Weissman v. UnitedHealthcare Insurance Company

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

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KATE WEISSMAN,

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Plaintiff,

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v.

* Civil Action No. 1:19-cv-10580-ADB

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UNITED HEALTHCARE INSURANCE

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COMPANY, UNITED HEALTHCARE

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SERVICE, LLC, and INTERPUBLIC GROUP

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OF COMPANIES, INC., CHOICE PLUS

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PLAN,

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Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS

BURROUGHS, D.J.

Plaintiff Kate Weissman (“Weissman”) brings claims against UnitedHealthcare Insurance

Company, UnitedHealthcare Service, LLC (collectively, “UnitedHealthcare”), and Interpublic

Group of Companies, Inc. Choice Plus Plan (the “IPG Plan”) (collectively, “Defendants”) on

behalf of a putative class of individuals with ERISA-governed healthcare plans administered by

UnitedHealthcare who had their requests for coverage for proton beam therapy denied after

UnitedHealthcare determined that the treatment was “experimental,” “investigational,” or

“unproven.” [ECF No. 1 (“Compl.”) ¶ 40]. Weissman filed her action under 29 U.S.C.

§ 1132(a)(3) and also seeks attorneys’ fees under 29 U.S.C. § 1132(g). [Id. ¶¶ 53–60].

Presently before the Court is Defendants’ motion to dismiss for failure to state a claim,

under Federal Rule 12(b)(6). [ECF No. 22]. For the reasons explained below, the motion to

dismiss, [ECF No. 22], is GRANTED without prejudice.

I. FACTS AS ALLEGED

The following facts are drawn from the complaint, [Compl.], the well-pleaded allegations

of which are taken as true for the purposes of evaluating the motion to dismiss. See Ruivo v.

Well Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014). This action follows Weissman’s proton

beam therapy treatment for cervical cancer. At the time of her treatment, Weissman was

employed by IPG and a member of the IPG plan, which was administered by UnitedHealthcare.

[ECF No. 28 at 8].

In October 2015, Weissman, who was thirty years old at the time, was diagnosed with

Stage IIB cervical cancer. [Compl. ¶ 19]. Over the next few months, she underwent traditional

chemotherapy treatment, including “cisplatin, pelvic radiation, and tandem and ovoid

brachytherapy,” which she completed in December 2015. [Id.]. It was determined that the

treatment had been ineffective after a PET/CT scan in March 2016 found cancerous cells in two

of Weissman’s lymph nodes. [Id. ¶ 20].

After a surgery, Weissman was referred to a team of specialists from the Harvard

Medical School, Department of Radiation Oncology at Massachusetts General Hospital and the

Dana-Farber Cancer Institute. [Id. ¶ 21]. Her treatment team determined that proton beam

therapy, in conjunction with cisplatin and radiation, would be the most effective treatment. [Id.].

The team noted that the cancerous lymph nodes were located between Weissman’s kidneys and

near her small bowel, such that traditional intensity-modulated radiation therapy could cause

bowel toxicity. [Id.]. Additionally, because Weissman had already received chemotherapy, the

team was concerned about possible damage to her bone marrow. [Id.]. Her treatment team

contacted UnitedHealthcare to request prior authorization for the proton beam therapy. [Id.

¶ 22].

Proton beam therapy uses proton beams to destroy cancerous tissue. [Id. ¶ 14]. Medical

providers are able to narrowly target the cancerous tissue and thereby minimize potential damage

to healthy tissue surrounding the cancerous cells. [Id. ¶ 15]. This therapy is approximately twice

as expensive as traditional intensity-modulated radiation therapy. [Id. ¶ 16].

On April 6, 2016, UnitedHealthcare denied Weissman’s request for coverage for the

proton beam therapy treatment. [Id. ¶ 23]. UnitedHealthcare explained to Weissman that, “You

have cervix cancer. We looked at your health plan medical criteria for radiation therapy. This

treatment does not meet criteria for coverage. It has not been proven that this treatment is more

effective than standard radiation for your medical condition.” [Id. ¶ 24].

Policy No. T0132 provides UnitedHealthcare’s position on coverage for proton beam

therapy and reads as follows:

Proton beam radiation therapy is proven and medically necessary for the following

indications:

• Intracranial arteriovenous malformations (AVMs)

• Ocular tumors, including intraocular/uveal melanoma (includes the iris, ciliary

body and choroid)

• Skull-based tumors (e.g., chordomas, chondrosarcomas or paranasal sinus tumors)

Proton beam radiation therapy is unproven and not medically necessary for treating

ALL other indications . . . .

[ECF No. 23-2 at 3]. The Policy then provides a discussion of specific treatments, including a

review of clinical evidence and the opinions of professional societies. See [ECF No. 23-2 at 6–

20]. The Policy also notes that it should be understood as a guide for patients and is not, itself, a

coverage document. It states:

This Medical Policy provides assistance in interpreting UnitedHealthcare benefit

plans. When deciding coverage, the enrollee specific document must be referenced.

The terms of an enrollee’s document (e.g. Certificate of Coverage (COC) or

Summary Plan Description (SPD) and Medicaid State Contracts) may differ greatly

from the standard benefit plans upon which this Medical Policy is based. In the

event of a conflict, the enrollee’s specific benefit document supersedes this Medical

Policy.

[Id. at 2].

Under the terms of the plan itself, the Defendants’ do not provide coverage for certain

excluded “treatments or supplies[,] even if they are recommended or prescribed by a provider or

are the only available treatment for [a member’s] condition,” including for “Experimental or

Investigational Services and Unproven Services.” [Compl. ¶ 10]. The Glossary defines

“Experimental or Investigational Services” as any services, technologies, treatment, procedure,

medication, or device that,

at the time the Claims Administrator and the Plan Administrator make a

determination regarding coverage in a particular case, are determined to be any of

the following:

 Not approved by the U.S. Food and Drug Administration (FDA) to be

lawfully marketed for the proposed use and not identified in the American

Hospital Formulary Service or the United States Pharmacopeia Dispensing

Information as appropriate for the proposed use.

 Subject to review and approval by any institutional review board for the

proposed use. (Devices which are FDA approved under the Humanitarian

Use Device exemption are not considered to be Experimental or

Investigational.)

 The subject of an ongoing Clinical Trial that meets the definition of a Phase

I, II or III Clinical Trial set forth in the FDA regulations, regardless of

whether the trial is actually subject to FDA oversight.

[Id.]. The Plan provides an exception for instances in which “the Plan has agreed to cover them

as defined in” the Glossary. [Id.].

Exceptions:

 Clinical Trials for which Benefits are available as described under Clinical

Trials in Section 6, Additional Coverage Details.

 If you are not a participant in a qualifying Clinical Trial as described under

Section 6, Additional Coverage Details, and have a Sickness or condition

that is likely to cause death within one year of the request for treatment, the

Claims Administrator and the Plan Administrator may, at their discretion,

consider an otherwise Experimental or Investigational Service to be a

Covered Health Service for that Sickness or condition. Prior to such

consideration, the Claims Administrator and the Plan Administrator must

determine that, although unproven, the service has significant potential as

an effective treatment for that Sickness or condition.

[Id.].

The Plan defines Unproven Services as

health services, including medications that are determined not be effective for

treatment of the medical condition and/or not to have a beneficial effect on health

outcomes due to insufficient and inadequate clinical evidence from well-conducted

randomized controlled trials or cohort studies in the prevailing published peer-

reviewed medical literature.

 Well-conducted randomized controlled trials are two or more treatments

compared to each other, with the patient not being allowed to choose which

treatment is received.

 Well-conducted cohort studies from more than one institution are studies in

which patients who receive study treatment are compared to a group of

patients who receive standard therapy. The comparison group must be

nearly identical to the study treatment group.

[Id.]. In addition, UnitedHealthcare reviews clinical evidence and issues policies that outline

clinical evidence available to health care services. [Id.]. If a member has a life-threatening

condition that is likely to cause death within one year of the member’s request for treatment,

UnitedHealthcare may, at its discretion, “consider an otherwise Unproven Service to be a

Covered Health Service for that Sickness or condition.” [Id.].

Weissman and her treatment team appealed UnitedHealthcare’s decision. [Id. ¶ 25].

After review by a UnitedHealthcare medical director, UnitedHealthcare upheld its denial of

coverage on April 12, 2016. [Id. ¶ 26]. The letter explained that proton beam therapy had “not

been shown to be safe and effective for [Weissman’s] condition.” [Id.]. Therefore,

UnitedHealthcare denied coverage under the “experimental or investigational or unproven”

exclusion. [Id.]. UnitedHealthcare referred the decision to an outside specialist in order to get

an expert opinion and reminded Weissman that, in the meantime, she was “responsible for all

costs related” to proton beam therapy. [Id.]. After that “Board-certified independent doctor”

reviewed the decision and determined that “there [wa]s not enough evidence . . . to show [that

proton beam therapy] [wa]s effective for [Weissman’s] condition,” UnitedHealthcare informed

Weissman that it would cover traditional intensity-modulated radiation therapy, but would not

cover proton beam therapy. [Id. ¶ 27].

Weissman and her treatment team again appealed the decision. [Id. ¶ 28]. On April 22,

2016, UnitedHealthcare upheld its decision and reiterated its reasoning to Weissman explaining,

“[y]ou have cervical cancer . . . . We have reviewed your health plan benefits regarding the use

of [proton beam therapy]. Based on the review, there is not enough medical evidence to show

[proton beam therapy] is effective for your condition.” [Id. ¶ 29]. In response, Dr. Andrea

Russo, Assistant Professor at Harvard Medical School in the Department of Radiation Oncology

at Massachusetts General Hospital and part of Weissman’s treatment team, wrote a letter

explaining that the hospital’s proton beam therapy team had determined that Weissman was a

good candidate for the treatment and that she had been authorized for the next available proton

beam therapy treatment slot. [Id. ¶¶ 21, 30, 31]. Five other board-certified oncologists signed

Dr. Russo’s letter. [Id. ¶ 31].

UnitedHealthcare once again referred the request for external review. [Id. ¶ 32]. On May

5, 2016, AllMed Health Care Management determined that Weissman’s proton beam therapy

treatment should be excluded from coverage as experimental or investigational because “there

[wa]s not enough strong clinical evidence to suggest [that proton beam therapy] would change

the outcome in this case.” [Id.].

Weissman went forward with her proton beam therapy and spent $95,000 to cover the

treatment. [Id. ¶ 35]. She has been cancer-free for two years. [Id. ¶ 36]. She was able to avoid

any damage to healthy tissue or organs that might have been caused by traditional intensity-

modulated radiation therapy. [Id. ¶ 37].

Weissman argues (1) that Policy No. T0132 relies on outdated medical evidence and

ignores contemporary evidence; (2) that UnitedHealthcare’s policy for prior authorization review

is inadequate; (3) that the medical directors who review requests for prior authorizations are

unqualified; and (4) that UnitedHealthcare categorically denies coverage for proton beam

therapy for all cancers that are listed on Policy No. T0132’s “not indicated list.” [Compl.

¶¶ 57(a–c), 9(d), 58].

II. PROCEDURAL HISTORY

Weissman filed her complaint on March 26, 2019, under 29 U.S.C. § 1132(a)(3) and 29

U.S.C. § 1132(g). [Compl]. She brings her claims on behalf of herself and members of a

putative class consisting of

[a]ll persons covered under ERISA-governed plans, administered or insured by

UnitedHealthcare, whose requests for [proton beam therapy] were denied at any

time within the applicable statute of limitations, or whose requests for [proton beam

therapy] will be denied in the future, based upon a determination by

UnitedHealthcare that [proton beam therapy] is not medically necessary or is

experimental, investigational or unproven.

[Id. ¶ 40]. Weissman seeks injunctive relief ordering UnitedHealthcare (1) to stop categorically

denying coverage for proton beam therapy; (2) to provide notice to all members who have had

requests for proton beam therapy coverage denied; and (3) to reevaluate all previous prior

authorization requests for proton beam therapy and provide reimbursement for wrongly denied

coverage. [Id. ¶ 60]. Weissman additionally seeks an accounting and disgorgement of any profit

that UnitedHealthcare made by denying coverage, as well as attorneys’ fees and costs. [Id.].

The Defendants filed their motion to dismiss Weissman’s complaint under Federal Rule

of Civil Procedure 12(b)(6) on August 13, 2019. [ECF No. 22]. Weissman opposed, [ECF No.

28], and the Defendants replied, [ECF No. 33].

III. LEGAL STANDARD

To evaluate a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the

Federal Rules of Civil Procedure, the Court must accept as true all well-pleaded facts, analyze

those facts in the light most hospitable to the plaintiff’s theory, and draw all reasonable

inferences from those facts in favor of the plaintiff. U.S. ex rel. Hutcheson v. Blackstone Med.,

Inc., 647 F.3d 377, 383 (1st Cir. 2011). To avoid dismissal, a complaint must set forth “factual

allegations, either direct or inferential, respecting each material element necessary to sustain

recovery under some actionable legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.

2008) (citation omitted). The plaintiff’s obligation to articulate the basis of her claims “requires

more than labels and conclusions . . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007). The facts alleged, when taken together, must be sufficient to “state a claim to relief that

is plausible on its face.” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013)

(quoting Twombly, 550 U.S. at 570). “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) (citation omitted).

IV. DISCUSSION

A. Weissman’s Claim Under 29 U.S.C. § 1132(a)(3)

Weissman asserts that UnitedHealthcare violated its fiduciary duties by (1) drafting and

implementing Policy No. T0132 which acts as a blanket denial of proton beam therapy, (2)

providing inadequate review of clinical records, and (3) by relying on unqualified medical

directors. [Compl. ¶¶ 9, 57].

1. The Complaint is Sufficient Insofar as It Claims that UnitedHealthcare

Violated Their Fiduciary Duties in Applying the Exclusion for

“Experimental,” “Investigational,” or “Unproven” Treatments to

Weissman’s Coverage Request

UnitedHealthcare first argues that the complaint must be dismissed because Weissman

“appears to ask this Court to impose an independent fiduciary obligation on UnitedHealthcare

that focuses on development and implementation of the [proton beam therapy] Policy [No.

T0132], and not on UnitedHealthcare’s application of the Policy in making benefit

determinations under the Plan terms.” [ECF No. 23 at 12].

In an ERISA case, plaintiffs must properly allege that the defendant met one of the

statutory tests for fiduciary status before the defendant can be held liable for any alleged breach

of a fiduciary duty, including that the defendant exercises authority of the plan including its

management and disposition of assets, renders investment advice, or has discretionary authority

in the administration of the plan. 29 U.S.C. § 1002(21)(A); Stein v. Smith, 270 F. Supp. 2d 157,

165 (D. Mass. 2003) (“The plaintiffs must therefore properly allege, with respect to a defendant,

that he or she meets one of the statutory tests for fiduciary status before liability can be found for

any alleged breach by the defendant.”). In this case, Weissman must therefore allege facts

sufficient to demonstrate, first, that UnitedHealthcare was a fiduciary with respect to the Plan,

and, then that it breached its duty as fiduciaries related to matters that were within their

discretion or control. See 29 U.S.C. § 1002(21)(A).

Under ERISA, an actor “is a fiduciary with respect to a plan to the extent . . . he exercises

any discretionary control respecting management of such plan” or “has any discretionary

authority or discretionary responsibility in the administration of such plan.” 29 U.S.C.

§ 1002(21)(A). It appears uncontested that UnitedHealthcare is a fiduciary with respect to the

Plan. See [ECF No. 23 at 12–13]; see also Pegram v. Herdrich, 530 U.S. 211, 223 (2000)

(“[F]iduciary obligations can apply to managing, advising, and administering an ERISA

plan . . . .”). It remains for Weissman to demonstrate that the development and application of

Policy No. T0132 constituted a fiduciary duty that was breached.

“In general terms, fiduciary responsibility under ERISA is simply stated. The statute

provides that fiduciaries shall discharge their duties with respect to a plan ‘solely in the interest

of the participants and beneficiaries,’ that is, ‘for the exclusive purpose of (i) providing benefits

to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering

the plan . . . .’” Pegram, 530 U.S. at 223–24 (internal citation omitted) (quoting 29 U.S.C.

§ 1104(a)(1)). UnitedHealthcare argues that the complaint must be dismissed because “simply

developing a policy of general applicability is not an independent fiduciary act.” [ECF No. 23 at

13].

“[A] plan administrator engages in a fiduciary act when making a discretionary

determination about whether a claimant is entitled to benefits under the terms of the plan

documents.” Varity Corp. v. Howe, 516 U.S. 489, 511 (1996). “[I]nitial decisions regarding the

setup of a plan are not fiduciary acts giving rise to ERISA liability.” Stein, 270 F. Supp. 2d at

170. “[O]nly actions respecting the administration or management of plan ‘assets’ are subject to

fiduciary standards . . . .” Id. (quoting Akers v. Palmer, 71 F.3d 226, 230 (6th Cir. 1995)).

“[D]ecisions about the content of a plan are not themselves fiduciary acts.” Pegram, 530 U.S. at

226–27 (citing Lockheed Corp. v. Spink, 517 U.S. 882, 887 (1996) (“Nothing in ERISA requires

employers to establish employee benefit plans. Nor does ERISA mandate what kind of benefits

employers must provide if they choose to have such a plan.”)).

In this case, UnitedHealthcare denied coverage for Weissman’s proton beam therapy

treatment based on their interpretation of the Plan’s exclusion for “experimental or

investigational or unproven” treatments as set forth in Policy No. T0132. [Compl. ¶¶ 9–12; ECF

No. 23-2]. This policy was promulgated by UnitedHealthcare and intended to provide guidance

as to UnitedHealthcare’s interpretation of the “experimental or investigational or unproven”

treatment exclusion as applied to requests for proton beam therapy. [Compl. ¶¶ 9–12; ECF No.

23-2]. Therefore, although Weissman may not bring a claim challenging the establishment of the

Plan itself, as the decisions about the contents of the Plan itself are not fiduciary acts, she can

challenge UnitedHealthcare’s application of the Plan to her case. The complaint may properly

go forward insofar as it challenges UnitedHealthcare’s application of the Policy to Weissman’s

request for coverage.

2. Plaintiff’s Claim Under ERISA § 1132(a)(3) Fails Because Adequate

Relief Is Available Under § 1132(a)(1)(B)

UnitedHealthcare argues that “because an ERISA plaintiff has an adequate remedy for a

denial-of-benefit claim under § 1132(a)(1)(B), a repackaged denial-of-benefit claim brought

under § 1132(a)(3) as a claim for equitable relief arising under a breach of fiduciary duty is

deficient as a matter of law.” [ECF No. 23 at 8 (citing Grammel v. Prudential Ins. Co. of Am.,

502 F. Supp. 2d 167, 171 (D. Mass. 2007))].

ERISA provides various civil enforcement mechanisms in 29 U.S.C. § 1132(a). Each

subsection provides a separate cause of action, requiring different elements and providing

different relief. See LaRue v. DeWolff, Boberg & Assoc., Inc., 552 U.S. 248, 257–59 (2008)

(Roberts, J., concurring). Section 1132(a)(1)(B) allows a participant in an ERISA-governed plan

to bring a civil action “to recover benefits due to him under the terms of his plan, to enforce his

rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the

plan.” 29 U.S.C. § 1132(a)(1)(B). Section 1132(a)(3), meanwhile, provides that a participant

may bring a civil action “(A) to enjoin any act or practice which violates any provision of this

subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to

redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the

plan.” 29 U.S.C. § 1132(a)(3).

The Supreme Court has explained that § 1132(a)(1)(B) allows a plaintiff “to recover

benefits due under the plan, to enforce rights under the terms of the plan, and to obtain a

declaratory judgment of future entitlement to benefits under the provisions of the plan contract.”

Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 108 (1989); see also Mass. Mut. Life Ins.

Co. v. Russell, 473 U.S. 134, 146–47 (1985) (“To recover the benefits due her, she could have

filed an action pursuant to [ERISA] § 502(a)(1)(B) [29 U.S.C. § 1132(a)(1)(B)] to recover

accrued benefits, to obtain a declaratory judgment that she is entitled to benefits under the

provisions of the plan contract, and to enjoin the plan administrator from improperly refusing to

pay benefits in the future.”). The Supreme Court has also said that § 1132(a)(3) is a “catch-all”

provision that “act[s] as a safety net, offering appropriate equitable relief for injuries . . . not

elsewhere adequately remed[ied]” under § 1132(a). Varity Corp., 516 U.S. at 512. “[F]ederal

courts have uniformly concluded that, if a plaintiff can pursue benefits under the plan pursuant to

Section [(a)](1), there is an adequate remedy under the plan which bars a further remedy under

Section [(a)](3).” LaRocca v. Borden, Inc., 276 F.3d 22, 28 (1st Cir. 2002) (collecting cases).

In response, Weissman argues that it is premature to determine whether she can bring

claims under both § 1132(a)(1)(B) and § 1132(a)(3). See [ECF No. 28 at 14]. Other circuits that

have considered the issue have found that “a plaintiff may plead claims under both

§ 1132(a)(1)(B) and § 1132(a)(3) at the motion to dismiss stage, so long as the plaintiff does not

actually recover under both theories.” Trovato v. Prudential Ins. Co. of Am., No. 17-cv-11428,

2018 WL 813368, at *3 (D. Mass. Feb. 9, 2018) (citing Moyle v. Liberty Mut. Ret. Ben. Plan,

823 F.3d 948, 961 (9th Cir. 2016), as amended on denial of reh’g and reh’g en banc (Aug. 18,

2016)); see also N.Y. State Psychiatric Ass’n v. UnitedHealth Grp., 798 F.3d 125, 134 (2d Cir.

2015); Silva v. Metro. Life Ins. Co., 762 F.3d 711, 726 (8th Cir. 2014). This Court recently

found that it is inappropriate to dismiss a complaint that brings claims under both §

1132(a)(1)(B) and § 1132(a)(3) as duplicative because plaintiffs can bring claims under both

sections even though plaintiffs cannot recover under both provisions. See Brent S. v. Blue Cross

Blue Shield of Mass., Inc., No. 17-cv-11569, 2019 WL 3253357, at *4 (D. Mass. July 19, 2019)

(“[T]he Court finds that it cannot determine at the motion to dismiss stage whether Plaintiffs will

be able to recover on their claim under § 1132(a)(1)(B) and concludes that it would therefore be

premature to dismiss Plaintiffs’ claim under § 1132(a)(3) as duplicative.”). In this case,

however, where the complaint only seeks relief under § 1132(a)(3) and makes no mention of

§ 1132(a)(1)(B), see generally [Compl.], Weissman’s argument that she may seek relief under

both statutes is inapposite.

Here, Weissman seeks a disgorgement of any profits that the Defendants made by

wrongfully denying coverage, and she also seeks an injunction compelling UnitedHealthcare to

(1) provide coverage for proton beam therapy, (2) provide notice to plan members of that

coverage, and (3) re-evaluate all prior authorization requests for coverage for proton beam

therapy. [Id. ¶¶ 60, 62, 63]. Because the complaint seeks relief that is generally available under

§ 1132(a)(1)(B), it must be dismissed because it has inappropriately repackaged a request for

relief under § 1132(a)(1)(B) as an action under § 1132(a)(3).

3. The Complaint’s Allegations Regarding Medical Director Qualifications

Are Insufficient

Weissman claims that UnitedHealthcare violated its fiduciary duty to her and other

potential class members by

[h]aving [P]olicy [N]o. T0132 reviewed and applied to insured members’ requests

for prior authorization and in the adjudication of insured members’ claims by

medical directors who are unqualified to render determinations of coverage for

[proton beam therapy], including medical directors who are not board certified in

the requisite specialty.

[Id. ¶ 57]. UnitedHealthcare claims that the allegation is implausible and internally inconsistent.

See [ECF No. 23 at 16–17].

The complaint is insufficient insofar as it claims that UnitedHealthcare’s medical

directors were unqualified and not board certified. As a preliminary matter, the complaint’s

argument is circular, as the only factual allegation concerning the directors’ qualifications is their

determinations that proton beam therapy was not medically necessary and had not been proven

effective in treating cervical cancer. Weissman makes no other factual allegation relating to their

qualifications. Further, according to the complaint, Weissman’s request for coverage was

reviewed by one board-certified doctor who “specializes in radiation oncology” and another who

specializes in “obstetrics and gynecology.” [Compl. ¶¶ 27, 29]. The only other allegation

concerning the qualifications of the medical directors contained in the complaint is Weissman’s

conclusory claim that UnitedHealthcare violated its fiduciary duties by having uncertified

directors review Weissman’s claim. In assessing a complaint, the Court “must separate the

complaint’s factual allegations (which must be accepted as true) from its conclusory legal

allegations (which need not be credited).” Elsevier, Inc., 732 F.3d at 80 (quoting Morales-Cruz

v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012). Therefore, the Court need not accept

Weissman’s conclusion that the medical directors were unqualified to determine whether proton

beam therapy was “experimental or investigative or unproven.” As it stands, the complaint’s

factual allegations concerning the qualifications of the medical directors are insufficient to

survive a motion to dismiss.

B. The Complaint Fails to State a Fiduciary Breach Claim Against the IPG Plan

Lastly, the Defendants argue that the complaint must be dismissed as against the IPG

Plan. [ECF No. 23 at 20]. The complaint does not sufficiently allege fiduciary acts on the part

of the IPG Plan that could have constituted a breach of a fiduciary duty with regard to the proton

beam therapy coverage determinations at issue here. The only possible reference to the IPG Plan

in the complaint is the allegation that “the defendants acted in concert” and that each “is

responsible for and committed the course of conduct described herein . . . .” [Id.]. Weissman

explains that the IPG Plan was included “merely [as] a byproduct of the compulsory nature of the

arcane ERISA statutes and the risk of omitting an indispensable party,” [ECF No. 28 at 8], and

argues that an employee benefit plan may be sued under 29 U.S.C. § 1132, [id. at 20 (quoting 29

U.S.C. § 1132(d)(1) (“[A]n employee benefit plan may sue or be sued . . . as an entity.”))].

In the First Circuit, “[t]he proper party defendant in an action concerning ERISA benefits

is the party that controls administration of the plan.” Gomez-Gonzalez v. Rural Opportunities,

Inc., 626 F.3d 654, 665 (1st Cir. 2010) (quoting Terry v. Bayer Corp., 145 F.3d 28, 36 (1st Cir.

1998)). In this case, according to the plan, the “Plan Administrator [the IPG Plan]. . . delegated

to UnitedHealthcare the discretion and authority to decide whether a treatment or supply is a

Covered Health Service and how the Eligible Expenses will be determined and otherwise

covered under the Plan.” [Compl. ¶ 10].

Weissman has not claimed that the IPG Plan made any fiduciary decision that gave rise to

her alleged damages. In fact, the complaint makes no mention of any action or inaction on the

part of the IPG Plan. Therefore, the complaint fails to state a plausible claim for relief as to the

IPG Plan.

V. CONCLUSION

Accordingly, Defendants’ motion to dismiss, [ECF No. 22], is GRANTED without

prejudice. Though Weissman has pled sufficient factual allegations concerning the Defendants’

application of the plan to her request for proton beam therapy coverage, her complaint

inappropriately seeks only relief under 29 U.S.C. § 1132(a)(3). Additionally, the complaint is

devoid of factual allegations concerning the inadequacies of the Defendants’ medical directors

and any fiduciary acts on the part of the IPG Plan. Plaintiff may amend the complaint within

twenty-one days.

SO ORDERED.

March 25, 2020 /s/ Allison D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE