. Sprandel explained that he used CPT Code 97140 with modifier 

-59 to demonstrate that he was providing this service on a region unrelated to the area of 

chiropractic manipulative treatment that was therefore properly payable as a distinct service, as 

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explained in the coding books identifying proper coding protocols: “[I]f the 97140 service is at a 

different region, the AMA approves its usage. For such encounters, the modifier -59 is appended 

to the 97140, and it signifies that a distinct procedure is being performed at other than the CMT 

treatment region.” 

47. United (through Optum and Johnson & Rountree) denied the appeal by letter 

dated November 19, 2009, stating: 

Johnson & Rountree Premium, on behalf of ACN Group, Inc. (“OptumHealth 

Care Solutions”), previously contacted you regarding this incorrect payment and 

requested a refund. You filed a written appeal. After reviewing the documentation 

submitted, we find the overpayment refund request remains valid. The details of 

the decision(s) are explained on the attached list. 

Please make your refund check payable to UnitedHealthcare and mail the check 

along with a copy of this letter and attached list to Johnson & Rountree Premium, 

P.O. Box 203921, Houston, TX 77216-3921. 

If you believe this decision was made in error, please submit in writing the 

reasons for your continuing appeal, any documentation, and supporting material 

to Johnson & Rountree Premium, PO Box 2625, Del Mar, CA 92014. 

Your prompt attention to this matter is greatly appreciated. If a response is not 

received, UnitedHealthcare may offset future payments by the refund amount 

requested. 

The list attached to the letter identified the amounts that were allegedly overpaid, with the 

statement: “A second audit of the originally submitted medical records has been completed. The 

overpayment determination that CPT code 97140 is not supported by the required documentation 

has been upheld.” 

48. Dr. Sprandel responded to this correspondence with a letter dated December 2, 

2009, stating as follows: 

[S]ince the issue dispute is 97140-59 for services wherein trigger point 

compression was manually administered, we have consulted a billing specialist 

who recommended using code 97124-59, instead of 97140-59. 

Since the services have been paid, please note rebilling is for correction of code 

purposes only. 

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49. After resubmitting the bills with the revised code, Dr. Sprandel continued to 

receive reports from Johnson & Rountree asking for repayment. He therefore submitted further 

appeals, asking for back-up information supporting the pricing paid for the treatments and for the 

claim that the treatments provided were not Covered Services under the patients’ health care 

plans. In one letter dated December 17, 2009, Dr. Sprandel stated: 

We have re-examined the 12-07-2009 corrected billing and find that HGFA [sic] 

billing was originally $51.00 for CPT code 97124. You will need to furnish the 

claimant/insureds SPD [summary plan description] to prove that CPT 97124 . . . is 

not a covered service. 

50. In another letter of the same date, referring to continued repayment demands 

relating to CPT code 97140, Dr. Sprandel reiterated his demand for back-up information, 

including the patients’ SPD and the “‘audit’ notes” relating to the repayment demand. In 

requesting such information, Dr. Sprandel stated: 

We cannot simply “accept” your word – we must have proof of your assumptions 

and this will be the third time we have asked you for proof of price lists within 

this patient’s SPD (Summary Plan Description), which is probably an ERISA 

matter, hence, there should be a printed SPD available to me as a provider. If this 

is an ERISA contract, you must furnish the SPD or face a fine of $100.00 per day 

for not furnishing the SPD on a timely basis. 

51. Without responding to Dr. Sprandel’s request for back-up information, United 

(through Optum and Johnson & Rountree) issued new letters in January 2010, designated as 

“Appeal Resolution – Overpayment Still Exists,” which simply repeated the same language from 

the November 19, 2009 letter, stating that the appeal had been denied and the overpayment 

remained due and owing. Accompanying these letters were the same charts reflecting the 

overpayment demand, stating: 

A third audit of the originally submitted medical records has been completed. The 

overpayment determination that CPT code 97140 is not supported by the required 

documentation has been upheld. 

52. Dr. Sprandel has continued to receive repeated refund requests from Johnson & 

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Rountree on behalf of United, forcing Dr. Sprandel and his staff to waste valuable time and 

energy responding to such requests and filing repeated and futile appeals. Each and every time, 

United (through Johnson & Rountree) has denied the appeals, while ignoring the requests for 

back-up information and related documents. Through this action, Dr. Sprandel seeks to exercise 

his rights under ERISA, pursuant to assignments he has received from his patients insured by 

United, to preclude United from seeking to enforce its repayment demands. Among other things, 

United cannot pursue a repayment demand, which constitutes a retroactive adverse benefit 

determination, without complying with ERISA’s detailed procedural guidelines, including the 

requirement that United provide a “full and fair review” of its adverse benefit determinations. 

THE EXPERIENCE OF PLAINTIFF HICKS WITH UNITED HEALTH PLANS

53. By letter dated February 2, 2010, OptumHealth Audit and Recovery Operations 

requested that Dr. Hicks provide the medical records for seven patients relating to claims Dr. 

Hicks had submitted for these patients, which claims had already been paid by United. Dr, Hicks 

provided the requested records. 

54. By letter dated February 19, 2010, Optum Health reported to Dr. Hicks that it had 

completed its medical records audit and had determined that paid codes submitted by Dr. Hicks 

“were not supported by minimum documentation requirements” because the supporting 

documents were “illegible,” and it therefore identified the amounts paid for those claims as 

overpayments. 

55. Dr. Hicks appealed this determination. In letters dated March 19 and March 29, 

2010, Dr. Hicks’ office wrote as follows: 

There have been several claims and patients that are under this [refund] request 

for “overpayment,” the reason stating “illegible record submission.” This poses 

some confusion due to the fact that all of our claims are filed electronically. In 

addition, the included patients all required notification through ACN. Approval 

was received from ACN with electronic notification done by our office prior to 

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treatment. Please review the validity of this request due to the fact that claims 

were filed electronically and treatment was authorized through ACN. 

56. Dr. Hicks also attempted to provide additional records supporting the claims in 

order to make them legible for any auditors. However, Optum refused to consider these records 

because it considered these to be “modifications or revisions of the patient medical record 

subsequent to the audit [that] cannot be considered in the appeal process.” 

57. On April 27, 2010, Johnson & Rountree sent a letter to Dr. Hicks, which stated 

“APPEAL RESOLUTION – Overpayment Still Exists,” and noted a “total due” amount of 

$3,837.00 relating to overpayment of claims. The letter further stated: 

Johnson & Rountree, on behalf of ACN Group, Inc. (“Optum Health Care 

Solutions”), previously contacted you regarding this incorrect payment and 

requested a refund. You filed a written appeal. After reviewing the 

documentation submitted, we find the overpayment refund request remains valid. 

58. The letter went on to state that if payment was not received, “United Healthcare 

may offset future payments by the refund amount requested.” 

59. Johnson & Rountree sent Dr. Hicks similar correspondence in May and July, 2010 

regarding other alleged claim overpayments, noting that the insurer had denied his appeal on 

these claims, and demanding that Dr. Hicks refund the insurer for the claims in question. As 

with the earlier correspondence, the letters stated that if payment was not received, United 

Healthcare may “offset future payments by the refund amount requested.” 

60. By letter dated June 28, 2010, Dr. Hicks again attempted to appeal United’s 

determination of overpayment. Dr. Hicks’ June 28th letter detailed the diagnosis for the seven 

patients in question, and the recommended treatment. The letter pointed out that that for each of 

these patients, Dr. Hicks had submitted documentation to ACN, and ACN had approved the 

treatment. The letter noted that “[i]f there had been any question of whether [treatment] was 

appropriate, ACN would not have given approval for this level of service.” 

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61. Despite Dr. Hicks’ good faith efforts to provide the necessary documentation and 

overturn United’s overpayment determination, United has arbitrarily and unreasonably refused to 

consider the documentation supplied by Dr. Hicks’ office, and continued with its repayment 

demands to Dr. Hicks, thereby effectively denying Dr. Hicks a full and fair review of its adverse 

benefit determination. In fact, on September 17, 2010, OptumHealth Care Audit and Recovery 

Unit issued a second set of medical records requests to Dr. Hicks’ office. 

62. Through this action, Dr. Hicks seeks to exercise his rights under ERISA, pursuant 

to assignments he has received from his patients insured by United, to preclude United from 

seeking to enforce its repayment demands. Among other things, United cannot pursue a 

repayment demand, which constitutes a retroactive adverse benefit determination, without 

complying with ERISA’s detailed procedural guidelines, including the requirement that United 

provide a “full and fair review” of its adverse benefit determinations. 

THE EXPERIENCE OF PLAINTIFF TRI3 

____WITH UNITED HEALTH PLANS__ __

63. Tri3, operating through Wabash and Orthoflex, is a DME facility, whereby it 

provides durable medical equipment to United Insureds who come to it after having been 

prescribed such equipment by their treating health care providers. Upon providing such supplies 

to United Insureds, Tri3, through Wabash and Orthoflex, files claims with United for 

reimbursement pursuant to the terms and conditions of the underlying health care plans of the 

patients. United then pays the applicable benefits directly to Tri3, Wabash or Orthoflex, pursuant 

to assignments they have obtained from the United Insureds. 

64. On numerous occasions, United withheld payments for otherwise covered 

services as offsets for alleged overpayments of prior benefit payments. In such circumstances, 

however, United does not provide a valid explanation of the basis for its determination that there 

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has been an overpayment, and it fails to provide any means by which Tri3 can appeal or 

otherwise grieve the recoupment. In total, United has improperly recouped, through withholds of 

benefit payments otherwise due to Tri3, more than $25,000. 

65. As one example of an improper recoupment, United sent a Remittance Notice to 

Wabash dated June 3, 2010. In that notice, United reported that it had allowed $1,911.88 for 

certain DME provided to a United Insured. After deducting the co-payment and deductible that 

remained the responsibility of the patient, United reported that Wabash was “paid” $1,057.53. 

However, United then reported that the total check actually paid Wabash was only $696.13, with 

$361.13 being withheld as a “provider adjustment.” To explain that reduction, United used the 

code “WO” for “Overpayment Recovery.” No other explanation was given for why this amount 

had been withheld as an overpayment, and no further opportunity to appeal or otherwise grieve 

the recoupment was offered by United. The following are similar examples: 

Remittance Notice Total Recouped (WO)

Dec. 31, 2010 $275.25 

June 23, 2010 $19.88 

June 16, 2010 $811.02 

June 16, 2010 $11.02 

In each case, United provided no explanation for the alleged overpayment and offered no appeal 

process. 

66. Orthoflex has been subjected to similar improper recoupments. As one example, 

United sent Orthoflex a Remittance Notice dated February 3, 2011, reporting that Orthoflex had 

submitted claims for various DME provided to a United Insured. A total allowed amount of 

$1,455.59 was identified, with a total amount “paid” to Orthoflex of $663.35 after the patient’s 

co-payment and deductible. But United then reported that the entire amount was being withheld 

as an “adjustment” as an “Overpayment Recovery,” using the same “WO” code. Thus, Orthoflex 

received no payment at all for providing these otherwise covered medical supplies. In addition, 

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as with Wabash, United provided no additional explanation and offered no internal appeal 

process. 

67. On March 23, 2011, United also sent Orthoflex an “Overpayment Notification,” 

in which it stated, in full: 

UnitedHealthcare is unable to offset the attached list of identified claim 

overpayment(s) because we are unable to offset funds on this claim system at this 

time. For this reason, please make your refund check payable to 

UnitedHealthcare, and mail the check along with a copy of this letter and attached 

list to UnitedHealth Group Recovery Services, P.O. Box 740804, Atlanta, GA 

30374-0804. Please contact us at [phone number] if you require additional 

information. 

Attached to the letter was a “Refund Request” relating to health care services provided to a 

United Insured from November 23, 2010 through December 13, 2010, with the alleged 

overpayment amount of $1,748.98. The “Overpayment Reason” provided on the form was “HRA 

overpaid-Medicaid reconsidered charge,” with an addition comment listed under “Notes,” 

stating: “This claim was reconsidered by UnitedHealthcare medical benefits.” No further 

information was provided, and no appeal rights were offered to Orthoflex to challenge the 

overpayment demand. 

68. When United withholds payments for claims submitted by Tri3 (through Wabash 

or Orthoflex) on behalf of United Insureds, this constitutes an adverse benefit determination 

under ERISA. Similarly, when United determines that previously paid benefits had been 

overpaid, and pursues repayments, this similarly constitutes an adverse benefit determination 

under ERISA. Under both circumstances, United is required to comply with ERISA, including 

with appropriate notice and providing a “full and fair” review, prior to withholding benefits or 

otherwise recoupment funds from Plaintiffs. It has failed to do so, in violation of its ERISA 

obligations. 

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THE EXPERIENCE OF PLAINTIFF BHSC 

WITH UNITED HEALTH PLANS

69. BHSC is a licensed surgical center with offices at 250 S. La Cienega Boulevard, 

Suite 204, Beverly Hills, California 90211. BHSC, too, has been the subject of post-payment 

audits by United, which resulted in overpayment notifications and refund requests by United to 

BHSC. In some cases, United offset alleged “overpayments” on certain claims to amounts 

currently due and owing to BHSC on other, unrelated claims. 

70. On May 18, 2010, BHSC submitted a claim for reimbursement in the amount of 

$23,867.01 to United for services provided to United Insureds on March 27, 2010, which United 

paid on June 21, 2010. 

71. On August 12, 2010, United Healthcare sent BHSC a notice of alleged 

overpayment with respect to this claim that it had already approved and paid. The letter stated, 

in relevant part: 

Every effort is made to process claims accurately, but unfortunately errors 

can occur. We overpaid you for the above claim and a refund is needed. 

* * * 

Please repay us $11,933.50 with a check or money order payable to 

UnitedHealthcare. We would appreciate receiving the refund within 45 

days from the date of this letter. 

72. The stated reason for overpayment was that United had “incorrectly calculated the 

patient’s coverage” for the services provided by BHSC. The letter further stated: “If we do not 

receive the refund, we may deduct the amount due from future claim payments.” 

73. On October 3, 2010, United sent BHSC a “Followup Request – Overpayment 

Notification,” which noted an outstanding balance of $11,933.50 and stated as follows: 

UnitedHealth Group Recovery Services, on behalf of UnitedHealthcare, 

previously contacted you regarding the incorrect claim payment(s) on the 

attached list. We requested a full refund be made payable to 

UnitedHealthcare and mailed to UnitedHealth Group Recovery Services. 

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To date, we have not received the refund requested. 

Please make your refund check payable to United Healthcare and mail the 

check along with a copy of this letter and attached list to UnitedHealth 

Group Recovery Services, P.O. Box 740804, Atlanta, GA 30374-0804. 

* * * 

Your prompt attention to this matter is greatly appreciated. If a response 

is not received, UnitedHealthcare may offset future payments by the 

refund amount requested. 

74. With respect to other patients of BHSC, United proceeded to recoup the alleged 

overpayments it claimed it had made by offsetting the amount it claimed was owed against future 

benefit payments. It did so by withholding funds otherwise due and payable on behalf of two 

BHSC patients. 

75. Through this action, BHSC seeks to exercise its rights under ERISA, pursuant to 

assignments it has received from his patients insured by United, to preclude United from seeking 

to enforce its repayment demands and to preclude it from offsetting future alleged overpayments 

on certain claims against monies otherwise due its patients on unrelated claims. Among other 

things, United cannot pursue a repayment demand, which constitutes a retroactive adverse 

benefit determination, without complying with ERISA’s detailed procedural guidelines, 

including the requirement that United provide a “full and fair review” of its adverse benefit 

determinations. 

THE EXPERIENCE OF PLAINTIFF RODGERS 

WITH UNITED HEALTH PLANS

76. Dr. Rodgers is a licensed chiropractic radiologist and board-certified athletic 

trainer. Because Dr. Rodgers has specialized knowledge in radiology, he frequently takes on 

patients who require xrays as part of their treatment from other chiropractors who lack the 

knowledge or equipment necessary to perform xrays. As a result, Dr. Rodgers’ practice performs 

a volume of xray services that greatly exceeds the average among chiropractors. 

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77. Dr. Rodgers was previously a participant in Optum’s ACN network. However, in 

early 2005, Optum notified Dr. Rodgers that, because the number of xrays he performed in 2004 

was more than one standard deviation for the average among in-network chiropractors, he would 

need to submit to a Performance Improvement Agreement requiring him to perform fewer xrays. 

78. Believing Optum had merely failed to take his practice specialty into account, and 

loath to sign on to what he considered to be an unjust admonishment of his practice, Dr. Rodgers 

refused to sign the Performance Improvement Agreement. 

79. Optum responded by sending a “Termination Notice” to Dr. Rodgers. The notice 

indicated that Dr. Rodgers would be terminated from the ACN network if he failed to sign the 

Performance Improvement Agreement by August 29, 2005. 

80. On June 6, 2005, Rodgers wrote a letter appealing the termination notice he 

received from Optum. In his letter, Rodgers requested that Optum either upgrade his provider 

status to “Tier 1” (Optum’s most preferred provider rating) or provide an explanation as to why, 

taking into consideration his unique practice profile, that tier status would be inappropriate. 

Rodgers’s letter also requested that Optum’s termination notice be rescinded. Rodgers requested 

a response by July 1, 2005. 

81. When Rodgers did not hear from Optum, he wrote another appeal letter on August 

1, 2005. In this letter, Rodgers reiterated that, given his practice specialty, disproportionate xray 

services were inevitable, and should not be a basis for admonishment. The letter provided 

concrete information disputing Optum’s evaluation of Dr. Rodgers’s xray utilization: 

Regarding my x-ray utilization, I have included a sample of my radiology 

consultant intake forms and radiology reports in 2 consecutive months in 2004 

demonstrating the fact that my clinic both takes and interprets on the average 25 

studies/month diagnostic imaging studies for other chiropractors, physiatrists, and 

physical therapists. Additionally, I have discussed the inaccuracy in A.C.N.’s xray utilization data on several occasions with Gordon Heinrich and R.T. Donohue. 

Specifically, I surveyed Boulder County chiropractic clinics 3 years ago to 

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identify which clinics had in-house x-ray abilities for my own radiology service 

marketing purposes. I found that only 73% of clinics had their own x-ray tube. 

The remainder was sending patients to local hospitals, orthopedists, or 

independent diagnostic imaging centers like my own clinic. This makes those 

providers’ utilization lower while making mine higher. Is this not the case? Is it 

fair to expect a provider to sign and agreement to alter his or her x-ray utilization 

based on this disparity in data collection and my clinic’s unique referral base? Is 

this the type of variance you’re really trying to alter? I think not. 

82. After Optum refused to consider Dr. Rodgers’s attempts to appeal their 

determination, Dr. Rodgers decided to terminate his participation in the ACN network. Dr. 

Rodgers continues to provide out-of-network care to Optum and United Insureds. However, the 

fact that he no longer participates as an in-network provider limits his access to Optum and 

United Insureds and has had a negative economic impact on his practice. 

THE EXPERIENCE OF PLAINTIFF O’DONNELL 

WITH UNITED HEALTH PLANS

83. Dr. O’Donnell is a licensed chiropractic who specializes in integrated 

chiropractics. She has more than 25 years of experience helping patients resolve pain issues and 

alleviate symptoms of medical conditions by restoring the body’s proper alignment. Her areas of 

expertise include the Graston Technique, orthotic training, rehabilitation protocols for spinal and 

extremity conditions, soft tissue treatments and Kinesio Taping for athletes. 

84. Dr. O’Donnell became an INET provider with United in or around 2002. At some 

in time thereafter, she was identified by United as being a purported outlier due to the number 

and types of services she provided to her patients and was placed on a tiering level that required 

her to submit claims to frequent reviews by United. 

85. United called Dr. O’Donnell on a number of occasions to go through her profile 

and try to pressure her to reduce the numb and types of services she was providing. The United 

representatives would even specify that certain services should be done by the patient at home, 

rather than being provided by a medical provider, a conclusion with which Dr. O’Donnell 

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vehemently disagreed. 

86. At one point Dr. O’Donnell wrote a letter to United to explain why her practice 

differed from other practitioners and why she provided the types of services she did. United, 

however, never responded to her letter, nor did it seek further information, but continued to 

pressure to such an extent that Dr. O’Donnell found it to be harassing. 

87. During this time, United also delayed payments for benefits provided by Dr. 

O’Donnell, and frequently stopped paying altogether, even for new patient visits. The difficulties 

got so significant that in or around 2007, Dr. O’Donnell elected to terminate her association as an 

INET provider with United. While Dr. O’Donnell continues to be available to provide services as 

an ONET provider to Optum and United Insureds, her access to such patients is limited since she 

is not on the INET list, which has cost her patients and lost income. 

DEFENDANTS’ ERISA VIOLATIONS RESULTING FROM 

THEIR POST-PAYMENT AUDIT AND RECOUPMENT PRACTICES

88. Due to the role United (or the Health Net Defendants) played in administering the 

United Plans that provided the insurance to the patients whose claims were subsequently 

determined to be overpaid, including making coverage and benefit decisions and deciding 

appeals, it acted as a fiduciary under ERISA. Under ERISA, United cannot deny coverage for 

such services unless the applicable health care plan expressly includes an exclusion specifying 

that such services are not covered benefits. 

89. Under ERISA, United is required, among other things, to comply with the terms 

and conditions of its health care plans; to accord its United Insureds or their providers an 

opportunity to obtain a “full and fair review” of any denied or reduced reimbursements; and to 

make appropriate and non-misleading disclosures to United Insureds or their providers. Such 

disclosures include accurately setting forth plan terms; explaining the specific reasons why a 

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claim is denied and the internal rules and evidence that underlie such determinations; disclosing 

the basis for its interpretation of plan terms; and providing appropriate data and documentation 

concerning its coverage decisions. 

90. In offering and administering its health care plans, United further assumes the role 

of “Plan Administrator,” as that term is defined under ERISA, in that it interprets and applies the 

plan terms, makes all coverage decisions, and provides for payment to members and/or their 

providers. As the acting Plan Administrator, United also assumes various obligations specified 

under ERISA. These obligations include providing its members with a Summary Plan 

Description (“SPD”), a document designed to describe in layperson’s language the material 

terms, conditions and limitations of the health care plan. The full details of the plan, which are 

summarized in the SPD, are contained in the Evidence of Coverage (“EOC”) that governs each 

member’s health care plan. 

91. United is also obligated under ERISA to make its coverage determinations in a 

manner consistent with the disclosures contained in the SPD. To the extent there is a disparity or 

conflict between the SPD and the EOC, the SPD governs, so long as the member benefits from 

the application of the SPD. If the employer, rather than United, is deemed to be the Plan 

Administrator, United remains responsible for ensuring that the SPD complies with the law 

under its duties as a co-fiduciary as provided in ERISA, 29 U.S.C. § 1105, even if the employer 

prepares or disseminates the SPD. 

92. United violated ERISA and breached its fiduciary duties by failing to disclose the 

reimbursement rules it used to reduce members’ benefits, by making retroactive benefit claim 

denials without proper disclosure or following required procedures, by seeking to impose new 

policies after-the-fact in an effort to compel payments by providers, by improperly excluding 

benefits for safe and effective services based on an incorrect determination that they were not 

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Covered Services, by improperly recouping benefits or suing for repayment of benefits that were 

rightfully paid to Plaintiffs, and by failing to fulfill its obligations of good faith, due care and 

loyalty. 

93. Under ERISA: 

The term “adverse benefit determination” means any of the following: a denial, 

reduction, or termination of, or a failure to provide or make payment (in whole or 

in part) for, a benefit, including any such denial, reduction, termination, or failure 

to provide or make payment that is based on a determination of a participant’s or 

beneficiary’s eligibility to participate in a plan, and including, with respect to 

group health plans, a denial, reduction, or termination of, or a failure to provide or 

make payment (in whole or in part) for, a benefit resulting from the application of 

any utilization review, as well as a failure to cover an item or service for which 

benefits are otherwise provided because it is determined to be experimental or 

investigational or not medically necessary or appropriate. 

94. As the definition makes clear, United’s new policies as applied to Providers 

constitute “adverse benefit determinations” under ERISA. The requests for recoupment are based 

on United’s determination that the services at issue were not “covered,” and the forced 

recoupment or withholding of authorized benefits constitutes a “reduction” in benefits or “a 

failure to provide or make payments (in whole or in part) for a benefit,” thereby satisfying the 

requirement for an adverse benefit determination. 

95. ERISA further establishes what steps must be followed once an “adverse benefit 

determination” is reached, including the following: 

[T]he plan administrator shall provide a claimant with written or electronic 

notification of any adverse benefit determination. . . . The notification shall set 

forth, in a manner calculated to be understood by the claimant – (i) The specific 

reason or reasons for the adverse determination; (ii) Reference to the specific plan 

provisions on which the determination is based; (iii) A description of any 

additional material or information necessary for the claimant to perfect the claim 

and an explanation of why such material or information is necessary; (iv) A 

description of the plan’s review procedures and the time limits applicable to such 

procedures, including a statement of the claimant’s right to bring a civil action 

under section 502(a) of the Act following an adverse benefit determination on 

review . . . (29 CFR 2560.503-1(g)). 

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96. In addition, ERISA requires that each claimant be given “a reasonable opportunity 

to appeal an adverse benefit determination” and to receive a “full and fair review of the claim,” 

(29 CFR 2560.503-1(h)(1)), all within clear and explicit timing requirements. 

97. United utterly failed and continues to fail to comply with any of the ERISA 

requirements. After making benefit determinations, pursuant to which it found that the specific 

health care services at issue were Covered Benefits of its health care plans and subsequently paid 

benefits to the providers, United reversed its coverage decisions. United subsequently informed 

these Providers that it was determining that those same services were no longer deemed to be 

Covered Services and demanded that the providers repay United. 

98. United’s actions represent after-the-fact adverse benefit determinations under 

ERISA that would have the effect of creating new liabilities for the members to the providers. 

Yet, United failed to inform United Insureds or their providers of their actions, including by 

failing to provide necessary disclosures or documentation required under ERISA either to the 

members or the providers. 

99. Because of United’s failure to comply with the steps required under ERISA to 

pursue an adverse benefit determination, its actions in demanding recoupment are invalid and 

unenforceable, and its coverage determinations should be deemed to be arbitrary and capricious. 

100. Even were United to have complied with its procedural obligations under ERISA, 

it has no legal right to recoup or pursue repayment of such funds paid to Providers, based on 

retrospective reversals of prior benefit determinations. Each recoupment demand issued by 

United is a claim for restitution under ERISA. Yet, ERISA does not permit restitution unless the 

assets at issue are easily identified and separate from other assets, which these are not. Providers 

obtained the funds in good faith and expended them or otherwise acted based on the assumption 

that such payments were proper. As there is no dispute that the services at issue were provided 

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by the Providers, and that they billed and received payment for these services in good faith, 

ERISA does not permit restitution, and equity demands that the providers be entitled to keep 

such payments. United should therefore be estopped from seeking recoupment or retaining any 

funds that were paid pursuant to its demands, or should otherwise be found to have waived its 

ability to collect. 

OPTUM

101. The use of post-payment audits and repayment demands to recoup previously paid 

benefits is only part of the scheme undertaken by Defendants to enhance profits through denials 

of benefits otherwise due and payable under United health care plans. In particular, United, 

through Optum, has adopted a series of internal policies and procedures that are intended to – 

and have had the affect of – improperly denying benefits of health care services, in violation of 

ERISA. 

102. On behalf of UnitedHealth Group, Optum (through its Physical Health division) 

manages the United Healthcare networks for chiropractic providers, as well as speech, physical, 

occupational and massage therapists, and athletic trainers. In total, Optum has an estimated 

24,000 chiropractic providers in its networks across the United States, and these providers 

manage care for approximately 20 million subscribers. Optum does business under a variety of 

names, including OptumHealth, Inc., OptumHealth Care Solutions, Inc., ACN Group IPA of 

New York, Inc., Managed Physical Network, Inc., and ACN Group of California, Inc. 

103. The Optum provider contract is not negotiated, but is offered as a take-it or leaveit proposition to the provider. Because of the size of the Optum network, and the large number of 

subscribers it controls, many providers have no real option but to accept the Optum contract if 

they are to remain in business. In addition, the construct of most of United’s chiropractic benefits 

are with high copays and/or deductibles such that ONET providers find that there is virtually no 

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payment of benefits and few, if any, patients seek services from ONET providers. 

104. As a means to pressure its INET providers to reduce the amount of services 

provided to United Insureds, as well as the insureds of other insurers who use Optum’s services, 

Optum has adopted a tiering plan that imposes burdensome and unreasonable administrative 

requirements on those providers who have been identified as having a higher level of utilization 

than the “norm” as established by Optum. The “norm” used by Optum to determine tier levels, 

however, are based on flawed and manipulated data that has nothing to do with appropriate 

levels of care, but, instead, are intended solely to pressure providers to reduce utilization rates in 

order to save Optum and United money. 

105. “Tier 1” is defined in Optum’s “Operations Manual for Participating Providers” 

(“Operations Manual”) as follows: 

 Providers that meet a minimal patient volume and have clinical decision-making 

consistently aligned with current evidence and community standards. Tier 1 

providers participate in a minimal utilization process. Following 2 consecutive 

years as a Tier 1 provider, while meeting a minimal patient volume, the provider 

moves to a no utilization review process (Tier 1 Advantage Program). Tier 1 

Advantage providers, with minor plan exceptions, are no longer required to 

submit Patient Summary Forms. 

106. “Patient Summary Forms” are identified in Optum’s Operations Manual as “a 

standardized health record including valid and reliable public domain outcomes-assessment 

instruments for documenting and submitting data regarding the demographic and historical 

attributes of all patients treated and the outcomes of treatment.” While purported to be used to 

assess proper patient outcomes, for which the form is patently inadequate to do, Optum in fact 

only uses the Patient Summary Forms as a means to punish providers who do not lower their 

utilization rates sufficiently to be deemed Tier 1 Advantage providers. Patients also complete a 

cursory section with answers to subjective questions on the Patient Summary Form. Optum 

directs providers within the Provider Manual to explain to patients the plan of care they will 

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undergo which includes frequency, duration, type of treatment and expected outcome. Although 

patients participate in the submission of information to Optum – leading to the expectation of a 

preauthorization of care – no appeal rights are afforded to patients when the care authorized 

differs from the doctor’s careplan, in violation of ERISA. 

107. The Operations Manual defines a “Tier 2” provider as follows: 

Providers that either are new to the network, have not met a minimum patient 

volume or have clinical decision-making not aligned with current evidence and 

community standards in one or more areas. Tier 2 providers participate in a 

comprehensive utilization review process. 

108. The “comprehensive utilization review process,” imposed by Optum on all Tier 2 

providers, which means all providers that have not agreed to reduce their utilization rates to the 

arbitrary level established by Optum, is, in effect, a pre-certification procedure that requires all 

Tier 2 providers to submit clinical information pertaining to each patient so that preauthorization by Optum can occur. Although Optum asks providers to indicate to patients the 

intended plan of care, it does not permit the provider to communicate the planned care to Optum 

as part of the pre-authorization process. Instead, the provider is only to identify the condition of 

and symptoms suffered by the patient, in order to allow Optum to approve certain utilization 

patterns while avoiding ERISA obligations. 

109. In implementing its improper pre-authorization requirement, Optum requires that 

once Tier 2 providers see a United Subscriber, they must submit “Clinical Submission” 

information to Optum by way of a Patient Summary Form prior to providing any further 

treatment after an initial examination. Based solely on the information provided in this Form, 

Optum relies on a proprietary database with undisclosed utilization review criteria to set the 

number of treatments and duration of care that will be deemed to be covered as medically 

necessary. Notably, Optum expressly prohibits the treating provider from requesting a specific 

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number of visits as part of a treatment plan or the number of procedures that the treating provider 

believes are necessary as is common for preauthorization requests. Similarly, Optum refuses to 

take or consider any additional clinical information offered by the treating provider which would 

allow for making a proper clinical determination of the appropriate level of treatment to be 

offered to the patient. Instead, the treating provider may only submit the limited information 

requested by Optum to allow Optum to apply the coverage limits specified in its database. The 

coverage decision is therefore set by Optum based on “black box” computer policies that do not 

apply clinical information applicable to particular patients, contrary to acceptable standards 

under ERISA. 

110. Optum refuses to allow providers to request a particular number of sessions or 

procedures, or to submit clinical information, in a deliberate and intentional effort to avoid its 

obligations under ERISA. By providing its pre-determined coverage limit based on its computer 

model, but without actually taking and thereby “denying” a level of requested care, Optum takes 

the position that it is not denying a claim for benefits and thereby does not need to comply with 

ERISA requirements for dealing with an adverse benefit determination. 

111. Once Optum receives the Patient Summary Form from the Tier 2 provider, it 

provides a “Response to Submission” which dictates the approved number of visits, level of 

chiropractic manipulative treatment (“CMT”), number of therapeutic procedures and the 

timeframe within which the treatment must be given. The endpoint of this period is called the 

“recovery milestone.” While Optum’s Operations Manual states that the recovery milestone “is 

informational only” and “[s]ubmission of the Patient Summary Form is not linked to claims 

payment,” that is false. In fact, in virtually all cases Optum will only pay benefits that it has 

specifically pre-authorized as falling within its computerized parameters for the specified 

recovery milestone. 

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112. Once the recovery milestone is met, the provider must submit new materials to 

Optum and seek another pre-authorized treatment plan. Optum consistently denies payment for 

any care a provider renders without pre-authorization beyond the recovery milestone. 

113. Optum also uses the recovery milestone as a means to limit coverage for 

chiropractic services and to punish Tier 2 providers so as to pressure them to reduce the amount 

of care they provide to the patients. For example, the favored Tier 1 chiropractors may receive 

approval for up 12 months of care, whereas chiropractors who receive the standard “Tier 2” 

rating may receive approval for only up to two months of care. 

114. Without offering any means to appeal a denial of benefits, Optum requires a Tier 

2 provider to submit updated paperwork and request pre-authorization for any care beyond that 

level originally authorized. Optum then repeats the process by reauthorizing or denying care, a 

process that is not only burdensome, but also creates an improper break in the proper treatment 

plan, requiring the provider either to forego treatment, or to provide it without assurance of 

coverage since it is not pre-authorized. When Optum receives the renewed requests it continues 

to apply its proprietary computerized model, without considering clinical records. Aside from 

placing burdensome administrative requirements on the Tier 2 providers, Optum also has used 

the utilization data from the providers to place undue pressure on them to reduce their utilization 

rates, including threatening to reduce them to a lower tier, to not renew them into the network, or 

to terminate them from the INET provider list if they did not reduce the amount of care they 

provide to their patients. Significantly, even though providers are only providing the services that 

have been pre-authorized by Optum, it continues to declare that the averages derived from those 

authorizations are inappropriate and pressures them to reduce care even further. 

115. In addition to punishing Tier 2 providers improperly merely for providing 

treatment to their patients, it also does so without taking into account variations in patient 

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patterns. For example, providers who happen to treat a cohort of patients who require 

disproportionate care (for example, providers who treat an elderly population) are nevertheless 

placed in the higher tier with no rational basis for doing so. It also harms providers with a 

practice specialty or emphasis that causes them to perform particular services disproportionately. 

116. Optum’s system ignores not only the specific needs of a particular provider’s 

patients, but also the terms of the health plans under which those patients are covered. On 

information and belief, Optum does not review members’ health plan documents prior to preauthorizing a particular treatment plan. In other words, Optum effectively determines the level 

of coverage for patients without so much as consulting the health plans that cover those patients. 

117. Frequently, providers who have been identified as outliers are subjected to 

“Provider Outreach Activities,” which means that they are subjected to threatening telephone 

calls and letters in an effort to pressure them to reduce utilization rates. 

118. Prior to 2009, providers who exceeded Optum’s statistical parameters could be 

placed in “Tier 3” status. Tier 3 providers were subjected to a Performance Improvement 

Program (“PIP”) that encouraged them to bring their practice statistics back below Optum’s 

parameters, and were required to sign PIP agreements to reduce the number of services provided. 

Optum threatened these providers with termination from Optum’s network if they failed to meet 

Optum’s parameters or refused to sign the PIP agreements, and has terminated many providers 

on that basis. 

119. Today, providers are intimidated in the same manner. Among other things, 

Optum reportedly targets providers who are “on the top ten percent of the bell curve” in terms of 

utilization for particular types of treatment and are told to reduce care or they will be subjected to 

additional administrative burdens (reduced to a lower tier) or removed from the network. The 

threat of termination was particularly significant because not only would it create a material 

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adverse impact on providers who would have lost access to United subscribers, but any 

termination would also be reported to the National Provider Databank (“NPD”), which placed 

the provider into jeopardy with other insurers as well. Termination also caused providers to be 

forced to report on future credentialing applications that they had been terminated from a 

managed care organization, effectively barring them from all future acceptance into other 

networks. Even Optum, which states they allow terminated providers to apply to rejoin their 

network after a period of two years, disallows providers previously terminated by them, after the 

two-year waiting period, from rejoining their network on the basis that they have once been 

terminated by a managed care organization. Optum’s previous practice of routine termination of 

providers was somewhat curtailed due to this practice being brought to the attention of state 

regulators. Now, equally egregious, the non-renewal of providers causing interruption of care 

plans and interference in the doctor-patient relationship diminishes providers’ ability to provide 

access to care for Subscribers in their communities. 

120. By imposing artificially and unsupported limits on approved services, Optum also 

has created an adverse impact on patient care. Because Optum’s pre-authorization and provider 

tiering practices make no effort to take patients’ particular medical needs into account, they have 

the obvious effect of, in many cases, denying medically necessary care to patients. They also 

encourage, and indeed require, providers to either ignore their ethical obligations to treat patients 

based on those patients’ medical needs, or face the economic consequences of being terminated 

from Optum’s network. 

121. Moreover, when patients receive notice that Optum has limited the number of 

authorized services, they frequently do not follow through with their recommended care plans 

from their health care providers due to cost concerns. This greatly lessens the benefit of the 

treatment that is authorized and could lead to more expensive and less effective treatments for 

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the condition, putting greater strain on the health care plans. 

122. In creating profiles for purposes of determining whether providers exceed 

“community standards,” Optum relies on statistically invalid data, sometimes using as few as 

four patients to determine average utilization rates. This is so even though internal Optum 

information acknowledges that no fewer than 18 patients permit for a statistically valid analysis. 

Moreover, by pressuring providers to reduce care, they are manipulating the data so that it 

continues to reduce what is reported as the “community standard” for proper levels of care, even 

though these standards are inconsistent with what is generally recognized as appropriate levels of 

care in the chiropractic community. Prior to 2005, for example, when Optum began 

implementing its aggressive utilization review procedure, the mean number of visits for an 

Optum patient was 7.0-7.5. After the restrictive utilization review procedures were imposed, the 

mean number of visits per patient has dropped to approximately 5, representing a decrease of 

approximately 30%. This decrease does not result from application of proper clinical guidelines, 

as Optum suggests, but through the invalid computer model and the pressure it continues to place 

on providers. To avoid the adverse consequences resulting from exceeding Optum approved 

utilization rates, many Optum providers are forced to reduce care below the levels they otherwise 

would recommend or to provide such treatments without reporting them to Optum. As a result, 

not only are the providers being unfairly reimbursed, but the data Optum relies upon for 

reporting standard levels of care is understated. 

123. In establishing “community standards,” Optum also ignores variability among 

providers in terms of the types of patients they see, as well as material variations among different 

regions in the country based on age, economic status, weather, types of work and other variables 

that will influence the level of chiropractic care that is needed. Rather than using appropriate 

geographical-based community standards, for example, Optum has, in the past, used manipulated 

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data from one region – Minnesota. To justify its approved level of utilization rates, Optum has 

cited two levels provided in Minnesota, claiming – falsely – that “[t]he characteristics of patients 

presenting for chiropractic care are virtually identical in every market across the country.” In 

fact, Minnesota is a highly homogeneous region that cannot be compared to other geographic 

areas with many different variables. In any event, the Minnesota data itself was arbitrarily 

reduced as a result of Optum’s improper practices designed to lower utilization rates. 

124. These “community standards” are imposed on ONET providers as well. ONET 

providers’ profiles are analyzed, often resulting in threatening calls with demands that certain 

patients be discharged. Reimbursement is reduced to Medicare rates, reimbursement checks are 

sent to the insured despite designations assigning benefits to the provider, and patients are sent 

letters directing them away from their present provider to an in-network provider. These 

practices serve to coerce providers into joining the Optum network. As a fiduciary of plans 

offering insureds the option to choose ONET providers, United failed to act fairly by attempting 

to coerce patients to use INET providers, and ONET providers to become INET, so it could 

retain greater profits. The flaws and inadequacies in the data relied upon by Optum to establish 

its standards for care are evidenced by the fact that they conflict with generally accepted 

standards of care in the chiropractic community. In August 2005, the ACA requested the New 

York Chiropractic College (“NYCC”), which is accredited by the Council on Chiropractic 

Education, to analyze the protocols utilized by Optum in light of what is taught in the NYCC 

curriculum. Noting that “[t]he minimum and maximum amount of care available [under Optum’s 

policies] is consistently less than what is in NYCC’s Educational and Clinical Care Protocols,” it 

then concluded: “If NYCC were to use ACN material above as a cornerstone for our educational 

process, we would need to significantly alter our curriculum, protocols and practices and would 

expect to see a significant decline in positive patient outcomes.” (emphasis added) 

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125. Optum’s improper practices have been recognized by various state regulators, 

although nothing significant has been done to halt the misconduct. In an October 19, 2006 report, 

for example, the Kentucky Department of Insurance (“KOI”) evaluated Optum’s conduct after a 

lengthy investigation. At that time, Optum was operating under the name “American 

Chiropractic Network,” or “ACN,” but its practices have remained largely the same, or worsened 

since then. The report included the following findings: 

After investigating the issues advanced by the complaints [by chiropractic 

providers], and after discussing the issues with ACN and its parent company, 

UnitedHealthcare Group, the KOI makes findings as expressed below. 

Documents propounded to the office evidence that ACN has been nonresponsive to chiropractic providers’ requests for approval of certain procedures. 

ACN maintains that preauthorization of procedures is not required or 

implemented. However, the providers in the ACN network are under the 

impression that ACN must approve treatments prior to the initiation of such 

treatments. Whether or not preauthorization of services is required is an issue 

properly decided based on the terms of the insurance contract between the insurer 

and the insured. ACN shall only require preauthorization if the applicable 

insurance contracts so require. Should preauthorization be required, ACN shall be 

responsive to the procedure requested by either affirming the requested procedure 

or denying the requested procedure. Should the procedure be denied, ACN shall 

grant and give notice to the provider/insured of the insured’s statutory appeal 

rights in accordance with [Kentucky law]. . . . The failure to acknowledge a 

requested procedure shall be considered and treated as a denial. If 

preauthorization is not required according to the insurance contract, ACN shall 

treat the requested procedure as a claim and acknowledge the claim within the 

time frames established by [Kentucky law]. . . . 

With respect to the handling of claims, ACN shall consider the claim in 

light of the benefits provided in the insurance contract. Acting as a TPA for 

insurers, ACN is responsible for handling claims in accordance with the relevant 

claims’ payment statutes. Further, ACN is responsible for administering the 

benefits in accordance with the insurance contract. Consequently, ACN shall 

either affirm or deny claims in accordance with [Kentucky law]. For any adverse 

determination as defined in [Kentucky law], ACN shall afford the insured appeal 

rights granted by [Kentucky law]. 

Lastly, the KOI recognizes the need for insurers to manage provider 

networks and to implement processes and procedures that ensure that policy 

benefits are not misused but are delivered in a manner that is in the best interests 

of both the insured and the insurer. Despite this recognition, the KOI has 

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determined that ACN’s Performance Improvement Program, as implemented, is 

in violation of the Kentucky insurance code. 

ACN has indicated to the KOI that the Performance Improvement 

Program is a mechanism that is used to guard against unnecessary services to the 

insured. Further, through extensive data collection efforts, ACN has developed 

“best practices” standards that providers in the ACN network are required to 

follow. While the premise and concept may be considered noble, the best practice 

standards are developed and administered in a manner that is contrary to 

Kentucky law. The position of the KOI regarding the Performance Improvement 

Program is specifically noted to be as follows: 

• The Performance Improvement Plan requires providers to meet artificially 

established best standards. ACN’s best standards are developed based on 

data compiled from chiropractors that are subject to the Performance 

Improvement Plan rather than from a universal group of chiropractors both 

in and outside of the ACN network. Given this, the “best practices” 

standards will always be biased toward ACN’s standards. The KOI finds 

that ACN’s data collection techniques to be in violation of [Kentucky 

law.] 

• Services deemed by ACN to be medically unnecessary should be treated 

as such through the claims process. That is, ACN should deny claims that 

it deems to be medically unnecessary rather than employ punitive 

measures against the chiropractors for delivering the services that, in the 

chiropractor’s professional opinion, are necessary. The Performance 

Improvement Programs serves to limit treatment available through the 

insured’s contract and permits ACN and the insurers it represents to 

circumvent an insured’s right to either be treated or appeal the adverse 

claim determination. . . . 

• The chiropractic providers in the ACN network have indicated that the 

Performance Improvement Plan has a chilling effect on the delivery of 

services. Due to the threat of punitive measures associated with being 

subject to the Performance Improvement Program, chiropractors are 

reluctant to treat a patient in a manner that the chiropractor deems 

necessary. Consequently, the chiropractors are forced to either place their 

patient on a cash for service plan, change treatment options, retreat from 

the network, or refuse to treat patients. The Performance Improvement 

Program forces the chiropractor to make a decision that pits the patients’ 

treatment needs against the chiropractor’s reputation should the provider 

be subject to corrective action. This practice is in violation of [Kentucky 

law.] 

• The Performance Improvement Plan has not been appropriately divulged 

in the provider contracts. The contracts reviewed by the Office refer 

generally to required compliance with operation manuals, policies and 

procedures. Providers who have been terminated from the ACN network 

were not appropriately warned of the Performance Improvement Program 

and the consequences for failing to meet the “best practices” standards 

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established by ACN. This failure is in violation of [Kentucky law.] 

It is the opinion of the Kentucky Office of Insurance that ACN is in 

violation of various provisions of [Kentucky law] based on the reasons outlined in 

this letter. The Office finds that the practices employed by ACN circumvent the 

laws regarding the payment and denial of claims. Further, while ACN claims that 

the Performance Improvement Plan is beneficial to the insured, the Office finds 

that this claim is not supported. Rather, the Performance Improvement Plan 

seemingly limits insureds’ treatment options. Further, insureds are unable to use 

benefit afforded by their insurance contract and may be forced to refrain from 

seeking necessary care. 

ACN’s practices are being reviewed by other states that have received 

complaints similar to those received by Kentucky. Insurers that acquiesce in the 

practices employed by ACN are ultimately responsible for the actions of ACN 

and will be held responsible for harm suffered by insureds and providers. The 

Office offers this letter to advise of its position and to request a cease and desist 

with respect to (1) the improper denial of claims, (2) failure to acknowledge and 

act upon requests for treatment, (3) failure to afford appeal rights to insureds in 

the event of an adverse determination, (4) the implementation of the Performance 

Improvement Program, and (5) the termination of providers from the network 

based on the terms of the Performance Improvement Program. . . 

126. While the findings of the KOI apply to Kentucky law, they are equally applicable 

to ERISA and each and every finding by the KOI that Optum was in violation of Kentucky law 

also supports a finding that Optum is in violation of ERISA. For example, as the KOI found, the 

extent to which pre-certification of services may be permitted must be determined “based on the 

terms of the insurance contract between the insurer and the insured,” and, in handling claims, 

Optum must do so “in accordance with the insurance contract,” which requires application of 

ERISA. To the extent Optum applies its pre-certification requirements to authorize a number of 

treatments below the level that the providers believe to be necessary, that must be treated as a 

denial of benefits, with appropriate “notice to the provider/insured of the insured’s statutory 

appeal rights” under ERISA. Further, the Clinical Support Program (which has now replaced 

Optum’s Performance Improvement Program) and similar policies adopted by Optum to control 

and oversee the utilization of services by its INET providers are “biased” and “serve[] to limit 

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treatment available through the insured’s contract and permits [Optum] and the insurers it 

represents to circumvent an insured’s right to either be treated or appeal the adverse benefit 

determination,” as required under ERISA. Just as the KOI ordered Optum to “cease and desist” 

its statutory violations of Kentucky law, so too should this Court order United and Optum to 

“cease and desist” their statutory violations of ERISA. 

127. Optum utilized the Performance Improvement Program that was the subject of the 

KOI findings until 2009. At that point it modified its procedures, moving to the two tier approach 

described herein. The same failures and inadequacies of the Performance Improvement Program, 

however, continue with the revised approach. Moreover, Optum’s policies continue to violate 

ERISA for the same reasons. 

128. Optum’s pre-certification requirement which it imposes on Tier 2 providers is 

inconsistent with many of United’s ERISA plan documents which do not require preauthorization before a subscriber receives chiropractic services. Because the plan terms govern 

the benefits to be provided by United, its imposition of pre-authorization requirements on the 

providers is therefore in violation of ERISA. 

129. This conclusion is demonstrated by an appeal letter that was sent by one United 

Insured to the “United Healthcare Central Escalation Unit,” located in Salt Lake City, Utah, in 

May 2007. It states, in part: 

In April of this year I was denied chiropractic benefits by my insurance company, 

United Healthcare (UHC). In the benefits book it states that I’m “limited to 24 

visits per calendar year” . . . It also states that no prior notification is required. 

* * * * 

[The American Chiropractic Network (“ACN”), now Optum,] started interfering 

by requiring four pages of paperwork periodically throughout the year, annoying 

but doable. Then they required 3 pages of paperwork every time I went in for an 

adjustment. When I called to question this I was told by the ACN that I could 

continue to go to the chiropractor as long as the paperwork was filled out. Then 

they started to determine how many visits I could have and what time frame I was 

allowed to use the visits. The benefits book clearly states that no notification is 

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required . . ., but I have to get permission from the ACN for visits. Then if I can’t 

complete all visits in their timeline I’m out of luck. 

I can’t remember when the ACN started to interfere with my health care just that 

my quality of life has significantly declined since then. . . . I never receive any 

Explanation of Benefits (EOB) so I did not know that this was not reflected until I 

went to myuhc.com and looked up my claims. We pay over $2600 a year for 

health insurance. My husband’s company pays over $10,600 a year, together 

that’s over $13,000 a year for our healthcare. 

The ACN told me there is not an appeal process. It seems to me that they need a 

copy of the benefits book or better yet UHC needs to “trim the fat” by cutting out 

unnecessary organizations instead of my healthcare. . . . I find this decision [to 

deny me coverage for my care] to be in breach of contract. 

130. As this letter demonstrates, the pre-certification requirement imposed by Optum 

on Tier 2 providers is directly contrary with the health care plans of United Insureds that do not 

require pre-authorization. As such, by imposing pre-certification, Optum and United are 

violating ERISA. Similarly, as reflected in the letter, by using the pre-certification requirement to 

deny coverage for services, but then failing to treat such decisions as an adverse benefit 

determination, and then providing the proper disclosures and “full and fair” review under 

ERISA, Optum and United are similarly violating federal law. Moreover, Optum’s policies 

violate generally accepted standards of care in the insurance and utilization review industries, 

including those established through the Utilization Review Accreditation Commission 

(“URAC”) and its Health Utilization Management (UM) Standards. 

131. Defendants are fully aware that their policies are misleading and violate the terms 

of their health care plans. For example, the former Senior Director for Consumer Health at 

Optum, Stephen Bolles, DC, revealed United’s agenda toward shifting more cost to consumers 

during an interview for an online journal on May 12, 2006, entitled, Forum with United 

Healthcare/ACN - Consumerism Leader Bolles on the Inexorable Retailizing of Health Care. He 

stated: 

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Healthcare providers are going to have to learn how to be retailers. They will have 

to learn to speak in new ways and communicate new value propositions to 

consumers. . . . The brave new world is this. . . . [P]lans will have to begin 

communicating more clearly and honestly about what’s covered. Instead of 

saying, for instance, that they have an “open-ended” chiropractic benefit that 

starts with a certain number of visits and can be adjusted upward, depending, the 

plan will say: If it’s acute chiropractic condition, you get six visits.” Period. The 

plan will not get involved in the documentation tug-of-war with the provider to 

increase the number of covered visits. For providers and patients/consumers, this 

transparency will facilitate the transition to more retail, self-pay, cash-based 

purchasing decisions. 

132. Shortly after the interview was published, Dr. Bolles emailed the author to plead 

that he pull it from the site, stating: “John, I have run into a huge brick wall here with my 

comments and the interview. I have been informed that the interview ‘needs to come down’. I 

understand the journalistic implications on this. I am in very hot water. Please let me know your 

thoughts. Stephen.” Dr. Bolles’ job was at stake as a result of speaking the truth about United’s 

policies. He has since left his position with United. 

133. The Bolles’ interview reflects the disparity between what United (through Optum) 

is doing and what its plans provide. While its ERISA plans purport to give its subscribers an 

open-ended level of chiropractic services, based on medical necessity, or perhaps up to a 

specified number of visits (from 20 to 30 sessions), Optum’s undisclosed policies and procedures 

in fact limit care to “acute” conditions and for a limited number of sessions. These policies are 

therefore in clear violation of United’s obligations under ERISA, which require it to comply with 

plan terms. 

134. As detailed herein, United’s utilization procedures, as implemented through 

Optum, violate ERISA. They are used to allow United to avoid its ERISA obligations, including 

by denying health care benefits without complying with ERISA’s “full and fair” review 

requirement, and they serve to pressure providers improperly to reduce care that they would 

otherwise provide pursuant to United’s ERISA plans. 

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CLASS DEFINITIONS

135. The Individual Plaintiffs bring this action on their own behalf and on behalf of an 

“ERISA Class,” defined as: 

All healthcare providers (such as individual practitioners, durable medical 

equipment providers or facilities) who, from six years prior to the filing date of 

this action to its final termination (“ERISA Class Period”), provided healthcare 

services to patients insured under healthcare plans governed by ERISA and 

insured or administered by Defendants, and who, after having received payments 

from Defendants, were subjected to retroactive requests for repayment of all or a 

portion of such payments and/or to recoupments or coerced repayments of prior 

benefits. 

136. Premier Health and Drs. Sprandel, Hicks, Rodgers and O’Donnell (the 

“Individual Chiropractor Plaintiffs”) further bring this action on their own behalf and on behalf 

of an “ERISA Chiropractor Class,” defined as: 

All chiropractic physicians who, from six years prior to the filing date of this 

action to its final termination (“ERISA Class Period”), provided healthcare 

services to patients insured under healthcare plans governed by ERISA and 

insured or administered by Defendants, and whose claims were subjected to 

utilization review requirements imposed by United and/or Optum. 

137. The Individual Plaintiffs bring claims against Defendants on their own behalf and 

on behalf of the ERISA Class, and the Association Plaintiffs brings claims against Defendants in 

a representational capacity on behalf of their members, (1) to enjoin Defendants from continuing 

to compel return of prior payments of plan benefits; (2) to order Defendants to return to all Class 

members all funds, plus interest, that Defendants have withheld to offset the amounts demanded 

or that have been paid by Class members to Defendants in response to such demands; and (3) to 

declare that any future efforts to recoup payments for errors or mistakes in prior payments must 

comply with the specific requirements under ERISA for adverse benefit determinations. Further, 

the Individual Chiropractor Plaintiffs bring claims against United on their own behalf and on 

behalf of the ERISA Class, and the Association Plaintiffs brings claims against United in a 

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representational capacity on behalf of its members, to enjoin Defendants from (1) tiering 

providers based on statistical parameters, (2) denying treatment plans without regard to patients’ 

medical needs, (3) imposing pre-certification requirements on patient care without regard to the 

terms of the ERISA health care plans, and (4) threatening providers with being placed on a lower 

tier or potential loss of network participation if they do not defer to Optum’s demands by 

limiting care to patients, and to compel United and Optum to replace them with policies and 

procedures which comply with ERISA. 

COMMON CLASS CLAIMS, ISSUES AND DEFENSES FOR THE CLASS

138. The following common class claims, issues and defenses for the Plaintiffs and the 

ERISA Class arise for the defined Class Period: 

(1) Whether ERISA applies to Defendants’ efforts to compel repayment of 

previously paid benefits; 

(2) Whether Defendants’ recoupment of previously paid benefits based on 

offsets of new and unrelated claims violate ERISA; 

(3) Whether ERISA requires each Class member to prove exhaustion or other 

legal reason excusing exhaustion; 

(4) Whether Defendants’ actions with regard to Class members result in a 

waiver of any objection to the validity of any assignments that may have been given by United 

Insureds, or whether Defendants are otherwise estopped from asserting such an objection; 

(5) Whether Class members may recover amounts repaid to Defendants or 

unpaid benefits and if so, the amounts they should receive; 

(6) Whether Defendants’ failure to provide accurate plan documents, EOCs, 

SPDs and other information upon request entitles Class members to any relief; 

(7) Whether, in addition to unpaid benefits, interest should be added to the 

payment of unpaid benefits under ERISA; 

(8) Whether Defendants’ claims review procedures comply with ERISA; and 

(9) The standard of review applicable to evaluate Defendants’ benefit 

determinations under ERISA. 

139. The following common class claims, issues and defenses for the Plaintiffs and the 

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ERISA Chiropractor Class arise for the defined Class Period: 

(1) Whether Optum’s imposition of pre-certification requirements on doctors 

of chiropractic should be treated as pre-service claims and denials of benefit under ERISA; 

(2) Whether Optum’s imposition of pre-certification requirements on doctors 

of chiropractic violate ERISA where such requirements are not expressly incorporated into 

ERISA Plan documents; 

(3) Whether Defendants’ recoupment of previously paid benefits based on 

offsets of new and unrelated claims violate ERISA; 

(4) Whether ERISA requires each Class member to prove exhaustion or other 

legal reason excusing exhaustion; 

(5) Whether Defendants’ actions with regard to Class members result in a 

waiver of any objection to the validity of any assignments that may have been given by United 

Insureds, or whether Defendants are otherwise estopped from asserting such an objection; 

(6) What equitable relief is appropriate for Optum’s ERISA violations; 

(7) The standard of review applicable to evaluate Defendants’ benefit 

determinations. 

ADDITIONAL CLASS ACTION ALLEGATIONS

140. The members of the Classes are so numerous that joinder of all members is 

impracticable. Upon information and belief, the Class consists of, at a minimum, hundreds if not 

thousands of health care providers for the ERISA Class and doctors of chiropractic for the 

ERISA Chiropractor Class who provided services to United Insureds covered by commercial 

group health plans insured, offered, or administered by Defendants. The precise number of 

members in the Class is within Defendants’ custody and control. Based on reasonable estimates, 

the numerosity requirement of Rule 23 is easily satisfied for the Class. Common questions of law 

and fact exist as to all Class members and predominate over any questions affecting solely 

individual members of the Class, including the class action claims, issues and defenses listed 

above. 

141. The Individual Plaintiffs’ claims are typical of the claims of the Class members 

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because, as a result of the conduct alleged herein, Defendants have breached their statutory and 

contractual obligations to the Individual Plaintiffs and the Class through and by uniform patterns 

or practices as described above, including but not limited to their efforts to compel repayment of 

prior paid benefits and their forced recoupment through conversion or withholding of unrelated 

benefit payments. 

142. The Individual Plaintiffs will fairly and adequately protect the interests of the 

members of the Class, are committed to the vigorous prosecution of this action, have retained 

counsel competent and experienced in class action litigation and in the prosecution of ERISA 

claims and have no interests antagonistic to or in conflict with those of the Class. For these 

reasons, the Individual Plaintiffs are adequate class representatives under Fed. R. Civ. P. 23. 

143. The prosecution of separate actions by individual members of the Class would 

create a risk of inconsistent or varying adjudications that could establish incompatible standards 

of conduct for Defendants. 

144. A class action is superior to other available methods for the fair and efficient 

adjudication of this controversy because joinder of all members of the Class is impracticable. 

Further, because the unpaid benefits denied Class members may be relatively small, the expense 

and burden of individual litigation make it impossible for the Class members individually to 

redress the harm done to them. Defendants maintain computerized claims information that 

enables them to calculate unpaid amounts resulting from their benefit determinations for Class 

members. Given the uniform policy and practices at issue, there will also be no difficulty in the 

management of this litigation as a class action. 

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COUNT I

CLAIM FOR BENEFITS UNDER GROUP PLANS GOVERNED BY ERISA

(on behalf of Plaintiffs and the ERISA Class) 

145. The allegations contained in this Complaint are realleged and incorporated by 

reference as if fully set forth therein. Count I is brought under 29 U.S.C. § 1132(a)(1)(B). 

146. United must pay benefits to United Insureds, or to their providers pursuant to 

assignments, that are insured, funded or administered by United pursuant to the terms of their 

United Plans. 

147. To the extent United has determined that charges submitted for reimbursement on 

behalf of Plaintiffs and the members of the ERISA Class are no longer Covered Services under 

its health care plans, and to the extent United offsets benefits otherwise due and payable under an 

ERISA plan as a means to recoup funds that it deems to have been overpaid in the past, such a 

findings constitute “adverse benefit determinations” under ERISA. 

148. United sought to compel the Individual Plaintiffs and the members of the ERISA 

Class to repay previously paid benefits without complying with terms and conditions required by 

ERISA for dealing with adverse benefit determinations. 

149. United violated its legal obligations under ERISA and federal common law each 

time it denied benefits through the practices detailed herein without complying with ERISA’s 

requirements for dealing with adverse benefit determinations. 

150. United’s lack of disclosure to the United Insureds and Providers relating to 

adverse benefit determinations, as required under ERISA, violated its legal obligations. 

151. Due to United’s failure to comply with ERISA in pursuing recoupment efforts, it 

is estopped from pursuing such efforts and, further, is required to repay members of the ERISA 

Class any amounts: 1) paid to United in response to its recoupment demands; or 2) unilaterally 

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withheld by United in order to apply them to sums United demanded be repaid. 

152. ERISA precludes United’s recoupment efforts, as they do not satisfy the 

requirements for equitable restitution. 

153. Due to United’s failure to comply with ERISA in making the above-detailed 

adverse benefit determinations, United is estopped from making such findings and precluded 

from denying coverage without complying with ERISA. 

154. The Individual Plaintiffs, on their own behalf and on behalf of the members of the 

Class, seek unpaid benefits, interest back to the date their claims were originally submitted to 

United, withdrawal of all claims for rescission or other relief against Providers or members of the 

ERISA Class, and repayment of any amounts paid by or withheld from members of the ERISA 

Class in response to any such letters or demands. Plaintiffs, including the Association Plaintiffs, 

also sue for declaratory and injunctive relief related to enforcement of plan terms, and to clarify 

their rights to future benefits. Plaintiffs further request attorneys’ fees, costs, prejudgment 

interest and other appropriate relief against United. 

COUNT II

CLAIM FOR BENEFITS UNDER GROUP PLANS GOVERNED BY ERISA

(on behalf of All Plaintiffs, except Tri3 and BHSC, 

and the ERISA Chiropractor Class) 

155. The allegations contained in this Complaint are realleged and incorporated by 

reference as if fully set forth therein. Count II is brought under 29 U.S.C. § 1132(a)(1)(B). 

156. United must pay benefits to United Insureds, or to their providers pursuant to 

assignments, that are insured, funded or administered by United pursuant to the terms of their 

United Plans. 

157. To the extent United, through Optum, has refused to authorize services following 

pre-certification requirements and based on the application of flawed and improper policies 

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governing coverage for chiropractic services, such a determination constitutes an “adverse 

benefit determinations” under ERISA. 

158. United violated its legal obligations under ERISA and federal common law each 

time it denied benefits as detailed herein without complying with ERISA’s requirements for 

dealing with adverse benefit determinations. 

159. United’s lack of disclosure to the United Insureds and Providers relating to 

adverse benefit determinations, as required under ERISA, violated its legal obligations. 

160. Due to United’s failure to comply with ERISA in applying its pre-certification 

requirements, and in relying on invalid and improper policies governing coverage for 

chiropractic services, it is estopped from applying such policies and is precluded from denying 

coverage without complying with ERISA. Further, United should be ordered to disgorge the 

profits or fees it has earned by denying chiropractic services through the policies that were in 

violation of ERISA. 

161. Plaintiffs further request attorneys’ fees, costs, prejudgment interest and other 

appropriate relief against United. 

COUNT III

FAILURE TO PROVIDE FULL AND FAIR REVIEW AS REQUIRED BY ERISA

(on behalf of All Plaintiffs and the Classes) 

162. The allegations contained in this Complaint are realleged and incorporated by 

reference as if fully set forth herein. 

163. United functioned and continues to function as the “plan administrator” within the 

meaning of such term under ERISA, both directly and through its control over Optum. During 

the Class Period, Subscribers were entitled to receive a “full and fair review” of all claims denied 

by United, and entitled to assert a claim under 29 U.S.C. § 1132(a)(3) for failure to comply with 

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these requirements. 

164. Although United was obligated to do so, it failed to provide a “full and fair 

review” of denied claims pursuant to 29 U.S.C. § 1133 (and the regulations promulgated 

thereunder) for Plaintiffs and the Classes by making claims denials that are inconsistent with or 

unauthorized by the terms of Members’ EOCs and SPDs, as well as by failing to disclose its 

methodology and other critical information relating to such claims denials. 

165. By engaging in the conduct described herein, including using improper, invalid 

and undisclosed policies relating to the specified health care services, making baseless threats 

regarding overpayments and the pursuit of litigation, withholding payments for properly 

submitted claims to apply toward the demanded amount, and for effecting other systematic 

benefit reductions without disclosure or authority under the plans, United failed to comply with 

ERISA, its regulations and federal common law. 

166. As a result, United failed to provide a “full and fair review,” failed to provide 

reasonable claims procedures, and failed to make necessary disclosures to its Insureds. 

167. Appeals of Providers and members of the Classes should be deemed exhausted or 

excused by virtue, inter alia, of United’s numerous procedural and substantive violations. 

168. The failed appeals of the Individual Plaintiffs show the futility of exhausting 

appeals to United. Exhaustion of internal appeals under ERISA should, therefore, be deemed to 

be futile. 

169. During the Class Period, the Individual Plaintiffs and the members of the Classes 

have been harmed by United’s failure to provide a “full and fair review” of appeals under 29 

U.S.C. § 1133, and by its failure to disclose relevant information in violation of ERISA and the 

federal common law. All Plaintiffs and the members of the Classes are also entitled to injunctive 

and declaratory relief to remedy United’s continuing violation of these provisions. 

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COUNT IV

EQUITABLE RELIEF UNDER ERISA

(on behalf of All Plaintiffs and the Classes) 

170. The allegations contained in this Complaint are realleged and incorporated by 

reference as if fully set forth herein. 

171. United issued demand letters to Providers seeking to compel repayment of 

previously paid benefits, and forcibly recouped benefits from unrelated claims to apply toward 

the alleged overpayment, without any authority or validation, or sought to compel payment 

through lawsuits or other actions. Similarly, United, acting through Optum, imposed preauthorization requirements in contravention of ERISA plan terms, pressured providers to reduce 

benefits to United Insureds, and denied benefits without proper disclosures or provide a full and 

fair review of such denials. In so doing, United failed to comply with the terms and conditions of 

its healthcare plans, both those under ERISA and otherwise, with regard to making adverse 

benefit determinations. 

172. United has no legal basis upon which to pursue recoupment from Providers, the 

Individual Plaintiffs and other Class members, but is merely seeking to coerce payments for 

retrospective adverse benefits determinations. In addition, United also has no valid basis for 

imposing limits on chiropractic treatments based on flawed and invalid methodologies, or for 

using invalid pre-certification requirements based on invalid computer databases to deny 

coverage. 

173. Plaintiffs seek appropriate declaratory and injunctive relief (1) to enjoin United 

from pursuing its efforts to coerce recoupment or otherwise compel payment and, further, to 

order United to return any funds it has received or withheld from the Individual Plaintiffs and 

members of the Class as a result of its recoupment efforts, and (2) to enjoin United from 

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applying the Optum policies which violate ERISA and disgorge profits it has earned through 

improper benefit denials. 

WHEREFORE, Plaintiffs demand judgment in their favor against Defendants as 

follows: 

A. Certifying the Classes, as set forth in this Complaint, and appointing the 

Individual Plaintiffs as Class representatives. 

B. Declaring that United has breached the terms of its EOCs and SPDs and awarding 

unpaid benefits to the Individual Plaintiffs and the members of the Class, as well as awarding 

injunctive and declaratory relief to prevent United’s continuing actions detailed herein that are 

undisclosed and unauthorized by EOCs and SPDs; 

C. Declaring that United failed to provide a “full and fair review” to the Individual 

Plaintiffs and ERISA Class members under 29 U.S.C. § 1133, and awarding injunctive, 

declaratory and other equitable relief to ensure compliance with ERISA and its regulations; 

D. Declaring that United violated its disclosure and related obligations under ERISA 

and federal common law, for which all Plaintiffs and Class members are entitled to injunctive, 

declaratory and other equitable relief; 

E. Declaring that United violated federal claims procedures, and awarding 

declaratory and injunctive relief to remedy such violations; 

F. Ordering United to recalculate and issue unpaid benefits to Providers that were 

unpaid or underpaid as a result of United’s actions, as detailed herein, with interest; 

G. Enjoining United from continuing to pursue its recoupment efforts as detailed 

herein, and ordering it to pay proper benefits in the form of a return of any sums previously paid 

by or withheld from the Individual Plaintiffs and other Class members in response to United’s 

recoupment efforts, plus interest; 

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H. Enjoining United from continuing to apply the Optum policies that are applied to 

improperly reduce coverage for chiropractic services, and ordering to disgorge the profits it has 

earned by denying such coverage through its actions taken in violation of ERISA, plus interest; 

I. Awarding Plaintiffs disbursements and expenses of this action, including 

reasonable counsel fees, in amounts to be determined by the Court; and 

J. Granting such other and further relief as is just and proper. 

CARELLA, BYRNE, CECCHI, 

OLSTEIN, BRODY & AGNELLO 

Attorneys for Plaintiffs 

By: /s/ James E. Cecchi 

 JAMES E. CECCHI 

Dated: April 22, 2011 

D. Brian Hufford 

Robert J. Axelrod 

Murielle Steven Walsh 

Susan J. Weiswasser 

Anthony F. Maul 

POMERANTZ HAUDEK 

 GROSSMAN & GROSS LLP 

100 Park Avenue 

New York, NY 10017 

212.661.1100 

Vincent N. Buttaci 

John W. Leardi 

BUTTACI & LEARDI, LLC 

103 Carnegie Center, Ste. 101 

Princeton, NJ 08540 

609.799.5150 

Kim Driggers 

BROOKS, LeBOEUF, BENNETT, 

FOSTER & GWARTNEY, P.A. 

909 East Park Avenue 

Tallahassee, FL 32301 

850.222.2000 

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Jeffrey A. Leon 

Paul Y. Cho 

FREED & WEISS LLC 

111 West Washington Street, Suite 1331 

Chicago, IL 60602 

312.220.0000 

Geordie Mcgonagle 

Dave Spencer 

McGONAGLE SPENCER, P.C. 

1533 Locust Street 

Kansas City, MO 64108 

816.221.2222 

Bradford D. Barron 

GIBBON, BARRON & BARRON, P.L.L.C. 

20 East 5th Street, Suite 1000 

Tulsa, OK 74103 

918.745.0687 

Counsel for Plaintiffs and the Putative Classes 

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