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By Kevin Koeninger, COURTHOUSE NEWS SERVICE

May 1, 2019

https://www.courthousenews.com/specialty-status-of-hiv-medications-deba…

CINCINNATI (CN) – An attorney representing a class of HIV-positive patients insured by BlueCross BlueShield argued before a Sixth Circuit panel Wednesday that the insurer’s designation of their prescriptions as specialty medications violates federal disability laws.

The federal lawsuit was filed by an anonymous lead plaintiff, who says he was told by BlueCross BlueShield of Tennessee, or BCBST, in February 2017 that his HIV medications could not be picked up at his local pharmacy and would instead be mail-ordered.

The medications, including Genvoya, can also be picked up at specialty pharmacies, but John Doe argued getting to the nearest such pharmacy is a two-hour round trip. He alleged violations of both the Rehabilitation Act and the Americans with Disabilities Act.

U.S. District Judge Thomas L. Parker in Memphis granted BlueCross BlueShield’s motion to dismiss the complaint last July, calling the majority of the class allegations “conclusory and thus insufficient to state a claim.”

Parker cited the list of specialty medications included in the insurance program, and found numerous medications on the list are used to treat conditions that are not considered disabilities.

“Thus, BCBST plan enrollees who are not disabled yet take specialty medications subject to the program must endure the same procedural and logistical hurdles that HIV/AIDS patients face,” Parker wrote.

He continued, “This is fatal to plaintiff’s claims because plaintiff cannot allege that BCBST forces HIV/AIDS patients to obtain their medications under the program on the basis of their disability.”

The judge also disagreed with Doe’s argument regarding his disparate impact claims – specifically that the Affordable Care Act, or ACA, allows for the use of enforcement mechanisms found in any of the anti-discrimination statutes listed in its text.

Doe argued that because the Age Discrimination in Employment Act allowed for disparate impact claims, he could pursue them under the ACA, but Judge Parker disagreed.

“Here, the court … concludes that ‘if Congress intended for a single standard to apply to all [ACA] discrimination claims, repeating the references to the civil-rights statutes and expressly incorporating their distinct enforcement mechanisms would have been a pointless (and confusing) exercise,’” he wrote. (Parentheses in original.)

Attorney Jerry Flanagan of Consumer Watchdog argued before a Sixth Circuit panel Wednesday on behalf of Doe, and spent the majority of his time on his client’s disparate impact claim.

“At worst,” he said, “the language [in the ACA] is ambiguous.”

U.S. Circuit Judge Jeffery Sutton challenged Flanagan repeatedly, and told him the plain language of the 1975 Age Discrimination Act, which is used by the ACA, does not include disparate impact claims.

U.S. Circuit Judge John Nalbandian avoided the enforcement mechanism question, and instead asked the attorney how “meaningful access” to his client’s prescription has been denied.

Flanagan responded that requiring his client to mail-order his prescription violates an ACA regulation requiring insurers to give their insureds “access to all in-network pharmacies.”

Attorney Todd Kim with Reed Smith argued on behalf of BCBST, and immediately refuted his colleague’s claim regarding the regulation violation.

Kim told the panel the argument was forfeited because it was never raised before the district court, and went on to say that the regulation applies only to small-group plans, whereas Doe is part of a large-group plan.

The insurer’s attorney argued that the enforcement mechanism under the Rehabilitation Act is the only one available to the plaintiff, and that he has failed to meet the threshold to bring a claim.

Under the Rehabilitation Act, Kim said a claimant must show evidence of discrimination and denial of access based solely on his disability.

“He has full access to Genvoya,” the attorney said. “He has access … just like anyone else in the program.”

Senior U.S. Circuit Judge Ralph B. Guy Jr. rounded out the panel.

No timetable has been set for the court’s decision.