UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Tracy L. Reid, individually, and on behalf of M.A.R.,
Plaintiff(s), vs. Case No. ______________
(To be assigned by Clerk of District Court)

BCBSM, Inc. d/b/a BlueCross BlueShield of Minnesota, HealthPartners Insurance Company, Minnesota Department of Commerce, and Blue Cross and Blue Shield of Minnesota Defendant(s). Medical Plan, Group No. 4G175-00

DEMAND FOR JURY TRIAL YES ✓ NO ___

COMPLAINT PLAINTIFF, as and for its cause of action against the above-named defendants states and alleges as follows: Jurisdiction 1. This suit is brought under the provisions of 42 USC §12111-et seq., Titles II and III of the

Americans with Disabilities Act; 19 USC §1001 et seq., the Employee Retirement Income Security Act (ERISA), as authorized by 29 USC §1132, 42 USC §300gg-19, the Patient Protection and Affordable Care Act (PPACA), and the 14th Amendment of the United States Constitution. This Court’s jurisdiction to hear those claims is based on 28 USC §1331 as they are claims arising under the laws of the United States.

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2.

In addition, pendent state claims arising under the Minnesota Constitution, Minnesota

Human Rights Act codified at Minnesota Statutes Chapter 363A, Minnesota State Insurance laws Chapters 62Q and 72A (including §72A.20 and §§62Q.69-73), and Minnesota State Mental Health Parity Act (including §§62Q.47-53) are brought under Rule 18(a) of the Federal Rules of Civil Procedure and 28 USC §1331. 3. The Plaintiff has complied with all jurisdictional conditions precedent to the filing of this

civil action. The Parties 4. The Plaintiff in this action is Tracy Lee Reid, born June 2, 1977, age 35, (hereinafter

Plaintiff). She brings these claims individually and on behalf of her son, Maxwell Alexander Reid, who is in her sole legal and physical custody. Plaintiff resides with Max at xxx, in the County of Hennepin. 5. Maxwell “Max” Alexander Reid (hereinafter Max), born October 18, 2005, age 7, is the

son of Plaintiff and resides with her. Max has been diagnosed with developmental delay, then Pervasive Developmental Disorder - Not Otherwise Specified (hereinafter PDD-NOS), and ultimately Autism and Autism Spectrum Disorder (hereinafter ASD). He has received medical coverage from the Defendants HealthPartners and BCBSM at all times relevant to this proceeding. 6. Defendant HealthPartners Insurance Company (hereinafter HealthPartners) is legally or-

ganized and does business in the State of Minnesota located at 8170 33rd Ave. South, Bloomington, MN 55425 in the County of Hennepin, providing health insurance coverage. HealthPartners was Max’s primary insurer from birth to November 30, 2011. 7. Defendant BCBSM, Inc. d/b/a BlueCross BlueShield of Minnesota is legally organized

and does business in the State of Minnesota located at 3535 Blue Cross Rd., Eagan, MN 55122-

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1154 in the County of Dakota providing health insurance coverage. Max has been covered by Defendant BCBSM, Inc. as his primary medical insurer from January 1, 2012 to the present through Group Number 4G175-00 001. The Plan itself is named herein as Defendant Blue Cross and Blue Shield of Minnesota Medical Plan, Group No. 4G175-00 0001. Defendants BCBSM, Inc. d/b/a BlueCross BlueShield of Minnesota and Blue Cross and Blue Shield of Minnesota Medical Plan, Group No. 4G175-00 are referred to herein collectively as “Defendants BCBSM”. Upon information and belief, the actions and interests and actions of both of these Defendants are the same. 8. Defendant Minnesota Department of Commerce (hereinafter Department of Commerce)

is a government agency of the State of Minnesota charged with oversight of private health insurance providers and health plans within the State, including reviewing requests of the Defendants HealthPartners and BCBSM to exclude medical coverages from Plaintiff’s health insurance plans. The Department of Commerce is located at 85 7th Place East, Suite 500, St. Paul, MN 55101-3165 in the County of Ramsey. The Department is represented by the Minnesota Attorney General’s office located at 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101. Max’s Medical Condition & Physical Development 9. Max either missed or was late in his milestones early in life, and was identified by his pri-

mary care physician to be delayed in his development by his first birthday. 10. Max began receiving special education services through an Individualized Education Plan

(IEP) at age one through the St. Cloud School District, where he then resided with Plaintiff. At that time, Max was assessed by the school district to fall at the first percentile of cognitive ability on the Cognitive subtest of the Bayley Scales of Infant Development. 11. At age one, Max was prescribed physical therapy at CentraCare in St. Cloud, Minnesota,

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because he could not walk due to developmental delay in his motor skills and hypotonia. Max learned to walk in physical therapy at CentraCare. 12. Max and Plaintiff moved to the Twin Cities when Max was two, and were referred to a

developmental pediatrician, physical therapy (for gross motor delay), occupational therapy (for fine motor delay), and speech therapy (for speech delay) by a Park Nicollet Provider, Debra Schulzetenberg, who diagnosed Developmental Delay. Plaintiff was referred to the Alexander Center to receive treatment for Max. Physical, occupational, and speech therapy were covered by insurance and paid for by Defendant HealthPartners. 13. At age two, Max also exhibited multiple violent tantrums daily, including episodes that

resulted or could result in injury to Max, and aggression toward other children and staff as well as social limitations and limited interests with obsessions in a limited range of topics. 14. Through Alexander Center, Max received speech therapy up to twice per week with Tina

Fawcett, was evaluated by a developmental pediatrician, Dr. Anna Kostanecka, and received psychological testing with Dr. Sarah Sander, a clinical psychologist with a Doctorate in psychology. Max was initially diagnosed with Pervasive Developmental Disorder - Not Otherwise Specified (PDD-NOS), which is a condition referred to as an Autism Spectrum Disorder (ASD), in approximately June 2008 at the Alexander Center by Dr. Sander, who has completed specialized training in Developmental Disabilities at Georgetown University as well as Johns Hopkins School of Medicine. She referred Plaintiff to again see Dr. Kostanecka. 15. For the purpose of this Complaint, Max’s condition shall hereinafter be referred to as

ASD. ASD is a disability that limits major life activities of those diagnosed with ASD. For Max, ASD limits several of major life activities including but not limited to socialization, communication, emotional regulation, and Max’s ability to care for himself and keep himself safe.
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16.

In the summer of 2008, Dr. Kostanecka of the Alexander Center referred the Plaintiff to

the Minnesota Early Autism Project to receive behavioral therapy for Max and parenting training due to the behaviors Max exhibited as a result of his ASD. 17. Minnesota Early Autism Project (hereinafter MEAP) provides intensive early behavior

therapy for children with ASD starting from ages 0-5 using behavior analysis and intervention techniques integrated with developmental and language instruction principles. 18. Max began treatment for ASD with MEAP shortly thereafter, explained in Paragraphs

35-49 below. 19. Max has received annual psychological evaluations at Alexander Center in 2008 and

2009 and in 2010 and 2011 from the University of Minnesota Pediatric Neurology Clinic, after the Alexander Center ceased providing those services. Maxwell is presently awaiting his 2012 evaluation. The 2009 Alexander Center and 2010 and 2011 University of Minnesota Pediatric Neurology Clinic evaluations recommended Plaintiff that she continue with MEAP services for the treatment of Max’s ASD. 20. As of the date of this Complaint, Max currently receives occupational therapy twice per

week due to fine motor skill deficits. Max received physical therapy until early November 2012 due to gross motor skill deficits, which remain. He received speech therapy in the summer of 2012. Autism Spectrum Disorder 21. The National Institute of Health on its website defines Autism as follows:

Autism as a complex developmental disability that causes problems with social interaction and communication. Symptoms usually start before age three and can cause delays or problems in many different skills that develop from infancy to adulthood. Health care

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providers think of autism as a “spectrum” disorder, a group of disorders with similar features. One person may have mild symptoms, while another may have serious symptoms. But they both have an autism spectrum disorder. Currently, the autism spectrum disorder category includes Autistic disorder (also called “classic” autism), Asperger Syndrome, and Pervasive Developmental Disorder Not Otherwise Specified (or atypical autism). In some cases, health care providers use a broader term, pervasive developmental disorder, to describe autism. This category includes the autism spectrum disorders above, plus Childhood Disintegrative Disorder and Rett syndrome. The National Institute of Health, on its website, lists as its first treatment method for the treatment of autism “behavioral therapy.” It states, “Behavior management therapy helps to reinforce wanted behaviors, and reduce unwanted behaviors. It is often based on Applied Behavior Analysis (ABA).” http://www.nichd.nih.gov/health/topics/asd.cfm 22. The Centers for Disease Control reports that about 1 in 88 children in the United States

has been identified with an autism spectrum disorder (ASD) according to estimates from CDC's Autism and Developmental Disabilities Monitoring (ADDM) Network. ASDs are reported to occur in all racial, ethnic, and socioeconomic groups. ASDs are almost 5 times more common among boys (1 in 54) than among girls (1 in 252). Prevalence of Autism Spectrum Disorders — Autism and Developmental Disabilities Monitoring Network, 14 Sites, United States, 2008, http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6103a1.htm?s_cid=ss6103a1_w. On its web site, the CDC informs the public of the treatment options for ASDs: A notable treatment approach for people with an ASD is called applied behavior analysis (ABA). ABA has become widely accepted among health care professionals and used in many schools and treatment clinics. ABA encourages positive behaviors and discourages negative behaviors in order to improve a variety of skills. The child’s progress is tracked and measured. http://www.cdc.gov/NCBDDD/autism/treatment.html 23. The Diagnostic and Statistical Manual of Mental Disorders 4th Edition (DSM-IV) de-

scribes the diagnostic features, in part, as follows:

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The essential features of Autistic Disorder are the presence of markedly abnormal or impaired development in social interaction and communication and a markedly restricted repertoire of activity and interests. Manifestations of the disorder vary greatly depending on the developmental level and chronological age of the individual. The DSM-IV also states that “[b]y definition, the onset of Autistic Disorder is prior to age 3 years.” 24. Autism, ASD and PDD-NOS are diagnoses within the category of Pervasive Develop-

mental Disorders category of the ICD (International Classification of Diseases) and DSM IV (Diagnostic and Statistical Manual of Mental Disorders), which is numerically identified under both classifications systems as code 299. All persons who meet the criteria of a 299 code are substantially limited in a major life activity. ICD codes are used by the insurance industry and Defendants for diagnostic, treatment, and billing purposes. 25. In Minnesota 1.4% of children are diagnosed with ASD.

http://graphics.latimes.com/usmap-autism-rates-state/ Behavioral Therapy to Treat Autism 26. Many terms are used to describe the intensive systematic behavioral interventions for

ASD. Early intensive behavioral intervention therapy (EIBI)1 is a term used to describe an intensive, multidisciplinary approach used to treat the symptoms of ASD. EIBI encompasses other treatment descriptors including, but not limited to, Intensive Early Interventional Behavioral Therapy (IEIBT), Intensive Behavior Intervention (IBI), Applied Behavioral Analysis (ABA), and the Lovaas Method. EIBI focuses on identifying behaviors that interfere with normal developmental processes, understanding the relationship between a behavior and the child’s environment, and modifying those behaviors to improve the child’s functional capacity. These intensive
1 For the purpose of this Complaint, “EIBI” shall be used to describe the systematic behavioral therapeutic interventions also referred to as ABA, IEIBT, and IBI therapy. There may be other acronyms to describe such therapy and interventions, and those are not intended to be excluded from reference herein. 7

therapies are most beneficial when administered early in a child’s development and delivered within a supervised, well-structured, and multidisciplinary team model. 27. EIBI is the primary and most effective treatment for children diagnosed with a Pervasive

Developmental Disorder, identified as code 299. 28. The State of Hawaii Department of Health Task Force determined that Intensive Behav-

ioral Treatment and Intensive Communication Training were the most successful method of treating autism, concluding The shape of the profile suggests that all successful treatments for autistic spectrum disorders involve teaching communication skills and modeling of appropriate communication or other behaviors. Other strategies include training in non-verbal communication (social skills), teaching parents and teachers to praise desired behaviors, and the setting of goals paired with the intensive rehearsal and reinforcement of behaviors consistent with those goals (i.e., discrete trial training). Chorpita, B.F. & Daleiden, E.L. (2009). 2009 Biennial Report: Effective psychosocial interventions for youth with behavioral and emotional needs. Child and Adolescent Mental Health Division, Honolulu: Hawaii Department of Health. 29. The American Psychological Association (the Society for Clinical Child and Adolescent

Psychology) conducted a study of effective treatments for Autism and concluded: Randomized controlled trials have demonstrated positive effects in both short-term and longer term studies. The evidence suggests that early intervention programs are indeed beneficial for children with autism, often improving developmental functioning and decreasing maladaptive behaviors and symptom severity at the level of group analysis. (Page 8). “Lovaas’s treatment meet Chambless and colleague’s (Chambless et al., 1998; Chambless et al., 1996) criteria for ‘well-established”’ (Page 8). Across all the studies we cited, improvements in language, communication, and IQ, and reduction in severity of autism symptoms indicate that the core symptoms of autism appear malleable in early childhood (page 30). Rogers, S.J., & Vismara, L.A. (2008). Evidence-based comprehensive treatments for early

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autism. Journal of Clinical Child and Adolescent Psychology. 37, 8-38. 30. Mayo Clinic and Harvard University pediatricians conclude that ABA is the best treat-

ment for ASD. “The weight of currently available scientific evidence, however, indicates that ABA should be viewed as the optimal, comprehensive treatment approach in young children with ASD.” Barbaresi, W.J., Katusic, S.K., & Voigt, R.G. (2006). Autism: A review of the state of the science for pediatric primary health care clinicians. Archives of Pediatric and Adolescent Medicine, 160. 1167-1175. 31. The Center for Autism Research at the Children's Hospital of Philadelphia determined

ABA was the most well researched and highly effective in the treatment of autism. The most well researched treatment programmes are based on principles of applied behaviour analysis. Treatments based on such principles represent a wide range of early intervention strategies for children with autism—from highly structured programmes run in one-on-one settings to behaviourally based inclusion programmes that include children with typical development. The first types of behavioural treatment programmes developed and examined were very structured, intensive, one-on-one programmes called discrete trial training, which were highly effective for up to half of children enrolled in four randomised clinical trials and six studies with closely matched comparison groups done in the past 20 years. Levy, S.E., Mandell, D.S., & Schultz, R.T. (2009). Autism. Lancet. 374, 1627-1638. 32. The American Academy of Pediatrics Council on Children With Disabilities acknowl-

edges ABA and intensive behavioral treatment are the best treatments for ASD. The effectiveness of ABA-based intervention in ASDs has been well documented through 5 decades of research by using single-subject methodology and in controlled studies of comprehensive early intensive behavioral intervention programs in university and community settings. Children who receive early intensive behavioral treatment have been shown to make substantial, sustained gains in IQ, language, academic performance, and adaptive behavior as well as some measures of social behavior, and their outcomes have been significantly better than those of children in control groups. (page 1164). Myers, S.M., Johnson, C.P. & the American Academy of Pediatrics Council on Children With Disabilities, (2007). Management of children with autism spectrum disorders. Pediatrics. 120, 1162–1182. doi:10.1542/peds.2007-2362. PMID 17967921. Available online at

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http://aappolicy.aappublications.org/cgi/reprint/pediatrics;120/5/1162.pdf. 33. Studies show that ABA and EIBI result in increased intellectual functioning and other de-

velopment of children with ASD, Results suggested that long-term, comprehensive ABA intervention leads to (positive) medium to large effects in terms of intellectual functioning, language development, Applied Behavior Analysis (ABA) and EIBI acquisition of daily living skills and social functioning in children with autism. Although favorable effects were apparent across all outcomes, language-related outcomes (IQ, receptive and expressive language, communication) were superior to non-verbal IQ, social functioning and daily living skills, with effect sizes approaching 1.5 for receptive and expressive language and communication skills. Dose-dependant effect sizes were apparent by levels of total treatment hours for language and adaptation composite scores. (page 387). Virues-Ortega, J. (2010). Applied behavior analytic intervention for autism in early childhood: Meta-analysis, meta-regression and dose–response meta-analysis of multiple outcomes. Clinical Psychology Review. 30, 387-399. The largest gain was in IQ; the behavioral treatment group showed an increase of 25 points (from 62 to 87) compared to 7 points (from 65 to 72) in the eclectic treatment group. (page 269). Eikeseth, S., Smith, T., Jahr, E., & Eldevik, S. (2007). Outcome for children with autism who began intensive behavioral treatment between ages 4 and 7: A comparison controlled study. Behavior Modification, 31, 264-278. Following 2 to 4 years of treatment, 11 of 23 children (48%) achieved Full Scale IQs in the average range, with IQ increases from 55 to 104, as well as increases in language and adaptive areas comparable to data from the UCLA project. At age 7, these rapid learners were succeeding in regular first or second grade classes, demonstrated generally average academic abilities, spoke fluently, and had peers with whom they played regularly. (page 433). Sallows, G.O., & Graupner, T.D. (2005). Intensive Behavioral Treatment for Children With Autism: Four-Year Outcome and Predictors. American Journal on Mental Retardation, 110, 417-438. 34. Research shows that negative or problem behaviors of children with ASD are reduced by

early intervention,
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The available intervention technology is reasonably effective at reducing problem behaviors performed by people with developmental disabilities, including autism. Reductions of 80% or greater were reported in half to two thirds of the comparisons. Reductions of 90% or greater were reported for all classes of problem behavior, and with individuals with all diagnostic labels. (page 429). Horner, R.H., Carr, E.G., Strain, P.S., Todd, A.W., & Reed, H.K. (2002). Problem behavior interventions for young children with autism: A research synthesis. Journal of Autism and Developmental Disorders. 32, 423-446. (The authors are professors at the University of Oregon, the State University of New York at Stony Brook, and the University of Colorado). Max’s Receipt of EIBI Therapy 35. Max began to receive EIBI therapy after an incident of violence. In the Summer of 2008,

Plaintiff brought Max to Choo Choo Bob’s Train Store, then Max’s favorite place in the world, to play with his favorite toys, Thomas the Tank Engine. When it was time to leave the store, Max threw himself to the floor in a tantrum. The Plaintiff picked Max up to take him to the car. Max then head butted the Plaintiff so hard, Plaintiff dropped him to the floor. Plaintiff had blurred vision, a ringing in in her head, and started to cry. Max also started to cry louder. Plaintiff believed she had a concussion and feared Max may also have an injury. Due to her blurred vision, Plaintiff could not pick up Max but instead pulled him by the hand out the nearby door, to her car that was parked just outside. Plaintiff then sat in the car with Max crying until she could see and drive him home. Staff from the store came to Plaintiff’s car window and inquired of Plaintiff whether she was ok. Due to Plaintiff’s embarrassment and sobbing, she waived the staff away and began to drive, still unable to see well. Plaintiff did not present for medical care because she feared the hospital would cite her as unable to meet Max’s special needs. At this time, Plaintiff had begun to fear that Max would need to be placed at some point during his youth in a group home due to dangerous behaviors, when he became too big for her to handle. 36. Just days after this incident, Plaintiff sought more help in meeting Max’s needs and ulti11

mately contacted MEAP and requested services after receiving the referral from Dr. Anna Kostanecka of the Alexander Center. 37. In the summer of 2008, Max was involuntarily discharged a second time from a daycare

provider due to his developmental delay and behaviors. 38. Max and Plaintiff started receiving EIBI through individual and family skills training

through MEAP on or about August 2008. At that time, Max started the Temple Israel daycare. Plaintiff chose this daycare because the synagogue with which it is affiliated sponsored a play about raising children with ASD, and Plaintiff thought the facility would be able to meet Max’s special needs. 39. Max received onsite EIBI at his daycare with MEAP staff and Plaintiff and Max received

family skills training at Plaintiff’s home and in the community up to 40 hours per week. Max’s EIBI consisted of therapy targeting the core deficits of ASD, including communication, socialization, restrictive and repetitive and stereotyped behaviors, as well challenging behaviors that impeded him from participating in everyday activities, including aggressive and self-injurious behaviors. 40. EIBI also includes a family skills component, wherein the caregiver receives skills and

education needed to implement behavioral programs and reinforcements at home in in the disabled child’s environment. Plaintiff received family skills training through MEAP. As such, Plaintiff asserts all claims on behalf of Max on her own behalf as well, as a direct and indirect participant and beneficiary of EIBI. 41. Approximately one year prior to starting kindergarten, Plaintiff inquired of her local

school district what educational services Max could receive for his kindergarten year. The Minneapolis Public School District (MPSD), where the Plaintiff and Max reside, assessed Max and

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determined that Max is ineligible for a public education wherein he would be 100% integrated into a classroom with his non-disabled peers. 42. During the winter of 2011, Plaintiff was offered an IEP from the MPSD to start in the fall

of Max’s kindergarten year wherein the District stated it would remove Max from the normal classroom up to 75% of his day. Plaintiff adamantly objected and was informed that the lowest maximum percentage of time MPSD would agree to remove Max was 25%. MPSD would not agree that Maxwell would be integrated into the normal classroom 100% of his day. 43. Because Max tested as having a normal IQ, Plaintiff sought alternative educational op-

tions where Max could have as normal a life as possible and be socialized with typically developing children 100% of his day. Plaintiff met with the Amos & Celia Heilicher Minneapolis Jewish Day School (HMJDS) and its staff after being introduced to the program through Max’s preschool. After multiple observations by HMJDS’s on-site school psychologist, Ms. Gay Rosenthal, M.A., of Max and several meetings with Max’s preschool staff, Plaintiff, and Max’s MEAP team members, HMJDS agreed to accept Max into its program where he would be integrated 100% of his day with non-disabled peers on the condition that MEAP staff provide EIBI as needed for Max to integrate into the school environment. 44. MEAP provided a range of 20-35 hours per week of EIBI during the 2011-2012 academic

year in the classroom with Max where he was integrated full time with his non-disabled peers. Max initially stopped receiving EIBI through MEAP at the end of the kindergarten year, in June 2012. 45. Max is now in 1st grade at HMJDS. He is included 100% of his time in the normal class-

room, with a personal care attendant (PCA) present to assist him in the classroom. Max has friends who he loves and who reciprocate the same affection for him. Max is even somewhat no-

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torious due to his eccentric love for the game Angry Birds. Max has been invited to sleep overs, birthday parties, and at the time first grade classrooms rosters were made, another parent requested her child be placed in the same class as Max for her own son’s social benefit. 46. Max also continues to face challenges due to ASD. He cannot tie his shoes, bathe or

groom himself without prompts, or maintain his safety. Max could not or would not report an incident of abuse or violence, cannot relate basic events in his day, or carry on a two-minute coherent conversation about non-favorite topics. Yet Max has friends who want to play with him, exhibits loyalty to those friends, packs backpacks full of toys to share with other children and providers, participates in integrated Parks & Recreation programs, attends piano lessons and reads music, loves to read books (with a limited preference for Captain Underpants), tells jokes which generally make no sense, and is a very happy and funny kid. 47. Although Plaintiff is not Jewish, Max has attended Jewish schools since age 3 and be-

lieves he is Jewish, speaks and reads Hebrew with the same fluency as his classmates, and observes the Jewish traditions at home. 48. On or about September and October 2012, it became apparent that Max was experiencing

a behavioral regression in the progress he had made previously. Although Max had equally skilled HMJDS school staff, and a PCA with him, the school and PCA were unable to manage his behaviors caused by ASD. Max began clawing himself, increased “edging,” making aggressive utterances and self stimulating sounds, including humming and high-pitched squeals, getting multiple daily timeouts, hit another child and exhibiting highly disruptive defiant behaviors in the classroom. It became clear to HMJDS staff and Ms. Rosenthal that Max could not maintain himself in the HMJDS classroom environment. At the suggestion of HMJDS, Plaintiff contacted MEAP and requested assistance. Shannon Heuer, Max’s MEAP team supervisor, went to

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HMJDS, observed Max’s classroom and daily activities, assessed the situation, consulted with staff of HMJDS and Max’s PCA, implemented a new “token economy” (a program of systematic and measured behavioral reinforcement) and behavior plan and provided advice as to how the staff could use ABA strategies to address the ASD-related behaviors. Since that time, Max is again achieving socially and educationally with great success. His timeouts have been reduced to less than one per day and he has not exhibited any hitting or other aggressive physical contact. 49. Plaintiff requests that BCBSM be required to continue to cover such services as needed

for the remainder of the school year and ongoing as needed to enable Max to continue to be educated in his current educational environment at HMJDS. Maxwell’s Improvement due EIBI 50. Due to EIBI, Max’s incidence of violent episodes have gone from as many as 20 per

hour to few to none in any given week. 51. 52. Max no longer hits other children due to his behavioral training. Max now tests with an IQ of approximately 98 (which is in the range of normal intelli-

gence), and displays average intelligence despite testing at the first percentile of intellectual ability at age one as a result of EIBI. 53. 54. Max is no longer diagnosed with Developmental Delay due to the gains he has made. Max exhibits academically typical skills to his classmates that do not have ASD and is

immersed 100% of his day with non-disabled peers. 55. 56. Due to EIBI, Max has not hit the Plaintiff in three years. Plaintiff has no fears about whether she will be able to safely raise Max to the age of ma-

jority because the dangerous behaviors have been eliminated.

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57.

Plaintiff believes EIBI has reduced or eliminated the likelihood Max will have to live in a

group home or residential setting for persons with disabilities. Defendant’s Denials of Coverage - HealthPartners 58. Max was covered by a private HealthPartners insurance plan at birth due through his

mother’s employment at a legal services organization. At approximately age 2, when Max was referred to speech therapy, HealthPartners denied his speech therapy, granting only minimal time with a therapist essentially to teach Plaintiff how to work at home with Max. 59. Immediately upon receiving that denial, Plaintiff applied for Medical Assistance coverage

through the TEFRA program, a health insurance program for disabled children administered through the Minnesota Department of Human Services (DHS), through Hennepin County Economic Assistance, fearing Max would be without needed medical services. Lad Sledz, a Hennepin County social worker worked with Plaintiff. Max was referred to the State Medical Review Team (SMRT), which found Max to be disabled and eligible for Medical Assistance as a person with a disability. Max now has TEFRA coverage as a secondary-insurer. 60. Plaintiff simultaneously filed an administrative appeal with HealthPartners. HealthPart-

ners referred the appeal to an external review agency for medical review with a licensed speech therapist as well as a HealthPartners Associate Medical Director, who determined Max was eligible for weekly speech therapy in its decision dated January 24, 2008. 61. Max’s EIBI (referred to as IEIBT by HealthPartners) was denied based on a contract ex-

clusion in Plaintiff’s employer’s health insurance policy, stating: Services Not Covered: In addition to any other benefit exclusions, limitations or terms specified in this Contract, we will not cover charges incurred for any of the following

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services, except as specifically described in this Contract: 5. Intensive behavioral therapy treatment programs for the treatment of autism spectrum disorders, including ABA, IEIBT and Lovaas 62. Plaintiff was unaware of this exclusion until the EIBI was denied, as she had not read the

policy nor needed EIBI at the time of Max’s birth. 63. Plaintiff appealed that decision. Plaintiff’s initial appeal went through HealthPartners’ internal appeal program for services rendered in 2008 and 2009. In its denial letter dated February 20, 2009, HealthPartners stated that three separate doctors reviewed Max’s medical records. The letter further explained that after careful review, the services rendered were determined to be IEIBT and subject to the contract exclusion. That letter did not address Max’s actual need for EIBI services. That letter provided Plaintiff the right to present her request to the Board of Directs Member Appeals Committee in person. 64. On Thursday, March 26, 2009 at 5:30 p.m., Plaintiff and Max appeared before the Health-

Partners Board of Directs Member Appeals Committee in person and Plaintiff explained the benefits of EIBI to the Board and requested the coverage be allowed. Max also interacted with Board members. The Board was kind to Plaintiff, leaving Plaintiff hopeful of a positive result. 65. After speaking to the Board of Directors, Plaintiff received another denial letter, dated

March 27, 2009, stating, “As you know, your family’s plan specifically excludes coverage of Early Intervention using Behavioral Therapy (IEIBT) Services.” Further the letter stated, The Board of Directors Appeals Committee members understood that these services have been beneficial for Maxwell, and they appreciate that you are advocating for your son. Unfortunately, the Committee was unable overturn the plan’s exclusion of coverage for these services. 66. The March 27, 2009 letter then referred the Plaintiff to obtain services who perform ser-

vices eligible for plan coverage. Those three providers are: (1) Fraser Child and Family Center,
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(2) Park Nicollet Alexander Center and (3) Associated Clinic of Psychology. Specifically, the letter told Plaintiff that she could obtain “Behavioral management training/therapy” and “Family therapy and parent consultations” from the Alexander Center. In fact, Plaintiff had already been to Alexander Center, consulted with multiple Alexander Center providers, and was referred by both an Alexander Center medical doctor to MEAP. Plaintiff was informed that she could obtain “Autism Spectrum Disorders Day Treatment Program, Fraser Autism Program, including individual child, group, and family therapies” from Fraser. Defendant HealthPartners knows or should know that Fraser provides ABA therapy, which is a listed exclusion. Fraser offers no therapeutic program for children with autism to receive treatment while in the presence of typically developing peers. Plaintiff was also offered “Outpatient talk therapy and Child psychotherapy and medication management” from Associated Clinic of Psychology. Max did not receive nor was a candidate for medications at the time, and was not an appropriate candidate for talk therapy or psychotherapy due to his age and communicative ability. 67. 68. Plaintiff did not appeal the March 27, 2009 decision. On November 26, 2010, Plaintiff filed another appeal of HealthPartners’ denial of EIBI.

She received a letter dated December 7, 2010 informing her that the service was denied due to a contract exclusion and that Plaintiff had exhausted her internal HealthPartners appeal options. Plaintiff was referred to MAXIMUS, an independent review organization contracted with the State of Minnesota. 69. Plaintiff believed that an external review might obtain a critical review of Max’s individ-

ual need for EIBI and decided to try the MAXIMUS appeal. MAXIMUS is a company contracted by the Minnesota Department of Commerce and the Minnesota Department of Health to independently review appeals made by individuals who disagree with denials that their health plan

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has made concerning requested services. 70. As part of that appeal, Plaintiff was required to provide MAXIMUS all of Max’s medical

records, even though those records had been available to the Defendants. Plaintiff diligently gathered and overnighted the records to MAXIMUS, and provided a comprehensive statement regarding the reasons she believed EIBI should be covered for Max, including the many gains that had resulted for Max and her from EIBI. 71. In its decision dated February 26, 2011, MAXIMUS determined that Max’s IEIBT was

specifically excluded from coverage by the HealthPartners’ contract and therefore the denial of coverage for EIBI was appropriate under the terms of the contract and Maximus’ review was confined to the contract issues and “cannot order deviation from the terms of the Health Plan’s contract.” In its decision, MAXIMUS noted that Max’s symptoms met the diagnostic criteria for “pervasive developmental disorder” and that he was “an appropriate candidate for intensive early behavioral therapy.” 72. Plaintiff filed a complaint with the Minnesota Department of Human Rights alleging Max

was discriminated against on the basis of disability due to the contract exclusion barring him from receiving EIBI under the HealthPartners insurance policy against HealthPartners and the Minnesota Department of Commerce, and that complaint was dismissed on May 4, 2011 by the MDHR, which determined “the Department’s resources [were] not warranted.” - BlueCross and BlueShield of Minnesota 73. On May 2, 2011, BCBSM implemented a Medical and Behavioral Health Policy Manual

covering the terms under which BCBSM covered EIBI. BCBSM provided coverage for EIBI under this policy. 74. Plaintiff became self employed in 2010 when she started a two-attorney law firm. Plain-

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tiff and chose BCBSM as the health insurance provider for the company because it provided EIBI coverage. Plaintiff and Max’s coverage through Defendants BCBSM started January 1, 2012. 75. On or about February 7, 2012, Defendants BCBSM denied Max’s coverage of EIBI based

upon its rationale that the therapy was “not medically necessary.” 76. Plaintiff appealed that decision within Defendants BCBSM’s internal appeal program. On

March 23, 2012, Defendants BCBSM reversed its decision, finding the EIBI was medically necessary for Max after the decision was reviewed by a Board Certified physician in a Doctorate level of Psychology. In reversing the decision, Defendants BCBSM determined the EIBI was medically necessary for Max 20 hours per week, 10 hours less than the provider-requested 30 hours per week. Plaintiff did not appeal this decision. 77. On or about November 19, 2012, Plaintiff received the denial letter from Defendants

BCBSM dated November 15, 2012 stating that Defendants BCBSM made the decision to exclude EIBI based on a survey of other providers. Through claims review, Blue Cross Blue Shield of Minnesota health plan will no longer include coverage for Early Intensive Behavioral Intervention (EIBI) or Applied Behavioral Analysis (ABA) services. As part of our annual review of benefits, Blue Cross evaluated coverage practices throughout the industry regarding services to treat autism, including Early Intensive Behavioral Intervention (EIBI) therapy. Our review demonstrated that the prevailing practice is to cover medical services for autism, but EIBI typically is not covered. Blue Cross made a decision to move in that direction as well, on order to align our coverage approach across all fully insured plans as they renew. This change applies only to one form of specialized behavioral therapy, and Blue Cross will continue to cover a wide range of medical services related to autism, including diagnosis and other forms of therapy, including speech physical, and occupational therapies. 78. Plaintiff called the phone number for customer service provided on the letter to inquire of

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any appeal options, as none were provided. Plaintiff was informed on November 20, 2012 by two BCBSM representatives (Lindsay H. and Michael Hacker) that because Plaintiff was in disagreement with a contract exclusion, there were no appeal remedies available. 79. Plaintiff disputes the claims made by Defendants BCBSM regarding the stated coverage

practices throughout the industry. The National Conference of State Legislatures released the following data: A total of 37 states and the District of Columbia have laws related to autism and insurance coverage. At least 31 states—Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, Virginia, West Virginia and Wisconsin—specifically require insurers to provide coverage for the treatment of autism. Alabama requires insurers to offer autism coverage in certain situations. Vermont amended their law to cover treatment for early childhood developmental disorders, which includes autism spectrum disorders. Other states may require limited coverage for autism under mental health coverage or other laws. http://www.ncsl.org/issues-research/health/autism-and-insurance-coverage-state-laws.aspx 80. The Patient Protection and Affordable Care Act (ACA) names mental and behavioral

treatment as an Essential Benefit. It is disingenuous for Defendants BCBSM to declare that excluding coverage of EIBI is a genuine or accepted trend within the medical or insurance industries. http://childhealthdata.org/docs/drc/amchp-issue-brief---the-aca-and-cy-with-asd-dd-2012-

february.pdf 81. Plaintiff has filed this Complaint in good faith, and it is based upon facts believed to be

true by the Plaintiff. Although Plaintiff is a licensed attorney, she practices in areas other than health insurance and proceeds pro se at this time. She may employ counsel at some point during the case. COUNT I:

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VIOLATIONS OF MINNESOTA’S MENTAL HEALTH PARITY ACT MINNESOTA STATUTES §62Q.47 and §62Q.53 82. 83. Plaintiff restates and realleges all prior paragraphs of this Complaint. Minnesota adopted the Mental Health Parity Act requiring that prohibit health insurance

providers from placing greater restrictions on behavioral health services than on comparable physical health services. 84. Excluding EIBI, the primary and most effective therapy for conditions classified by code

299 in the DSM-IV violates the Minnesota Mental Health Parity Act and its legislative directive. 85. Defendant Department of Commerce has approved this exclusion in direction violation of

the legislative directive. 86. Allowing Defendants HealthPartners and BCBSM to exclude EIBI allows the Defendants

to pick and choose any sickness they desire to cover, which is contrary to the legislative intent and the terms of the Act. COUNT II: VIOLATIONS OF MINNESOTA’S HUMAN RIGHTS ACT 87. 88. Plaintiff restates and realleges all prior paragraphs of this Complaint. Minnesota Chapter 363A, including but not limited to Minnesota Statutes §363A.03 and

§363A.11, Subd. 1 prohibit the denial of any person of the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of disability. 89. The Defendants HealthPartners and BCBSM are places of public accommodation where-

in they are businesses whose services are sold or otherwise made available to the public.

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90.

A health insurance policy and its administration is a service subject to the Minnesota Hu-

man Rights Act. 91. The Defendants HealthPartners and BCBSM have discriminated against Max based on

his disability, ASD, categorized as a Pervasive Developmental Disorder (Code 299 of the DSM IV and ICD 9) when they excluded EIBI, the primary and most effective treatment for ASD, and a treatment that only a person with a disability can receive. 92. The Defendants HealthPartners and BCBSM have discriminated against Plaintiff based

on her association with Max when they have denied Plaintiff needed family skills training from MEAP so that she can effectively and safely parent Max. 93. The Defendant Department of Commerce discriminated against Max and Plaintiff based

on disability when they approved the contract exclusion of the Defendants HealthPartners and BCBSM denying EIBI and family skills training in violation of Minnesota Statute §363A.12. 94. The exclusions discriminate against a small portion of the population, who by definition

manifest a disability by age 3, and irreparably harms them by depriving them of the most effective and primary treatment available for their condition, a treatment which is widely accepted in the United States of America, including by the National Institutes of Health (NIH) and the Centers for Disease Control (CDC). COUNT III: VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT 95. 96. Plaintiff restates and realleges all prior paragraphs of this Complaint. Title II of the Americans with Disabilities Act also prohibits State entities from discrimi-

nating against persons with disabilities. (28 CFR §35.102-35.104)

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97.

Title III of the Americans with Disabilities Act (28 CFR Part §36) classifies private

healthcare care services as a public accommodation and prohibits discrimination in the administration of health care. 98. The Defendants HealthPartners and BCBSM have discriminated against Max in violation

of the ADA based on his disability, ASD, categorized as a Pervasive Developmental Disorder (Code 299 of the DSM IV and ICD 9) when they excluded EIBI, the primary and most effective treatment for ASD, and a treatment that only a person with a disability can receive. 99. The Defendants HealthPartners and BCBSM have discriminated against Plaintiff in viola-

tion of the ADA based on her association with Max when they have denied Plaintiff needed family skills training from MEAP so that she can effectively and safely parent Max. 100. The Defendant Department of Commerce discriminated against Max and Plaintiff in vio-

lation of the ADA based on disability when they approved the contract exclusion of the Defendants HealthPartners and BCBSM denying EIBI and family skills training. 101. The exclusions discriminate against a small portion of the population, who by definition

manifest a disability by age 3, and irreparably harms them by depriving them of the most effective and primary treatment available for their condition, a treatment which is widely accepted in the United States of America, including by the National Institutes of Health (NIH) and the Centers for Disease Control (CDC). COUNT IV: VIOLATION OF MINNESOTA CHAPTER §72A.20, Subds. 8-9 102. 103. Plaintiff restates and realleges all prior paragraphs of this Complaint. Minnesota Statute Chapter 72A governs the trade practices of the insurance industry.

Minnesota Statute §72A.20 prohibits an insurance companies from discriminating based on dis-

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ability. 104. The Defendants HealthPartners and BCBSM unlawfully discriminate against Max, as a

child with ASD, a Pervasive Developmental Disorder, where their health plans exclude the primary and most effective medical treatment of Max’s disability. COUNT V: VIOLATION OF MINNESOTA’S CONSTITUTION 105. 106. Plaintiff restates and realleges all prior paragraphs of this Complaint. Section §7 of the Minnesota Constitution provides that “No person shall be...deprived of

life, liberty or property without due process of law.” 107. The external appeal system, MAXIMUS, provided by the Department of Commerce does

not afford the Plaintiff an actual appeal where it merely rubber stamped the decision of HealthPartners to exclude EIBI based on the contract exclusion and did not consider the Plaintiff's evidence or the merits of the request that EIBI or family skills should be covered for Max and Plaintiff. 108. Where persons with Pervasive Developmental Disorder or ASD are required to use the

external review program due obtain review of a plan’s decision to deny or exclude EIBI, and 100% of those decisions will come back with denials because of the external reviewer’s own policy or practice to uphold contract exclusions, no external review has in fact occurred. Therefore, as MAXIMUS has operated in this case, the Department of Commerce failed to provide Plaintiff an adequate system of appeal where the policy or practice of the external reviewer is to approve all contract exclusions thereby violating Plaintiff’s right to due process. 109. Plaintiff and Max are being denied access to the primary and most effective treatment for

ASD. It is reasonable to conclude that without EIBI, Max’s ASD-related behaviors will increase

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and Max will suffer loss of immediate educational opportunity if he is removed from his present school as well as long term educational, health, and social opportunities. Long-term opportunities that will be lost if he is unable to receive needed EIBI include educational pursuit, pursuit of work, independent living, marriage and adult relationships, and pursuit of self determination. COUNT VI: VIOLATION OF MINNESOTA STATUTES §§62Q.69-73 110. 111. Plaintiff restates and realleges all prior paragraphs of this Complaint. Minnesota Statutes §§62Q.69-73 mandate a structure for review of decisions made by

health insurance plans, including internal and external review of and adverse determination regarding health care benefits. 112. In this case, only Defendant HealthPartners offered Plaintiff an internal review. 113.

Defendants BCBSM offered no appeal process for Plaintiff to appeal the exclusion of EIBI for Max. 114. The external system, MAXIMUS, provided by the Department of Commerce merely rub-

ber stamped the decision of HealthPartners to exclude EIBI based on the contract exclusion and did not consider the Plaintiff's evidence, and therefore the Defendants HealthPartners and the Department of Commerce failed to provide Plaintiff an adequate system of appeal. 115. Where persons with Pervasive Developmental Disorder or ASD are required to use the

external review program due obtain review of a plan’s decision to deny EIBI, and 100% of those decisions will come back with denials because of the external reviewer’s own policy to uphold contract exclusions, no external review has in fact occurred thereby violating Minnesota Statutes §§62Q69-73.

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116.

In regard to Defendant HealthPartners, Plaintiff exercised every available appeal remedy

to obtain EIBI and was told that coverage was unavailable based on a contract exclusion, even thought Max clearly benefitted from the services. Plaintiff could obtain no critical review of the contract exclusion or necessity of the EIBI services for Max. In simple terms, Plaintiff had the ability only to enter appeal which would always return a decision that the contract exclusion is appropriately upheld by virtue of its printing, and no agency offers a determination as to whether Max is entitled to services as a matter of right or necessity. 117. In regard to Defendants BCBSM, Plaintiff has been told that no appeal remedy exists be-

cause coverage is unavailable based on a contract exclusion, thereby violating Minnesota Statute §62Q.73. COUNT VII: VIOLATION OF THE PATIENT PROTECTION AND AFFORDABLE CARE ACT (PPACA), PUBLIC LAW 111-148, §2719, 42 USC § 300gg–19 118. 119. Plaintiff restates and realleges all prior paragraphs of this Complaint. By failing to provide the Plaintiff an internal claims appeal process and an effective ex-

ternal review, Defendants BCBSM violated the PPACA. COUNT VIII: VIOLATIONS OF THE 14TH AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES GUARANTEEING ALL PERSONS THE EQUAL PROTECTION OF THE LAWS 120. Plaintiff restates and realleges all prior paragraphs of this Complaint.

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121.

The Defendants’ contract exclusions single out persons with Pervasive Developmental

Disorders, including those with ASD, as those unable to receive the primary and only effective therapy for the treatment of the behaviors associated with ASD. 122. At all times relevant to this Complaint, Max has been diagnosed with Autism and Perva-

sive Developmental Disorder Not Otherwise Specified, Codes 299.0 and 299.80 of the ICD-9 and DSM IV respectively. 123. The contract exclusions do not apply generally to all persons covered by the plan. These

exclusions apply only to persons categorized with a 299 code under the ICD 9 or DSM IV. 124. The Defendant Department of Commerce, charged with oversight of the Defendants

HealthPartners and BCBSM’s contracts approved these contract exclusions leaving the Plaintiff without needed medical coverage. 125. The Defendants HealthPartners and BCBSM then assert that they are lawfully excluding

medical coverage, because they have the support of the Defendant Department of Commerce. 126. In singling out persons with a Pervasive Developmental Disorder to be without necessary

medical treatment, Minnesota Statutes Chapter 62L including but not limited to Minnesota Statute §62L.056, as followed by the Department of Commerce, violate the Equal Protection Clause of the Fourteenth Amendment. 127. Minnesota Statute §62L.056 is facially unconstitutional insofar as it seeks to exempt Max

from protection of laws. COUNT IX: VIOLATION OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 (ERISA), §502(a)(1) and (a)(3) 128. Plaintiff restates and realleges all prior paragraphs of this Complaint.
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129.

The Defendants HealthPartners and BCBSM have, by their actions, discriminated

against, interfered with, the Plaintiff’s right to receive health benefits needed for Max and Plaintiff, as caregiver of Max by excluding EIBI in violation of ERISA. 130. Additionally, Defendants BCBSM has failed to provide Plaintiff with appeal notice and

rights as required by ERISA. 131. Plaintiff hereby seeks to enforce her rights and clarify her right to have Max receive

EIBI. 29 U.S.C. §1132(a)(1)(B). WHEREFORE, Plaintiff Tracy Reid individually and on behalf of her son, Max, respectfully asks this Court to enter judgment against Defendants HealthPartners, BCBSM, and the Department of Commerce, awarding the following relief:

1.

Declaratory relief and preliminarily and permanently enjoining Defendants BCBSM from discontinuing and excluding Plaintiff’s EIBI therapy in violation of Minnesota’s Mental Health Parity Act;

2.

Declaratory relief and preliminarily and permanently enjoining Defendants HealthPartners and Defendants BCBSM from discontinuing and excluding Plaintiff’s EIBI therapy in violation of ERISA;

3.

Preliminarily and permanently enjoining Defendant Department of Commerce from approving a contract exclusion that is discriminatory or in violation of the laws of the State of Minnesota;

4.

Providing Plaintiff the federal and state mandated appeal process in which she can appeal the exclusion of EIBI by Defendants BCBSM and ordering Plaintiff’s EIBI to remain covered pending such appeal;

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5.

Awarding Plaintiff costs of the action and reasonable attorneys fees - in the event Plaintiff retains counsel;

6.

Such other relief as the Court deems just and appropriate.

Respectfully Submitted, Date: _______________ _______/s/___________________ Tracy Reid

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