John Doe v. Bluecross Blueshield of Tenn., Inc., 2:17-cv-02793-TLP-cgc
| Decision Date | 30 July 2018 |
| Docket Number | No. 2:17-cv-02793-TLP-cgc,2:17-cv-02793-TLP-cgc |
| Parties | JOHN DOE, on behalf of himself and all others similarly situated, Plaintiff, v. BLUECROSS BLUESHIELD OF TENNESSEE, INC., Defendant. |
| Court | U.S. District Court — Western District of Tennessee |
JURY DEMAND
CLASS ACTION COMPLAINT
Defendant BlueCross BlueShield of Tennessee ("Defendant" or "BCBST") moves to dismiss Plaintiff John Doe's ("Plaintiff" or "Doe") First Amended Complaint ("Amended Complaint," ECF No. 38), which he brings as a class action under Federal Rule of Civil Procedure 23 on behalf of himself and all others similarly situated.1
The Amended Complaint asserts claims against Defendant for disability discrimination in violation of § 1557 of the Patient Protection and Affordable Care Act ("§ 1557" of the "ACA") (Count I), 42 U.S.C. § 18116, and Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181, et seq., as amended, ("Title III" of the "ADA") (Count II), breach of contract(Count III), and unjust enrichment (Count IV). Based on the following analysis, the Court GRANTS the Motion to Dismiss.
The Court derives the following well-pleaded facts from the Amended Complaint and accepts them as true for ruling on the Motion to Dismiss. Plaintiff is HIV-positive and is a retiree enrolled in a BCBST health plan through his former employer. (ECF No. 38 at PageID 323.) Until February 2017, Plaintiff obtained his HIV/AIDS medication, Genvoya ("HIV/AIDS medication," "medication," or "Genvoya") from his local community pharmacy in the Western District of Tennessee under his BCBST health plan (Id. at PageID 276, 323.) In March 2017, Plaintiff's local pharmacy rejected his medication refill and informed him that his BCBST plan classifies his HIV/AIDS medication as a "specialty medication" and requires him to obtain his medication by mail-order. (Id. at PageID 323.) Over the next six months, Plaintiff contacted BCBST many times to discuss his options, including opting out of BCBST's specialty medication program (the "Program"), which, requires him to obtain his medicine by mail-order or through a designated specialty brick-and-mortar pharmacy ("B&M specialty pharmacy") in its network. (Id. at PageID 324.)
Defendant defines "specialty medications" under the Program to "[i]nclude [ ] high-cost medication for chronic, serious, diseases such as hepatitis C, multiple sclerosis, arthritis, hemophilia and other conditions." (Id. at PageID 286.)
Plaintiff requested the ability to opt out of the mail-order component of Defendant's Program. BCBST's legal department told him that he could not do so. (Id. at PageID 324.) He appealed BCBST's decision to reject his formal request to opt out of the Program. In a letter, BCBST denied his appeal request, stating that Genvoya "is a specialty drug and specialty drugsare only covered if obtained through a pharmacy in your health plan's specialty pharmacy network, per the terms of your health benefits plan." (See ECF No. 38-1.) Plaintiff claims that this letter did not disclose that he could obtain his HIV/AIDS medication from a B&M specialty pharmacy. (ECF No. 38 at PageID 325.)
Plaintiff learned through his investigation of the B&M specialty pharmacies participating in Defendant's health plans that almost all of these pharmacies do not allow in-person pick-up, and, if they do, they are located great distances from Plaintiff's and other potential class members' residences. Even worse, the staff members at these B&M specialty pharmacies (or the BCBST employees who operate its customer service lines) are unfamiliar with Plaintiff's or class members' medical histories. And sometimes these B&M specialty pharmacies provide only a portion of the patient's medications, requiring patients to go to several locations to fill their prescriptions. (Id.)
Plaintiff asserts the number of these B&M specialty pharmacies is decreasing. Thus, Plaintiff alleges that the Program's requirements that he obtain specialty medications by mail or from a steadily decreasing number of B&M specialty pharmacies has an adverse, disproportionate effect on Plaintiff and other HIV/AIDS patients, compared to enrollees who have no disability or even to disabled enrollees prescribed non-HIV/AIDS specialty medications.
Plaintiff also focuses on the social stigma and discrimination associated with having HIV/AIDS and the potentially serious effect of missing a dose of HIV/AIDS medication. For example, the potential is high for heat damage to HIV/AIDS medications. Besides, says Plaintiff, HIV/AIDS patients have a heightened need for access to in-person consultations with community pharmacists who can notice potentially life-threatening side effects. (See ECF No. 38 at PageID 277-86.) Also, BCBST enrollees who have prescriptions for medications thatBCBST does not consider "specialty medications," including such HIV/AIDS patients who take medications for other health issues, may continue to obtain their prescriptions at a community pharmacy under their health plans without a penalty. Taking these allegations as true, according to Plaintiff, shows that BCBST's real motivation for the Program is profit and that it unlawfully discriminates against Plaintiff and potential class members. (Id. at PageID 275.)
As a result of BCBST's allegedly discriminatory behavior, HIV/AIDS patients like Plaintiff face this choice—either: (1) forego essential counseling from a community pharmacist and face privacy risks by obtaining their prescriptions through mail-order or B&M specialty pharmacies; or (2) they can pay thousands of dollars out-of-pocket to obtain their HIV/AIDS medications at a community pharmacy. (Id. at PageID 267-68.) Here, the BCBST Program requires Plaintiff to drive over two hours round trip to obtain his HIV/AIDS medication from an in-person pharmacist, causing him considerable stress and inconvenience. (Id. at PageID 276-77.)
Plaintiff filed the original class action Complaint. (ECF No. 1.) Defendant responded to the Complaint by moving to dismiss (ECF No. 33), and Plaintiff then filed the Amended Complaint. Defendant responded by moving again for dismissal. (ECF No. 39.)
To address a motion to dismiss, the Court's analysis starts with the Federal Rules of Civil Procedure. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claims showing that the pleader is entitled to relief." That said, under Rule 12(b)(6), a court can dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausibleon its face.'" Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Engler v. Arnold, 862 F.3d 571, 575 (6th Cir. 2017). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 662 (citation omitted). Yet the Court need not credit "mere conclusory statements" or "threadbare recitals of the elements of a cause of action." Id. at 678 (citing Twombly, 550 U.S. at 555).
Though a court will grant a motion to dismiss if a plaintiff has no plausible claim for relief, a court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." DirecTV v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). So "[a] complaint should only be dismissed if it is clear to the court that 'no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Herhold v. Green Tree Serv., LLC, 608 F. App'x 328, 331 (6th Cir. 2015) (quoting Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003)). And "[d]ismissal of the action is proper if there is an absence of law to support the type of claim made, if the facts alleged are insufficient to state a valid claim, or if, on the face of the complaint, there is an insurmountable bar to relief." Doe v. Ohio, No. 2:91-CV-464, 2012 WL 12985973, at *5 (S.D. Ohio Feb. 16, 2012) (citations omitted).
Plaintiff claims that the Program's disproportionate effect on him and other BCBST enrollees who suffer from HIV/AIDS violates § 1557 of the ACA. By contrast, Defendant argues that Plaintiff fails to state a viable claim under § 1557 of the ACA as enforced by Section 504 the Rehabilitation Act of 1973 ("Rehab Act"), 29 U.S.C. § 701, et seq. Section 1557 is theACA's antidiscrimination statute, which prohibits discrimination by any health plan on the basis of race, gender, age, or disability. This section uses the enforcement mechanisms under Title VI, Title IX, the ADEA, or Section 504 of the Rehab Act. The Rehab Act prohibits discrimination against an "otherwise qualified individual with a disability . . . solely by reason of her or his disability." 29 U.S.C. § 794(a). So Defendant argues that Plaintiff's ACA disability discrimination claim arises exclusively under the Rehab Act's enforcement framework. Under that framework, Defendant argues that Plaintiff fails to state a disparate treatment claim—a claim that Defendant intentionally discriminated against him because of his disability. And Defendant argues that disparate impact claims (allegedly neutral practices that have a disproportionate impact on particular persons) are not cognizable under the Rehab Act.
On the other hand, Plaintiff argues that Defendant's interpretation of § 1557 is impermissibly narrow and ignores comments from the Department of Health and Human Services Office for Civil Rights ("OCR") on regulations implementing § 1557. In essence, Plainti...
To continue reading
Request your trial