Z. et al v. Priority Health Managed Benefits et al

Filing 29

ORDER Granting Defendant Priority Health Managed Benefits, Inc's Motion to Dismiss #9 . Signed by District Judge Denise Page Hood. (LSau)

Case 2:22-cv-10007-DPH-APP ECF No. 29, PageID.233 Filed 05/22/23 Page 1 of 20

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK Z. and M.Z.,
Plaintiffs,
v.

Case No. 22-10007
Hon. Denise Page Hood

PRIORITY HEALTH MANAGED
BENEFITS, INC. and THE MICHIGAN
DENTAL ASSOCIATION HEALTH PLAN,
Defendants.
_______________________________/
ORDER GRANTING DEFENDANT PRIORITY HEALTH
MANAGED BENEFITS, INC.’s MOTION TO DISMISS [ECF No. 9]
I.

INTRODUCTION
This lawsuit arises out Plaintiff’s claims that Defendants: (1) wrongfully

denied them benefits under 29 U.S.C. §1001 et. seq., the Employee Retirement
Income Security Act of 1974 (“ERISA”), specifically, 29 U.S.C. §1132(a)(1)(B);
and (b) violated the Mental Health Parity and Addiction Equity Act of 2008
(“MHPAEA”), specifically, 29 U.S.C. §1132(a)(3). Defendant Priority Health
Managed Benefit, Inc. (“PHMB”) has filed a Motion to Dismiss, ECF No. 9, which
has been fully briefed. For the reasons that follow, the Motion to Dismiss is
granted.
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II.

BACKGROUND
Defendant The Michigan Dental Association Health Plan (“MDA”) is a self-

funded employee welfare benefits plan under ERISA, and MDA has a self-funded
group health insurance plan (the “Plan”). PHMB is a third-party administration
company, and it was the claims administrator for the Plan with respect to the
claims filed by Plaintiffs in this case.
On October 1, 2014, MDA agreed to contract with PHMB as the third-party
administrator for the Plan. See ECF No. 9, Ex. A (Administrative Services
Agreement) (the “Agreement”). The Agreement provides that MDA is “solely
responsible to determine the design of the Plan, including the benefits to be
provided, eligibility for coverage, and the funding method to be used for the Plan.”
Id. at 2. The Agreement further provides that MDA’s Board of Trustees is the plan
administrator and named fiduciary under ERISA.

MDA retained “the

responsibility and discretionary authority to decide all questions of eligibility and
entitlement to benefits and determine the amount . . . of payment of benefits . . .
and interpret the provisions of the Plan for purposes of resolving any inconsistency
or ambiguity, correcting any error or supplying information to correct any omitted
term.” Id. at 2. MDA also “retain[ed] sole discretionary authority to make final

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determinations concerning eligibility and entitlement to benefits pursuant to any
claim.” Id. at 4.
The Agreement states, “[PHMB] as a third party administrator merely
processes claims and does not insure that any medical expenses of individuals
covered by the Plan will be paid.” Id. at 3. PHMB is bound to “strictly follow the
terms of the Plan.” Id. at 4-5. The Agreement expressly states that PHMB is not a
fiduciary or administrator of the Plan. See id. at 8-9 (“Not a Fiduciary. [PHMB] is
not the Plan Administrator or administrator as defined in ERISA.”). Under the
Agreement, PHMB served as an independent contractor, carrying out the terms and
conditions of the Plan as defined by MDA. Id. at 14. at 14, 16-17.

T h e

Plan requires prior certification for some services, including “[a]ll inpatient
services (including inpatient hospice services, inpatient mental health services and
inpatient substance use disorder services).” ECF No. 9, Ex. B at 18. But,
If required prior certification is not obtained, the Benefit
Administrator [PHMB] will review the claim after you receive the
services.
If it is determined that the care received was
medically/clinically necessary and appropriate, the care will be
covered and a penalty may be applied. If it is determined that the care
received was not medically/clinically necessary and appropriate, the
charges will not be covered.
Id.
The Plan expressly excluded certain services, including the following:
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Mental Health Services. The following services are not covered:
 Care provided in . . . wilderness therapy programs; . . .
*****
Not Medically/Clinically Necessary. Services and supplies that we
determine are not medically/clinically necessary according to medical
and behavioral health policies established by the Benefit
Administrator . . .
Id. at 37.
Plaintiff Mark Z. was a participant in the Plan, and his daughter, M.Z., was a
beneficiary of the Plan at all relevant times. Plaintiffs are residents of Washtenaw
County, Michigan. M.Z. was struggling at school, home, and in the community,
and Mark Z. enrolled her at a wilderness therapy program at Evoke at Entrada in
the state of Utah in July 2018. ECF No. 1, PageID.2-3 (¶¶ 1, 4). Evoke at Estrada
is a licensed wilderness therapy program located in Utah which provides sub-acute
short-term stabilization and assessment for adolescents with mental health,
behavioral, and/or substance abuse problems. Id. at ¶ 4. M.Z. began residential
treatment there on July 20, 2018 and was discharged on October 23, 2018. Id. at ¶
4.
Plaintiffs did not seek prior certification before M.Z. began her stay at
Evoke at Entrada. On January 11, 2019, PHMB denied coverage on the basis that
wilderness therapy programs were not a covered benefit under the terms of the
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Plan. Id. at ¶ 23. Plaintiffs appealed this decision, and on May 2, 2019, PHMB
wrote and maintained its denial of coverage. Id. at 28.
Following her discharge from Evoke at Entrada, M.Z. enrolled at Vista Sage,
and she was there from October 24, 2018 through May 9, 2019. Id. at ¶¶ 4, 31.
Vista Sage is a licensed residential treatment program, also located in Utah, that
provides sub-acute inpatient treatment for adolescent girls with mental health,
behavioral, and/or substance abuse problems. Id. at ¶ 4. On November 20, 2018,
PHMB wrote and denied coverage on the basis that M.Z. did not meet the Plan’s
guidelines for medical necessity of residential treatment. PHMB stated that M.Z.
was: (a) “not exhibit[ing] any active mood, anxiety, or psychotic symptoms;” (b)
was not “suicidal, homicidal, or psychotic;” (c) was not experiencing active
withdrawal symptoms; and (d) could be effectively treated on an outpatient basis.
Id. at ¶¶ 31, 32. PHMB also concluded that the treatment provided to M.Z. at Vista
Sage was in a “luxury treatment program,” which it determined was excluded from
coverage under the Plan. Id.
Plaintiffs appealed that decision, but on May 2, 2019, PHMB maintained its
denial of coverage for the Vista Sage program. PHMB based its denial of coverage
on the following: (a) Vista Sage was a luxury treatment program providing
treatment that was not evidence based; (b) M.Z’s condition did not meet the
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medical necessity criteria; and (c) PHMB claimed Plaintiffs failed to obtain prior
approval before M.Z.’s admission to Vista Sage. Id. at ¶42.
III.

APPLICABLE LAW
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the

plaintiff’s complaint. Accepting all factual allegations as true, the court will review
the complaint in the light most favorable to the plaintiff. Eidson v. Tennessee
Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). As a general rule, to
survive a motion to dismiss, the complaint must state sufficient “facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). The complaint must demonstrate more than a sheer
possibility that the defendant’s conduct was unlawful.

Id. at 556. Claims

comprised of “labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Id. at 555. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
IV.

ANALYSIS
PHMB contends that it is not a fiduciary for purposes of ERISA because it

had no discretion or control over the Plan, so it is not liable for any violations of
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ERISA. Plaintiffs do not challenge PHMB’s assertion that it is not the plan
administrator or fiduciary as defined under § 1002(21)(A) of ERISA.1 Plaintiffs
insist that the issue before the Court is whether PHMB made the final adverse
decision regarding Plaintiffs’ claims(s), which would make PHMB a proper
defendant because it was the final decisionmaker when it “denied coverage and the
subsequent appeals thereof.” (citing ECF No. 9, PageID.18)).
A. Final Adverse Benefit Determination
The parties agree that an ERISA fiduciary is defined “not in terms of formal
trusteeship, but in functional terms of control and authority over the plan.” ECF
No. 9, PageID.23 (citing Mertens v. Hewitt Assocs., 508 U.S. 248, 262 (1993)).
“Control and authority” is critical in interpreting ERISA’s definition of fiduciary,
which states in relevant part:
 Plaintiffs

1

state in their response brief:

Plaintiffs agree that “MDA’s Board of Trustees is the plan administrator and named
fiduciary under ERISA.” (ECF No. 9, PageID.19). Further, PHMB is not an insurer
and “as a third party administrator merely processes claims and does not insure that
any medical expenses of individuals covered by the Plan will be paid.” (ECF No. 9,
PageID.19). We agree that the Administrative Services Agreement (“ASA”) between
PHMB and Defendant Michigan Dental Association Health Plan (MDA Plan) further
states that even though the ASA names PHMB the fiduciary for administering the
claim appeal procedures under the plan, PHMB is bound to “strictly follow the terms
of [MDA’s] Plan.” (ECF No. 9, PageID.19). And we agree that PHMB is not a plan
administrator, has no discretionary authority regarding the MDA Plan whatsoever,
and that the MDA Plan administrator (not PHMB) “retains the ‘sole discretionary
authority to make final determinations concerning eligibility and entitlement to
benefits pursuant to any claim.’” (ECF No. 9, PageID.19-20).
ECF No. 18, PageID.194-95.
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[A] person is a fiduciary with respect to a plan to the extent (i) he
exercises any discretionary authority or discretionary control
respecting management of such plan or exercises any authority or
control respecting management or disposition of its assets . . . or (iii)
he has any discretionary authority or discretionary responsibility in
the administration of such plan.
29 U.S.C. §1002(21)(A).
The Sixth Circuit has stated:
According to ERISA, a plan “fiduciary” is one who “exercises
any discretionary authority or discretionary control respecting the
management of [an ERISA] plan or exercises any authority or control
respecting the management or disposition of its assets” or who “has
any discretionary authority or discretionary responsibility in the
administration of such plan.” 29 U.S.C. § 1002(21)(A). This Court has
found that “the definition of a fiduciary under ERISA is a functional
one, [and] is intended to be broader than the common-law definition”
such that the issue of whether one is considered a fiduciary does not
turn upon formal designations. Smith v. Provident Bank, 170 F.3d
609, 613 (6th Cir.1999). Therefore, for purposes of ERISA, a
“fiduciary” not only includes persons specifically named as fiduciaries
by the benefit plan, but also anyone else who exercises discretionary
control or authority over a plan's management, administration, or
assets. See Mich. Affiliated Healthcare Sys., Inc. v. CC Sys. Corp. of
Mich., 139 F.3d 546, 549 (6th Cir.1998).
Under ERISA a person is a fiduciary only with respect to those
aspects of the plan over which he or she exercises authority or control.
See Grindstaff v. Green, 133 F.3d 416, 426 (6th Cir.1998). When an
insurance company administers claims for employee welfare benefit
plans and has authority to grant or deny claims, the insurance
company is a “fiduciary” for ERISA purposes. See
Libbey–Owens–Ford Co. v. Blue Cross & Blue Shield Mut. of Ohio,
982 F.2d 1031, 1035 (6th Cir.1993). An employer who does not
control or influence the decision to deny benefits is not the fiduciary
with respect to denial of benefit claims. Chiera v. John Hancock Mut.
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Life Ins. Co., 3 Fed.Appx. 384, 389 (6th Cir.2001) (unpublished
decision) (“Defendant [insurance company] is a fiduciary for purposes
of ERISA inasmuch as it had a role in administering the plan because
it had authority to accept or reject claims for losses under the group
insurance policy as evidenced by the rejection letter that it sent to
Plaintiff in response to her attorney's letter.”)[.]
Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 438 (6th Cir. 2006)
1. Discretionary Authority or Control of Management of Plan
Discretionary Authority or Responsibility in Administration of Plan
It is undisputed that “PHMB is not a plan administrator, [and] has no
discretionary authority regarding the [Plan] whatsoever.” ECF No. 18, PageID.195.
PHMB bases its motion on the absence of discretion when making benefit
determinations, stating:
Since discretion is the key to unlocking claims for benefits under
ERISA, it should come as no surprise that the Sixth Circuit has long
held that a third-party administrator functioning as nothing more than
a claims processor cannot be an ERISA fiduciary.
ECF No. 9, PageID.23 (citing Baxter v. C.A. Muer Corp., 941 F.2d 451, 455 (6th
Cir. 1991)).
Plaintiffs argue that PHMB places undue reliance on the formalities of the
Agreement, rather than acknowledging its functional role in the claims process.
Plaintiff insists that Baxter did not involve a case where the third-party
administrator made a final adverse decision under ERISA, but instead was a case
where the court focused on a failure of the participant to exhaust administrative
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remedies. In Baxter, the plan required the participant “to request a review upon
written application to the Company or the Plan Supervisor.” Id. at 454. Plaintiff
maintains that, if the participant in Baxter had followed plan procedures, the final
decision would have been made by the plan administrator, not the third-party
administrator. Plaintiffs then assert that, because PHMB, acting as the claims
administrator, made the final adverse decision regarding Plaintiffs’ claims, it was
irrelevant that MDA retained the right to construe the Plan because MDA (the plan
administrator) would not have made the final decision.
For those reasons, Plaintiffs contend that Baxter stands for the proposition
that the party making the final adverse decision is a proper defendant. But, a
review of Baxter reveals that no such rule was set forth by the Baxter court.
Another Sixth Circuit case cited by Plaintiffs, Moore v. Lafayette Life Ins. Co., 458
F.3d 416 (6th Cir. 2006), also does not set forth such a rule. In Moore, the thirdparty administrator and the employer agreed that the third-party administrator
“exercised full authority in adjudicating Plaintiff’s claim for benefits.” Id. at 438.
For that reason, the Moore court held that “[i]t was the [third-party administrator
who made a decision with respect to Plaintiff’s benefits, not [the plan
administrator]. [The third-party administrator], and not [the plan administrator] is
therefore the proper party defendant for a denial of benefits claim by Plaintiff.” Id.
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(citing Kennard v. Unum Life Ins. Co., No. 01-217-B-K, 2002 WL 412067, at **13 (D.Me. Mar. 14, 2002) (unpublished opinion) (dismissing employer from
benefits suit when insurance company, not employer, made benefit decisions.). For
that reason, the Sixth Circuit concluded that the “district court did not err in
dismissing [the plan administrator] from Plaintiff’s suit for benefits.” Moore, 458
F.3d at 438. See also Van Loo v. Cajun Operating Co., 64 F.Supp.3d 1007, 1015
(E.D. Mich. 2014) (citing Moore) (“the proper defendant to a denial of benefits
claim is the party who exercised final authority over the claims determination.”).
In Van Loo, however, although the plan named the employer as plan administrator,
it also stated:
[Third party administrator] shall serve as the claims review fiduciary
with respect to the insurance policy and the Plan. The claims review
fiduciary has the discretionary authority to interpret the Plan and the
insurance policy and to determine eligibility for benefits. Decisions by
the claims review fiduciary shall be complete, final and binding on all
parties.
Id. at 1015-16.
Plaintiffs’ argument (and, for that matter, Defendant’s argument) fails to
address the critical differences between this case and Moore and Van Loo,
respectively. In Moore, the third-party administrator was the insurance company
that provided the insurance plan in dispute to the employer – the employer did not
operate its own self-funded health plan. See Moore, 458 F.3d at 424 (“Lafayette
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[the third-party administrator] became MTA’s [the plan administrator] provider of
group life and disability insurance in March 1996.”). Under those facts, it is
logical that the third-party administrator was the entity that had authority and
discretion to determine claims – it was interpreting the very policy upon which the
claim was based.
In Van Loo, the third party administrator served “as the claims review
fiduciary . . . [for] the Plan . . . , ha[d] . . . discretionary authority to interpret the
Plan and . . . determine eligibility for benefits [and its] [d]ecisions [were] complete,
final and binding on all parties.” Van Loo, 64 F.Supp.3d at 1015-16. Unlike this
case, the third party administrator expressly was: (a) identified as the fiduciary; and
(b) granted full discretion and control over interpretation and determinations under
the plan.
As PHMB argues, the critical issue before the Court is whether PHMB had
any discretion over the Plan, which Plaintiffs concede PHMB does not. As the
Agreement does not afford PHMB discretion, the Court finds MDA “did no more
than rent the claims processing department of [PHMB] to review claims and
determine the amount payable in accordance with the terms and conditions of the
Plan.” Baxter, 941 F.2d at 455 (quoting Baker v. Big Star Div. of the Grand Union
Co., 893 F.2d 288 (11th Cir. 1989)). The fact that the Agreement expressly
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provides that PHMB is not the fiduciary and MDA, not PHMB, retains the “sole
discretionary authority to make final determinations concerning eligibility and
entitlement to benefits pursuant to any claim,” ECF No. 9, Ex. A at ¶ 4,
distinguishes this case from Moore and Van Loo. The Court also notes that neither
of these cases reference a “final adverse decision,” and Plaintiffs do not cite any
authority that supports their “final adverse decision” proposition.
This Court concludes, as the Baxter court did, that a third-party
administrator’s “duties under the plan were limited to processing claims and
providing administrative services. Because [PHMB] was not a plan fiduciary, it
was not a party from which [Plaintiffs] could recover under ERISA.” Baxter, 941
F.2d at 453.
2. Authority and Control over Plan Assets
Plaintiffs also assert that PHMB is a proper defendant because PHMB’s final
adverse benefit decision regarding Plaintiffs’ claims means that PHMB asserted
authority and control over Plan assets. ECF No. 18, PageID.199.

Plaintiffs

disagree with PHMB’s reliance on Briscoe v. Fine, 444 F.3d 478, 490 (6th Cir.
2006), for the proposition that a third-party claims administrator “could not be an
ERISA fiduciary where the administrative services agreement did not give
‘discretionary authority over plan management.’” ECF No. 9, PageID.24 (quoting
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Briscoe, 444 F.3d at 490).

Plaintiffs contend that the next section of Briscoe

controverts PHMB’s argument because Briscoe provides that a claims
administrator with no discretionary authority can be an ERISA fiduciary if it
exercises any control over plan assets. Citing Briscoe, 444 F.3d at 490-95,
specifically, the following passage:
The district court therefore erred in requiring, as a condition of
fiduciary responsibility, that the type of authority that PHP exercised
over the plan assets had to be "discretionary." This confusion stems
from the differing language in two adjacent clauses of ERISA's
definition of "fiduciary." Under one clause, a person is a fiduciary to
the extent that he or she "exercises any discretionary authority or
discretionary control" over the management of the ERISA plan. 29
U.S.C. § 1002(21)(A)(i) (emphasis added). The second part of the
same sentence, however, confers fiduciary status upon a person to the
extent that he or she "exercises any authority or control respecting
management or disposition of [the plan's] assets." Id. (emphasis
added). We will presume under prevailing canons of statutory
construction that Congress's omission of the word "discretionary" in
the second part of the sentence was intentional, and that the threshold
for acquiring fiduciary responsibilities is therefore lower for persons
or entities responsible for the handling of plan assets than for those
who manage the plan. See, e.g., Keene Corp. v. United States, 508
U.S. 200, 208, 113 S. Ct. 2035, 124 L. Ed. 2d 118 (1993) ("Where
Congress includes particular language in one section of a statute but
omits it in another . . ., it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.")
(alteration in original) (citation and quotation marks omitted).
Briscoe, 444 F.3d at 491. The Briscoe court ultimately held “that PHP exercised at
least partial control over plan assets and, to the extent that it did so, qualifies as a
fiduciary.” Id. at 494-95. For this reason, Plaintiffs argue that the crux of the
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Court’s analysis should not be whether the claims administrator had discretionary
authority, but whether it “exercised at least partial control over plan assets.” Id.
PHMB contends that the third-party administrator in Briscoe “exercised
control over the assets of the Company’s healthcare plan still in [the third-party
administrator’s] possession when the Company became insolvent.” Briscoe, 444
F.3d at 491-92. The Court agrees. Unlike in Briscoe, where the third-party
administrator’s “unilateral disposition of funds held in an account over which it
exerted control ma[de] it a fiduciary to the extent that it exercised such control
upon the termination of its relationship with the” plan administrator, Briscoe, 444
F.3d at 490, there is no indication that PHMB exercised any control “over an
ERISA plan’s money” vis a vis MDA with respect to the Plan. Briscoe, 444 F.3d at
494. The Agreement expressly provides that PHMB is “not . . . trustee of any
assets associated with the Plan,” ECF No. 9, Ex. A at 4, and Plaintiffs have not
alleged how or why PHMB had control of the Plan’s assets.
3. Conclusion
For the reasons stated above, the Court grants PHMB’s Motion to Dismiss with
respect to Plaintiffs’ ERISA claim against PHMB.
B.

MHPAEA Claim

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Plaintiffs allege that PHMB violated the MHPAEA because it PHMB applied
more stringent criteria in evaluating the mental health and substance use disorder
claims at issue in this case than it would have for analogous medical/surgical
claims.
MHPAEA “prevents insurance providers from writing or enforcing group
health plans in a way that treats mental and medical health claims differently.”
Christine S. v. Blue Cross Blue Shield of N.M., 428 F. Supp. 3d 1209, 1219 (D.
Utah 2019) (emphasis added) (citations omitted). Violations of MHPEA can arise
from the plan documents "as written and in operation." 29 C.F.R. §
2590.712(c)(4)(i); see also Anne M. v. United Behavioral Health, No. 2:18cv00808-HCN-DAO, 2020 U.S. Dist. LEXIS 159453, at *9 (D. Utah Aug. 31,
2020).
Plaintiffs contend that PHMB, as part of the operation of its claim procedures,
caused the distinct harm from evaluating mental health/substance use disorder
claims more strictly than analogous medical/surgical claims.

For that reason,

Plaintiffs claim that PHMB is subject to equitable remedies the Court may order
upon a finding that Plaintiffs prevail on their (yet to be filed) dispositive motion.
Those remedies would include declaratory and injunctive relief that are typically
available in equity. See Dobbs, D.B. and Roberts, C.L., Law of Remedies at 49
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(3rd ed. 2018) (noting that “[t]he most common equitable remedies are coercive”
and “[t]he most general term for a coercive remedy is an injunction”); see also id.
at 51 (describing “declaratory judgment” as an equitable remedy “injunctive in
form but
declaratory in effect”). Plaintiffs conclude that PHMB’s actions as it related to the
denied benefits claim as well as its role in the MHPAEA violations demonstrate
that PHMB’s motion to dismiss should be denied.
PHMB first notes that is not a fiduciary under the Agreement and therefore is
not liable for the breaches of fiduciary duty Plaintiffs allege in Court II. PHMB
insists that MDA is responsible for the terms and conditions of the Plan, both as
written and in its operation, under 29 C.F.R. § 2590.712(c)(4)(i). PHMB asserts
there is no disparity demonstrated by the Plan’s documents either as written or
enforced.
“A claim is plausible on its face if the ‘plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ctr. for Bio-Ethical Reform v. Napolitano, 648 F.3d 364, 369
(6th Cir. 2011) (quoting Iqbal, 556 U.S. at 678). But, PHMB argues, there is no
reasonable inference which may be drawn that PHMB is liable under the Plan as
MDA retains exclusive control and authority over the Plan.
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The Court also finds significant the fact that the Plan requires utilization review
for admission to any acute or sub-acute in-patient treatment. The Plan does not
distinguish between facilities for mental health benefits or medical and surgical
benefits. The Plan requires prior certification for all inpatient services, no matter
what kind of facility it is. PHMB further asserts that its role in this process was to
receive Plaintiffs’ retroactive claims for benefits, which were not prior certified
(there seems to be some ambiguity whether prior certification was sought for the
Vista Sage program).

As PHMB states, both of Plaintiffs’ claims (for her

treatment at Evoke at Estrada and Vista Sage) were explicitly precluded by the
terms of the Plan (wilderness therapy programs and luxury treatment programs are
listed exclusions). As it did not have discretion to interpret the Plan, PHMB did
not possess discretion to deviate from those terms, amend those terms, or enforce
those terms differently, and the parties agree on that point.

As there is no

disagreement regarding PHMB’s discretion, the MHPAEA claim against PHMB is
dismissed.
V. CONCLUSION
For the reasons stated above,
IT IS ORDERED that PHMB’s Motion to Dismiss [ECF No. 9] is GRANTED.

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IT IS FURTHER ORDERED that Plaintiffs’ cause of action is DISMISSED
WITH PREJUDICE with respect to PHMB only.
IT IS FURTHER ORDERED that Plaintiff’s cause of action against MDA
REMAINS PENDING.
Dated: May 22, 2023
s/Denise Page Hood
DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE

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