United States Court of Appeals For the First Circuit

No. 20-1639

N.R., by and through his parents and guardians, S.R. and T.R., individually and on behalf of all others similarly situated, and derivatively on behalf of the Raytheon Health Benefits Plan,

Plaintiff, Appellant,

v.

RAYTHEON COMPANY; RAYTHEON HEALTH BENEFITS PLAN; WILLIAM M. BULL,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Howard, Chief Judge, Thompson and Gelpí, Circuit Judges.

Eleanor Hamburger, with whom Richard E. Spoonemore, Sirianni Youtz Spoonemore Hamburger Pllc, Stephen Churchill, and Fair Work P.C. were on brief, for appellant.

James F. Kavanaugh, Jr., with whom Catherine M. DiVita, Johanna L. Matloff, and Conn Kavanaugh Rosenthal Peisch & Ford LLP were on brief, for appellees.

Michael N. Khalil, with whom Kate S. O'Scannlain, Solicitor of Labor, G. William Scott, Associate Solicitor for Plan Benefits Security, and Thomas Tso, Counsel for Appellate and Special Litigation, were on brief, for Eugene Scalia, Secretary of Labor, amicus curiae. Martha Jane Perkins, Daniel Unumb, Abigail Coursolle, and Elizabeth Edwards were on brief for National Health Law Program, Autism Legal Resource Center, LLC, Bazelon Center for Mental Health Law, Center for Health Law & Policy Innovation of Harvard Law School, Center for Public Representation, Disability Rights Education and Defense Fund (DREDF), Health Law Advocates, Inc., National Autism Law Center, and The Kennedy Forum, amici curiae.

January 31, 2022 THOMPSON, Circuit Judge. Plaintiffs S.R. and T.R. are

the parents of N.R., who was four years old at the start of our

story. The family had health insurance through T.R.'s employment

at defendant Raytheon Company. Raytheon enlisted defendant United

Healthcare to administer this health insurance plan (simply called

the "Plan" from here on out) and assigned defendant William Bull

to be the Plan's administrator. Everyone seemed happy with this

arrangement until United Healthcare refused to pay for N.R.'s

speech therapy. After S.R. and T.R. could not get United

Healthcare to change its mind, the family sued for various

violations of the Employee Retirement Income Security Act of 1974

("ERISA"),

, et seq. The district court dismissed

the case in full, buying into the defendants' representations of

how the Plan works too much for this stage in the litigation. Ever

mindful that all well-pleaded factual allegations in the complaint

are accepted as true when reviewing a motion to dismiss, we affirm

as to Count 1, and reverse and remand as to the remaining counts.

See Ezra Charitable Tr. v. Tyco Int'l, Ltd.,

(1st

Cir. 2006) (in addition to accepting well-pleaded factual

allegations in the complaint, we also construe reasonable

inferences in favor of the plaintiffs).

- 3 - I.

Relevant Details of the Plan

The Plan includes a list entitled "Exclusions," and

explains that "[t]he [United Healthcare] plans do not cover any

expenses incurred for services, supplies, medical care, or

treatment relating to, arising out of or given in connection with

[those excluded services.]" Among those excluded expenses are

"[h]abilitative services for maintenance/preventive treatment" and

"speech therapy for non-restorative purposes."

The "Exclusions" list also includes a nested sub-list of

"mental health (including Autism Spectrum Disorder (ASD)

services)/substance-related and addictive disorders services

[that] are not covered[.]" That "mental health" list includes the

following relevant text:

Habilitative services, which are health care services that help a person keep, learn or improve skills and functioning for daily living, such as non-restorative ABA speech therapy[.]

. . .

Intensive behavioral therapies other than Applied Behavior Analysis (ABA) therapy for Autism Spectrum Disorders (ASD)[.]

N.R.'s Treatment and Denial of Coverage

In 2017, a doctor diagnosed N.R. with Autism Spectrum

Disorder ("ASD") and prescribed that N.R. "receive speech therapy

services." And so, N.R. began treatment with a licensed speech

- 4 - pathologist, Ann Kulichik, to treat his ASD, "[m]ixed receptive-

expressive language disorder, [and] phonological disorder." Each

of those diagnoses was recorded and reported to United Healthcare

using its classification number from the International Statistical

Classification of Diseases and Related Health Problems, 10th

Revision (apparently known as the "ICD-10"). ASD, mixed receptive-

expressive language disorder, and phonological disorder are each

classified within the "Mental, Behavioral, and Neurodevelopmental"

section of the ICD-10. The ICD-10 also contains a section for

"Symptoms, Signs and Abnormal Clinical and Laboratory Findings,

Not Elsewhere Classified." Kulichik noted (in documentation

eventually submitted to United Healthcare) that N.R. had several

symptoms that fell within this category, namely: "dysarthria, []

anarthria and dysphagia, oral phase." Those symptoms are not

diagnoses of "either 'mental health' or 'medical/surgical'

conditions."

Kulichik submitted N.R.'s claims for speech therapy to

United Healthcare using a general code that "is used to describe

the delivery of treatment for speech, language, voice,

communication and/or auditory processing disorders." That

treatment code (described as "very comprehensive" by the American

Speech-Language-Hearing Association), is used when speech therapy

is provided to treat a developmental health condition, like ASD,

or a medical condition, like a stroke. Kulichik also submitted at

- 5 - least one claim for N.R.'s speech therapy using a code "for

treatment of swallowing dysfunction and/or oral function for

feeding." Like the more general code, this swallowing and feeding

code can be used when the speech therapy is to treat a

developmental health condition or a medical condition.

United Healthcare denied each of these claims, simply

explaining that "this service is not covered for the diagnosis

listed on the claim" and referring N.R.'s parents to the "[P]lan

documents" for further explanation.

N.R.'s parents appealed these denials through United

Healthcare's internal process. The appeal included several

letters of medical necessity, including letters from Kulichik and

N.R.'s board-certified behavior analyst. N.R.'s parents also

argued that the Plan's exclusion of treatment for N.R.'s ASD

violated the Mental Health Parity and Addition Equity Act (simply

the "Parity Act" after this), an amendment to ERISA aimed at

mitigating disparities between mental health and physical health

insurance coverage (and the subject of much discussion later).

United Healthcare denied this appeal and offered the

following statement from Dr. Samuel Wilmit, a Medical Director at

United Healthcare who specialized in pediatrics:

You are asking for speech therapy. This is for your child. Your child is autistic. Your child does not speak clearly. Your benefit document covers speech therapy if your child lost speech. It is to restore speech that was

- 6 - lost. Your child has not had speech that was lost. Therefore, speech therapy is not covered. The appeal is denied.

The denial did not address the argument that these denials violated

the Parity Act.

N.R.'s parents filed a second-level appeal, again with

documentation about the medical necessity of this treatment and

with a more thorough explanation of their Parity Act argument.

United Healthcare was unmoved. The denial letter included this

statement from Dr. Meenakshi LaCorte, a Medical Director at United

Healthcare who specialized in pediatric neonatology:

I have reviewed the information that was submitted for this appeal. I have also reviewed your benefits. You have requested speech therapy for your child. This therapy is a benefit under your health plan only if your child had speech that was lost. Based on your health plan guidelines, your request is denied.

Again, the denial letter did not mention the Parity Act argument.

After the conclusion of the appeal process, N.R.'s

parents requested all documents and internal communications and

notes upon which United Healthcare relied when it denied coverage

of N.R.'s treatment. The provided documents revealed that United

Healthcare did not conduct a "Medical Necessity Review" and never

attempted to communicate with any of N.R.'s medical providers,

including Kulichik.

- 7 - Also within those documents were the notes from Dr.

Wilmit's review of the first appeal. Dr. Wilmit concluded that

N.R.'s "speech or nonverbal communication function" was not

"previously intact" and, therefore, the Plan does not cover speech

therapy. Dr. Wilmit's notes and United Healthcare's records,

generally, did not reflect the source for the conclusion that N.R.

had no "previously intact" speech or other communication. In the

complaint, the plaintiffs allege that the most reasonable

conclusion is that Dr. Wilmit assumed that N.R. had no previously

intact speech (and therefore treatment was not covered) because of

his ASD diagnosis and not based on any actual documentation of

N.R.'s condition.

The internal notes from the second-level appeal include

the following summary:

This request is for speech therapy for a [four-year-old] boy. This child has autism and a speech disorder. There is no documentation that speech therapy is needed for restoration of speech. The speech therapy is not a covered benefit and the request is denied.

Nothing in the internal documents discussed N.R.'s parents' Parity

Act argument.

After the last denial of their appeal, N.R.'s parents

contacted Raytheon and United Healthcare and requested the list of

"non-mental health conditions to which the Plan applies the 'non-

restorative' speech therapy exclusion," "the medical necessity

- 8 - criteria" for applying the non-restorative speech therapy

exclusion to medical or mental health benefits, and the "processes,

strategies, evidentiary standards, and other factors" used to

apply the exclusion. N.R.'s parents received no response.

Resultant Litigation

ERISA authorizes a plan participant or beneficiary to

bring a civil action "to recover benefits due to him under the

terms of his plan," "to enjoin any act or practice which violates

[ERISA]," for "relief" for failure to provide information

requested by the beneficiary, and "to obtain other appropriate

equitable relief."

(a)(1)-(3). Relying on each

of these provisions, N.R. and his parents sued Raytheon, United

Healthcare, and Bull, in his role as the Plan administrator,

seeking damages and declaratory and injunctive relief. At the

core of N.R.'s case was his argument that the Plan's exclusion of

non-restorative speech therapy for ASD violates the requirements

of the Parity Act.

The defendants collectively moved to dismiss. Of note

to our analysis, in their supporting memorandum, the defendants

told the district court that the Plan complied with the Parity

Act's requirements because the non-restorative exclusion applies

to all types of conditions, no matter whether the beneficiary is

prescribed treatment for a medical or a mental health/substance

- 9 - use diagnosis.1 The district court agreed that the defendants'

explanation of the Plan's application was the only possible reading

and so the Plan did not violate the Parity Act. For that and

additional reasons specific to some of the claims, the district

court allowed the defendants' motion and dismissed the case,

including dismissing some of the claims with prejudice. N.R.

timely appealed and here we are.2

1 The defendants explained the hypothetical operation of the Plan in the following way: A person might not develop a "normal" level of speech due to a medical/surgical condition as well as a mental health condition. For example, a person might have difficulty speaking due to a lisp, stutter, deafness, or physical deformity of the mouth or vocal [cords] from birth. Under these circumstances, there would be no loss of speech that was "previously intact." If the person sought speech therapy, and the purpose of the therapy was to help the person achieve a level of speech beyond what had previously been achieved, coverage for that treatment would be barred under the Exclusion. Coverage would be barred, not because treatment was sought for a certain type of condition, but because it was "nonrestorative."

2 N.R. also brought this suit on behalf of a purported class of participants or beneficiaries of the Plan who have received or are expected to require services for a mental health condition that are excluded from coverage by the Plan's habilitative services exclusion. The district court's order did not address the class allegations and there is no discussion of those allegations on appeal.

- 10 - II.

We review the district court's decision to dismiss

N.R.'s case for failure to state a claim de novo. Ezra Charitable

Tr.,

. In doing so, we assume all well-pleaded facts

to be true, analyze those facts in the kindest light to the

plaintiff's case, and draw all reasonable inferences in favor of

the plaintiff. U.S. ex rel. Hutcheson v. Blackstone Med., Inc.,

(1st Cir. 2011). A successful complaint must

plead "factual allegations, either direct or inferential,

respecting each material element necessary to sustain recovery

under some actionable legal theory." Gagliardi v. Sullivan,

(1st Cir. 2008). "We may augment these facts and

inferences with data points gleaned from documents incorporated by

reference into the complaint." Haley v. City of Boston,

(1st Cir. 2011).

N.R. brought four different claims, but one question

predominates the analysis: Does the Plan violate the Parity Act?

We conclude that it may, which is all N.R. needs at this stage of

the game, and so we begin by explaining our thinking on that point

and then move to what that means for each individual count of the

complaint.

Does the Plan Violate the Parity Act?

ERISA establishes the bare minimum standards to which

private health care plans must adhere. The Parity Act amended

- 11 - ERISA to require that, if a health insurance plan provides "both

medical and surgical benefits and mental health or substance use

disorder benefits," the plan must not impose more coverage

restrictions on the mental health or substance use disorder

benefits. 29 U.S.C. § 1185a(a)(3)(A)(i). Any treatment

limitations applied to mental health or substance use disorder

benefits must be "no more restrictive than the predominant

treatment limitations applied to substantially all medical and

surgical benefits covered by the plan." 29 U.S.C.

§ 1185a(a)(3)(A)(ii).

A violation of the Parity Act generally manifests

through a health insurance plan (1) applying treatment limits that

are more restrictive than "the predominant treatment limitations

applied to substantially all medical and surgical benefits" or (2)

applying "separate treatment limitations" only to mental health or

substance use disorder benefits. 29 U.S.C. § 1185a(a)(3)(A)(ii).

As the name of the Act suggests, health plans must have parity

between mental health and medical benefits within the same

"classification," which refers to (1) inpatient, in network

services; (2) inpatient, out of network services; (3) outpatient,

in network services; (4) outpatient, out of network services; (5)

emergency care; and (6) prescription drugs.

(c)(1)(i), (c)(2)(ii). The Parity Act also measures

parity between mental health and medical benefits in a qualitative

- 12 - manner, including mandating equivalence in "medical management

standards limiting or excluding benefits based on medical

necessity or medical appropriateness" and "restrictions based on

geographic location, facility type, provider specialty, and other

criteria that limit the scope or duration of benefits for services

provided under the plan or coverage."

(c)(4)(ii)(A), (H). However, "disparate results alone

do not mean that [nonquantitative treatment limitations] in use do

not comply [with the Parity Act.]" Preamble, Final Rules, 78 Fed.

Reg. at 68245-46. N.R. argues that, on its face, the terms of the

plan apply "separate treatment limitations," 29 U.S.C.

§ 1185a(a)(3)(A)(ii), to mental health benefits because the

Habilitative Services Exclusion applies only to "mental health

service[s]."

The defendants note that a "habilitative services"

exclusion shows up twice in the larger list of "Exclusions," once

generally in the main body of the list and once in a sub-list of

"mental health" exclusions. As they see it, no habilitative

service is covered, no matter what ailment the service is intended

to treat, so medical and mental health benefits are the same and

the Parity Act's requirements are satisfied. However, N.R. points

out, the Plan itself only defines habilitative services once, in

the "mental health" sub-list, as a type of "mental health service."

- 13 - So, per the Plan's own text, that exclusion can only apply to

mental health services.

N.R.'s argument is bolstered when we consider the Plan

covers at least some procedures (emphases our own) "when a physical

impairment exists and the primary purpose of the procedure is to

improve or restore physiologic function for an organ or body part."

Lest we be unsure what the Plan means by "improve," it provides a

clear definition: "Improving or restoring function means that the

organ or body part is made to work better." Put that together and

the Plan explicitly covers services that "[i]mprov[e] function"

for those with "a physical impairment." Yet, the Habilitative

Services Exclusion instructs us that the Plan does not cover

treatments that "improve skills and functioning" if the

beneficiary is seeking "mental health" services. This is precisely

the distinction the Parity Act prohibits. See 29 U.S.C.

§ 1185a(a)(3)(A)(ii).

No matter what we think of the text of the Plan though,

N.R. tells us, the way the habilitative services exclusion is

applied to plan beneficiaries violates the Parity Act. N.R.

directs us to the text of the defendants' denials of coverage for

his speech therapy. Each time the defendants denied coverage,

they told N.R. that "this service is not covered for the diagnosis

listed on the claim," and that diagnosis was always ASD. N.R.

alleges that the defendants never actually confirmed whether

- 14 - N.R.'s speech therapy was non-restorative, but simply denied

coverage because of his ASD diagnosis. Indeed, United Healthcare's

report of its review process, appended to the complaint, indicates

that its staff did not undertake a "medical necessity review" or

contact any of N.R.'s medical providers to confirm that all speech

therapy would be habilitative.

Plus, N.R. alleges that the Plan covers non-restorative

treatment for physical conditions that are present at birth, "such

as reconstructive procedures, congenital heart disease or

congenital malformations related to infertility, among others."

The defendants, for their part, insist (without any citation to

the text of the Plan) that is not true and that the Plan would not

cover speech therapy for a beneficiary with "difficulty speaking

due to a lisp, stutter, deafness, cleft palate, or physical

deformity of the mouth or vocal [cords] from birth."

This may be a tough disagreement to untangle, with each

side making arguments about the reading of the complex Plan

document and the actual application of the habilitative services

exclusion, but, thankfully, this case is before us on an appeal

from a motion to dismiss. We do not review a motion to dismiss by

granting any favor to the defendants' version of the facts.

Instead, "we accept the truth of all well-pleaded facts and draw

all reasonable inferences therefrom in the pleader's favor."

Grajales v. P.R. Ports Auth.,

(2012). The Parity

- 15 - Act forbids "applying 'separate treatment limitations' only to

mental health or substance use disorder benefits." 29 U.S.C.

§ 1185a(a)(3)(A)(ii). N.R. pleads that the Plan defines

habilitative services as mental health services and accordingly

only applies the habilitative services exclusion to the treatment

of mental health ailments. That is an entirely plausible reading

of the text of the Plan, which N.R. appended to the complaint for

judicial review, and could make for a successful Parity Act claim.

See T.S. by and through T.M.S. v. Heart of CarDon, LLC, No. 1:20-

cv-01699-TWP-TAB, WL 981337, at *3-4 (S.D. Ind. March 16, 2021)

(cautioning that, once a plan explicitly covered a treatment for

ASD, "it could not use blanket exclusion 'to deny coverage of ABA

therapy' because that prohibition represented 'a separate

treatment limitation that applie[d] only to mental treatment.'"

(quoting A.F. ex rel. Legaard v. Providence Health Plan,

(D. Or. 2014) (holding that a plan covering

ASD, but excluding coverage for developmental disabilities,

violated the Parity Act))); see also Grajales,

("In

order '[t]o survive a motion to dismiss for failure to state a

claim, the complaint must contain sufficient factual matter to

state a claim to relief that is plausible on its face." (quoting

Katz v. Pershing, LLC,

, 72–73 (1st Cir. 2012)

(alterations adopted))). The defendants' promise that the Plan

does not function as N.R. alleges, and, instead, is in compliance

- 16 - with the Parity Act, does not change our analysis of a motion to

dismiss. See, e.g., Ocasio-Hernández v. Fortuño-Burset,

(1st Cir. 2011) ("The relevant inquiry focuses on the

reasonableness of the inference of liability that the plaintiff is

asking the court to draw from the facts alleged in the

complaint.").

The same goes for N.R.'s allegations that the defendants

denied coverage of his speech therapy as soon as they saw his ASD

diagnosis and that, if his diagnosis were of a purely physical

malady, the result would have been different. Those claims, well-

articulated, are all N.R. needs to do to get to discovery, where

he can then find out whether he's actually right. See

.

The district court agreed with the defendants'

representation of how the Plan works. At this stage of the process

such determination was premature. See Cebollero-Bertran v. P.R.

Aqueduct and Sewer Auth.,

(1st Cir. 2021) ("This

inference, drawn in the defendant's favor, not the plaintiff's,

was improper on a motion to dismiss.").

N.R.'s Parity Act argument informs all of his claims,

but the district court held that Count 3 of the complaint, a claim

for equitable relief per

(a)(3), was the only

proper procedural vehicle through which N.R. could adjudicate his

case, and so dismissed this claim on the merits. Having concluded

that N.R. sufficiently pled that the Plan violates the Parity Act

- 17 - in its text or in its application, we reverse the district court's

dismissal of Count 3.3 We now turn to the remaining ERISA

provisions under which N.R. brings his case.

Breach of Fiduciary Duty

N.R. brings a breach of fiduciary duty claim (Count 1)

under

(a)(2), arguing that he is entitled to relief

for the Parity Act violation claim under this statute. Given the

specific pleadings and circumstances here, we disagree. We will

explain why, but first a few background principles that helped us

get there.

ERISA requires plan fiduciaries to discharge their

duties "in the interest of the participants and beneficiaries" and

"in accordance with the documents and instruments governing the

plan insofar as such documents and instruments are consistent with

the provisions of [Subchapters I and III of ERISA]."

(a)(1). Fiduciaries are charged with many tasks, including

making "benefit determination[s]" in compliance with the terms of

the statute and the plan. Aetna Health Inc. v. Davila,

(2004) ("[A] benefit determination is part and parcel of

the ordinary fiduciary responsibilities connected to the

administration of a plan."); accord Varity Corp. v. Howe,

(1996) (citing

(a)(1)(D)) ("[A] plan

3On appeal, the defendants agree that § 1132(a)(3) is the avenue to pursue a Parity Act claim.

- 18 - 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."); see Pegram

v. Herdrich,

(2000) ("At common law, fiduciary

duties characteristically attach to decisions about managing

assets and distributing property to beneficiaries."). If a

fiduciary breaches its duty, ERISA empowers participants and

beneficiaries to bring a civil suit for that breach, per

(a)(2), and to seek financial remedies and "such other

equitable or remedial relief as the court may deem appropriate,

including removal of such fiduciary,"

.

Understanding that, N.R. alleges that Raytheon and Bull

each breached their fiduciary duties when they denied coverage for

N.R.'s speech therapy, in violation of the Parity Act.4 The

district court dismissed this claim with prejudice, reasoning that

the only proper claim for a breach of fiduciary duty is one in

which a plan was financially harmed by the fiduciary's action, and

the Plan suffered no financial losses from declining to pay for

N.R.'s speech therapy. Given the pleadings here, we agree with

the district court.

4 There appears to be no dispute that Raytheon and Bull are fiduciaries, which are simply those with authority over and discretion about the administration of the plan.

(21).

- 19 - While we have determined that Raytheon and Bull are

fiduciaries, that benefit determinations are fiduciary acts, and

that benefit determinations must be consistent with ERISA, we read

§ 1132(a)(2) as concerned solely with plan asset mismanagement and

solely authorizing remedies that inure to the benefit of the plan

as a whole. See LaRue v. DeWolff, Boberg & Assocs., Inc.,

(1985); see also Varity Corp., 516 U.S. at 511–

12. Since the Parity Act violation claim does not allege plan

asset mismanagement and does not seek a remedy that would inure to

the benefit of the Plan as a whole, N.R. cannot package the claim

as one for breach of fiduciary duty under § 1132(a)(2).

Section 1132(a)(2) empowers a beneficiary to bring a

civil action "for appropriate relief under section 1109 of this

title." Section 1109(a) states in pertinent part:

Any . . . fiduciary . . . who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary.

(a).

According to the Supreme Court, § 1132(a)(2) "does not

provide a remedy for individual injuries distinct from plan

- 20 - injuries." LaRue, 552 U.S. at 256; see also Graden v. Conexant

Sys. Inc.,

(3d Cir. 2007) ("[S]uits under

[§ 1132(a)(2)] are derivative in nature;" though beneficiaries may

bring suit under the provision, "they do so on behalf of the plan

itself."). Moreover, the Supreme Court has characterized

(a) as "primarily concerned with the possible misuse of plan

assets, and with remedies that would protect the entire plan,"

Russell,

; and has held that § 1109's "entire text

. . . persuades us that Congress did not intend that section to

authorize any relief except for the plan itself," id. at 144.

Interpreting § 1109, the Supreme Court specifically rejected a

broader reading based upon the provision's mention of other

appropriate equitable relief. See id. at 141-42 ("To read directly

from the opening clause of § [1109](a), which identifies the

proscribed acts, to the 'catchall' remedy phrase at the end --

skipping over the intervening language establishing remedies

benefiting, in the first instance, solely the plan -- would divorce

the phrase being construed from its context and construct an

entirely new class of relief available to entities other than the

plan.").

In line with this Supreme Court precedent, other

circuits have affirmed dismissal of claims for breach of fiduciary

duty brought under § 1132(a)(2) that do not allege damage to a

plan's financial integrity and do not seek a remedy that will inure

- 21 - to the plan as a whole. See Smith v. Med. Benefit Adm'rs Grp.,

Inc.,

(7th Cir. 2011) (observing "Russell . . .

controls here, and as Smith has identified no injury to the plan,

he has no viable claim for relief under section [1132](a)(2)" and

affirming dismissal of claim brought under § 1132(a)(2) alleging

that claims administrator had misleading practice of pre-

authorizing treatment and subsequently refusing to cover it); Wise

v. Verizon Commc'ns Inc.,

(9th Cir. 2010)

(affirming dismissal of claim brought under § 1132(a)(2) for plan

administrator's mishandling of plaintiff's individual benefits

claim where plaintiff did not allege "plan-wide injury"); Lee v.

Burkhart,

(2d Cir. 1993) (explaining "Russell

. . . bars plaintiffs from suing under [§ 1132(a)(2)] because

plaintiffs are seeking damages on their own behalf, not on behalf

of the Plan" and affirming dismissal of claim brought under

§ 1132(a)(2) seeking benefits owed but unpaid by plan's sponsor

due to its bankruptcy).

Our decision in Evans v. Akers,

(1st Cir.

2008), says no different. Indeed, Evans supports a reading of

§ 1132(a)(2) as concerned with plan asset management. See

. The alleged breach of fiduciary duty in Evans was

imprudent investment of participants' contributions to a defined

contribution retirement plan, and the plaintiffs sought to hold

the fiduciaries personally liable for this asset mismanagement.

- 22 -

. By holding the fiduciaries personally liable under

§ 1132(a)(2), the value of the plaintiffs' individual accounts

could be restored to what it would have been but for the imprudent

investment. Id. at 73.5

Here, N.R.'s claim under Count 1 does not allege plan

asset mismanagement and does not seek a remedy that will inure to

the Plan as a whole. The only relief that N.R.'s complaint seeks

in connection with Count 1 is for "Defendants to restore all losses

arising from the breaches of fiduciary duties that occurred when

treatment was denied that is required by the terms of the Plan."

And the only losses alleged are benefits which were not paid out

to N.R. and putative class members. N.R. does not allege any

losses to the Plan itself. See K.H.B. ex rel. Kristopher D.B. v.

UnitedHealthcare Ins. Co., No. 18-cv-000795,

, at

*3 (D. Utah Sept. 27, 2019) (unpublished) ("Although the denial of

coverage . . . is alleged to be systematic . . . the alleged injury

is class-wide, not plan-wide. . . . [I]n the absence of sufficient

factual allegations suggesting the Plan suffered monetary losses,

this fails to adequately plead relief on behalf of the Plan.");

5 The plaintiffs in Evans, unlike the plaintiffs here, could not have brought suit under § 1132(a)(1)(B) (which allows for recovery of benefits from "the Plan itself") because taking money from a defined contribution plan is a zero-sum game: in order to restore the benefits owed to the plaintiffs, other participants would be robbed because all of the money in a defined contribution plan is allocable to participants' individual accounts.

.

- 23 -

(affirming dismissal of claim brought under § 1132(a)(2)

alleging denial of coverage for mental health treatment in

violation of the Parity Act). Given the facts presented here, we

affirm the district court's dismissal of Count 1, leaving N.R. to

pursue his Parity Act violation claim through different avenues.

See Varity Corp.,

("ERISA specifically provides a

remedy for breaches of fiduciary duty with respect to the

interpretation of plan documents and the payment of claims, one

that is outside the framework of [§ 1132(a)(2)] . . . and one that

runs directly to the injured beneficiary. § [1132](a)(1)(B)."

(emphasis added)).

Recovery of Benefits

Moving on. N.R., as a plan beneficiary, can sue "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."

(a)(1)(B). N.R.'s claim for speech therapy benefits breaks

down into two steps: (1) the Parity Act's requirements are

incorporated as "the terms of the plan" and (2) the Plan's

Habilitative Services Exclusion violates the Parity Act, so it is

inconsistent with a "term of the plan." The district court

dismissed this claim with prejudice because it concluded that the

Parity Act's requirement is not a "term of the plan" and that N.R.

- 24 - was correctly denied benefits per the Habilitative Services

Exclusion. The defendants make the same argument on appeal.

As we've said before, a plan's terms cannot override

ERISA's requirements.

(a)(1)(D) (requiring

fiduciaries to discharge duties consistent with plan documents

"insofar as such documents and instruments are consistent with the

provisions of [ERISA]"); e.g., In re Citigroup ERISA Lit.,

(2d Cir. 2011) (holding that ERISA's requirements

supersede a plan's terms when inconsistent with one another). We

have already concluded that N.R. plausibly pled that the

Habilitative Services Exclusion violates the Parity Act.

Considering these concepts together, we see that N.R. properly

pleads that the Habilitative Services Exclusion is trumped by ERISA

and is accordingly unenforceable. Therefore, without the

Exclusion in force, N.R. has a perfectly reasonable argument that

he's owed "benefits due to him under the terms of his plan." See

(a)(1)(B). We reverse the district court's

dismissal of this claim.

Request for Information

Last up is N.R.'s claim under

(a)(1)(A),

that Bull, as the plan administrator, violated ERISA's disclosure

requirements when he did not answer N.R.'s parents' request for

- 25 - information.6 After a bit of a statutory scavenger hunt to line

up the details of this claim, we see that § 1132(a)(1)(A)

authorizes a plan participant or beneficiary to bring a civil

action against a plan administrator who violates § 1132(c)(1)(B),

which provides for damages for an administrator who (circularly)

"fails or refuses to comply with a request for any information

which such administrator is required by this subchapter to furnish

to a participant or beneficiary." Two provisions of the subchapter

in question require an administrator to furnish the following

information upon request: "a copy of the latest updated summary

plan description . . . or other instruments under which the plan

is established or operated" and "criteria for medical necessity

determinations made under the plan with respect to mental health

[and t]he reason for any denial under the plan . . . with respect

to mental health or substance use disorder benefits."

(b)(4), 1185a(a)(4).

As a reminder, after the unsuccessful conclusion of the

internal appeals process, the complaint alleges, N.R.'s parents

contacted United Healthcare and Raytheon (through its in-house

counsel and its litigation counsel for this case) and requested,

6There is no dispute that Bull is the Plan Administrator as discussed in the statute and defined by the applicable regulations. See

(16)(A)(i) (defining "administrator" in several ways, including as "the person specifically so designated by the terms of the instrument under which the plan is operated"). Plus, the complaint identifies Bull as the Plan Administrator.

- 26 - essentially, all information about how the Plan applies the non-

restorative speech therapy exclusion.7 The district court noted

that the plaintiffs attached to the complaint a copy of a request

letter that was sent to United Healthcare, but did not include

such a letter that was sent to Raytheon. The district court

apparently concluded that the complaint, therefore, only

sufficiently alleged that N.R.'s parents sent a letter to United

Healthcare. All agree that United Healthcare is the claims

administrator, not the plan administrator, and therefore, the

district court dismissed this claim, reasoning that N.R.'s parents

never contacted the plan administrator, as required by statute.

See

(c)(1)(B).

On that specific point, the district court was correct.

A claims administrator is distinct from a plan administrator and

merely requesting information from a claims administrator does not

trigger § 1132(c)'s disclosure requirements. Tetreault v.

Reliance Std. Life Ins. Co.,

(1st Cir. 2014).

Beyond that, to the extent Raytheon urges us to affirm dismissal

because the plaintiffs do not allege that they addressed a letter

7 More precisely, N.R.'s parents requested the list of "non- mental health conditions to which the Plan applies the 'non- restorative' speech therapy exclusion," "the medical necessity criteria" for applying the non-restorative speech therapy exclusion to medical or mental health benefits, and the "processes, strategies, evidentiary standards, and other factors" used to apply the exclusion.

- 27 - personally to Bull, we have never endorsed quite such a persnickety

reading of the statute. See Law v. Ernst & Young,

(1st Cir. 1992) (recognizing that Congress desired employees

to have "timely information about their ERISA benefits" and holding

that "[i]f to all appearances, [a company] acted as the plan

administrator . . . it may be properly treated as such"). The

plaintiffs alleged that N.R.'s parents attempted to acquire the

information that § 1132(c) requires plan administrators to

disclose by contacting Raytheon (Bull's employer), its in-house

counsel, and its outside counsel, who is also representing Bull in

this case. At the motion to dismiss stage, we presume that to be

true.

The better argument for dismissal, so we're told, is

that the defendants have already provided plaintiffs with all

required information and that anything left that could be

responsive to plaintiffs' request does not have to be disclosed,

per the statute. First, the argument that the defendants handed

over everything ERISA requires presumes that to be true, when the

appropriate standard is to credit the plaintiffs' allegations that

they are entitled to more, yet to be disclosed, documents. See

Cebollero-Bertran,

.

Second, the defendants argue that the plaintiffs have no

right to the documents they claim to seek. In support of this,

the defendants rely heavily on Doe v. Travelers Ins. Co., 167 F.3d

- 28 - 53 (1st Cir. 1999). There, a plan beneficiary claimed a violation

of ERISA's disclosure requirements because the plan administrator

did not, upon request, tender a copy of the plan's "mental health

guidelines." Id. at 59. We held that the "mental health

guidelines" in that case did not qualify as one of the plan's

"instruments" that the administrator must disclose. Id. We

reached this conclusion, in part, because the "mental health

guidelines" were an optional screening tool that the plan

administrator used at its discretion, so the administrator may

well have disregarded those guidelines when deciding the

beneficiary's claim. Id. at 59-60.

Though the defendants sound alarms to the contrary,

nothing in Doe is inconsistent with our holding today.

Importantly, Doe interpreted ERISA requirements prior to the

enactment of the current version of the Parity Act, which added

substantive requirements for how plans engaged with mental health

and substance use disorder benefits. See 29 U.S.C. § 1185a(a)(4).

Plus, the optional "guidelines" at issue in Doe are unlike the

mandatory plan terms that governed the decision in N.R.'s case.

ERISA leaves no doubt that Congress intended plan participants and

beneficiaries to know about mandatory terms of their plans. See

Law,

.

Considering all of this from the proper perspective for

reviewing a motion to dismiss, we conclude the plaintiffs properly

- 29 - pled a claim under

(a)(1)(A) and reverse the

district court's dismissal of that count.

III.

For all of the reasons just discussed, we affirm the

district court's grant of the defendants' motion to dismiss on

Count 1, and we reverse and remand for further proceedings on

Counts 2 through 4. Costs to the plaintiffs.

- 30 -