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Case 3:11-cv-30178-WGY Document 1 Filed 06/28/11 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

WESTERN DIVISION



MITCHELL CLIONSKY, d/b/a
NEURO-PSYCHOLOGY ASSOCIATES OF
WESTERN MASSACHUSETTS,
on behalf of himself and all others similarly
situated,

Plaintiffs


v.

CIGNA CORPORATION,

Defendant




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CIVIL ACTION NO.:





CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED

INTRODUCTION

1.

This is a class action complaint brought by Plaintiff, Mitchell Clionsky, d/b/a

Neuro-Psychology Associates of Western Massachusetts (Dr. Clionsky) individually and on

behalf of all similarly situated health care providers, against CIGNA Corporation (CIGNA).

This action challenges CIGNA?s reimbursement of certain procedures used by Dr. Clionsky and

members of the class in treating patients covered by health insurance policies issued by CIGNA.

2.

This action challenges CIGNA?s practice of arbitrarily and unilaterally reducing

medical expense claims rendered to CIGNA insureds by Plaintiff and Class Members.

3.

Plaintiff, on behalf of himself and all other similarly situated, brings the following

claims against the Defendant: a) breach of contract; b) breach of the implied covenant of good

faith and fair dealing; and c) violation of Mass. Gen. Laws, Chapter 93A, Section 11.

JURISDICTION

4.

Plaintiffs invoke the jurisdiction of this court pursuant to 28 U.S.C. § 1332

because the action is between parties that are citizens of different states and the amount in

controversy is greater than $75,000. CIGNA?s Corporate Headquarters are located at Two




Case 3:11-cv-30178-WGY Document 1 Filed 06/28/11 Page 2 of 8

Liberty Place, 1601 Chestnut Street, Philadelphia, Pennsylvania 19192-1550.1 The named

Plaintiff is a citizen of Massachusetts.

5.

This court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(d)(2) in

that it is brought as a putative class action in which the matter in controversy exceeds the sum or

value of $5,000,000, exclusive of interest and costs, and at least one member of the class of

plaintiffs is a citizen of a state different from any defendant.

6.

Venue is proper in this court pursuant to 28 U.S.C. § 1391(b) inasmuch as

Defendant resides in this District and regularly conducts business in this District by providing a

variety of individual and group health plan benefits to persons residing in Massachusetts.2

PARTIES

7.

The named Plaintiff, Mitchell Clionsky, d/b/a Neuro-Psychology Associates Of

Western Massachusetts, (hereinafter, “Neuro-Psychology Associates”), provides psychological

services and testing with a principal place of business at 155 Maple Street, Suite 203,

Springfield, Massachusetts 01105.

8.

The Defendant, CIGNA Corporation, (hereinafter, “CIGNA”), is a global health

services company located at Two Liberty Place, 1601 Chestnut Street, Philadelphia,

Pennsylvania 19192-1550, and provides health plan benefits in all 50 states and the District of

Columbia.

FACTUAL BACKGROUND

9.

Neuro-Psychology Associates provides reasonable and necessary services to a

number of individuals entitled to benefits under health insurance policies issued by CIGNA.


1 For diversity jurisdiction purposes, a corporation is a citizen of the state where it has “its principal place of
business.” 8 U.S.C. § 1332(c)(1). The term “principal place of business” refers to “[a] corporation?s „nerve center,?
[which is] usually its main headquarters….” Hertz Corp. v. Friend, --- U.S. ----, 130 S.Ct. 1181, 1192 -1193, 175
L.Ed.2d 1029 (2010).
2 “[A] defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to
personal jurisdiction at the time the action is commenced.” 28 U.S.C. § 1391(c). A state long-arm statute furnishes a
mechanism for personal jurisdiction in federal court. U.S. v. Swiss American Bank, Ltd., 191 F.3d 30, 36 (1st
Cir.1999) (citing Fed.R.Civ.P. 4(k)(1)(A)). The Massachusetts long-arm statute permits personal jurisdiction over a
person transacting any business, contracting to supply services or things, or contracting to insure any person,
property or risk located within this commonwealth. Mass. Gen Laws. ch. 223A, § 3.



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10.

Neuro-Psychology Associates describes the services it provides to patients

utilizing the Current Procedural Terminology (“CPT”) code set developed and maintained by the

American Medical Association and used to facilitate communication and reporting between

health care providers and health care payors like CIGNA.

11.

CIGNA has continually denied reimbursement for several CPT codes submitted to

CIGNA by Neuro-Psychology Associates for services that are necessary and properly payable.

12.

13.

The codes in dispute are CPT codes 96118, 96119, and 96120.

CPT code 96118 is a “professional” code and may only be submitted for services

rendered by a fully-licensed psychologist or physician.

14.

CPT code 96119 is a “technical” code used for face-to-face testing administered

by an individual who is licensed at less than the Ph.D. level.

15.

16.

CPT code 96120 is the used for testing administered by computer.

Health care providers in the United States may bill one or more codes

simultaneously using Modifier -59, used to indicate distinct procedural services all reimbursable

by the health care payor.

17.

CIGNA has repeatedly denied reimbursement to Neuro-Psychology Associates

using Modifier -59 for CPT codes 96119 and 96120 when these services are properly payable.

18.

The dollar amount of services improperly denied by CIGNA solely to the

named Plaintiff alone totals $11,295.56.

CLASS ALLEGATIONS

19.

20.

Plaintiffs repeat and re-allege every allegation above as if set forth herein in full.

This class action is brought by the Plaintiffs on behalf of themselves and all health

care providers in the United States and its territories who submit CPT codes 96118, 96119, and

96120 to CIGNA for reimbursement of properly payable services.

21.

Plaintiffs sue on their own behalf and on behalf of a class of persons under Rule

23 of the Federal Rules of Civil Procedure.

22.

Plaintiffs do not know the exact size or identities of the members of the proposed



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Case 3:11-cv-30178-WGY Document 1 Filed 06/28/11 Page 4 of 8

class because such information is in the exclusive control of Defendant. Given the global

operation of the Defendant, Plaintiffs reasonably believe that the class encompasses hundreds or

thousands of individuals whose identities can be readily ascertained from Defendant?s books and

records. Therefore, the proposed class is so numerous that joinder of all members is

impracticable.

23.

Based on the number of individuals enrolled in CIGNA individual and group

health plans and the size of the reimbursements at issue, Plaintiffs reasonably believe the amount

in controversy exceeds $5 million.

24.

All members of the class have been subject to and affected by the same conduct.

The claims are based on health care benefits contracts and uniform provider reimbursement

requirements. There are questions of law and fact that are common to the class that predominate

over any questions affecting only individual members of the class. These questions include, but

are not limited to the following:

a. Whether the reimbursement practices complained of constitute a breach of

the insurance contracts;

b. Whether and to what extent Plaintiff and Class Members were harmed by

the Defendant?s improper conduct; and

c. The proper measure of damages sustained by Plaintiff and Class Members.

25.

The claims of the named Plaintiff are typical of the class claims and do not

conflict with the interests of any other class members in that both the Plaintiff and the other class

members were subject to the same or similar health care benefits contracts, uniform provider

reimbursement requirements, and/or other agreements/policies issued by the Defendant, and

subject to the same conduct of the Defendant, namely, denial of reimbursement for properly

payable services.

26.

The named Plaintiff will fairly and adequately represent the interests of the class,

is committed to the vigorous prosecution of the class claims, and has retained attorneys who are

qualified to pursue this litigation and have experience in class actions.



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27.

A class action is superior to other methods for the fast and efficient adjudication

of this controversy. A class action regarding the issues in this case does not create any problems

of manageability.

28.

This putative class action meets at least one of the requirements of Fed. R. Civ. P.

23(b).

29.

30.

COUNT I

BREACH OF CONTRACT

Plaintiffs repeat and re-allege every allegation above as if set forth herein in full.

Plaintiffs bring this claim on their own behalf and on behalf of each member of

the Class described above.

31.

Neuro-Psychology Associates is an intended third-party beneficiary of the

insurance contract(s) between CIGNA and patients of Neuro-Psychology Associates.

32.

CIGNA?s denial of reimbursement constitutes a breach of contract with its

insured, and a breach of contract rights granted to Neuro-Psychology Associates as an intended

third-party beneficiary of the contract(s).

33.

As a result of CIGNA?s breach of contract, Neuro-Psychology Associates has

suffered damages and incurred fees and costs.

COUNT II

BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

34.

35.

Plaintiffs repeat and re-allege every allegation above as if set forth herein in full.

Plaintiffs bring this claim on their own behalf and on behalf of each member of

the Class described above.

36.

Defendant is obligated by contract and common law to act in good faith and to

deal fairly with each insured and each provider.

37.

Defendant routinely and regularly breaches this duty by:

a. failing to perform the functions of a health care payor consistent with its

responsibilities to Plaintiffs;

b. failing to properly supervise its agents and employees including, but not



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Case 3:11-cv-30178-WGY Document 1 Filed 06/28/11 Page 6 of 8

limited to, its appeals processors and claims processors;

c. routinely demanding information already provided or available through

other sources as a prerequisite to reimbursing properly payable services;

and

d. making inaccurate calculations and determinations of Plaintiffs? eligibility

for reimbursement.

38.

As a result of Defendant?s failure to act in good faith and the absence of fair

dealing, Neuro-Psychology Associates has suffered damages and incurred fees and costs.

VIOLATION OF MASS. GEN. LAWS, CHAPTER 93A, SECTION 11

COUNT III

39.

40.

Plaintiffs repeat and re-allege every allegation above as if set forth herein in full.

Plaintiffs bring this claim on their own behalf and on behalf of each member of

the Class described above.

41.

GIGNA?s denial of properly payable reimbursements is an unfair and deceptive

act or practice under Mass. Gen. Laws, c. 93A, § 11.

42.

The named Plaintiff has pursued every administrative remedy and sent a Demand

for Relief to GIGNA and no payments have been made.

43.

As a result of CIGNA?s unfair and deceptive practices, Neuro-Psychology

Associates has suffered damages and incurred fees and costs.

PRAYER FOR RELIEF

WHEREFORE, The Plaintiffs respectfully request the following relief:

1.

Certify this case as a class action and appoint the named Plaintiff to be class

representative and his counsel to be class counsel;

2.

Enter a judgment declaring the acts and practices of Defendant complained of

herein to constitute a breach of contract and a breach of the covenant of good faith and fair

dealing, as well as a violation of Mass. Gen. Laws, c. 93A, § 11 warranting double or treble

damages, attorneys? fees, and costs.



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3.

Order specific performance of Defendant?s contractual obligations together with

other relief required by contract and law;

4.

Grant a permanent or final injunction enjoining Defendant?s agents and

employees, affiliates and subsidiaries, from continuing to harm Plaintiff and the members of the

Class;

5.

6.

Award actual and punitive damages to the Plaintiff and the Class;

Award Plaintiff the costs of this action, including the fees and costs of experts,

together with reasonable attorneys? fees; and

7.

Grant Plaintiff and the Class such other and further relief as this Court finds

necessary and proper.

JURY TRIAL DEMANDED

Plaintiffs demand a trial by jury on all issues so triable.








Respectfully submitted,
The Plaintiff,
MITCHELL CLIONSKY, d/b/a
NEURO-PSYCHOLOGY ASSOCIATES OF
WESTERN MASSACHUSETTS,

By Its Attorneys:
GOGEL & GOGEL


/s/ Kenneth J. Gogel
Kenneth J. Gogel, Esq., BBO #547968
2 Mattoon Street
Springfield, MA 01105
(413) 788-5683
(413) 737-3382 (Fax)

THE LAW OFFICE OF ANDY KRALIOS
Andy Kralios, Esq., BBO #674145
Two Mattoon Street
Springfield, Massachusetts 01105-1716
(413) 244-6931
[email protected]

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