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Doe v. BlueCross BlueShield of Tennessee, Inc.

United States Court of Appeals, Sixth Circuit

June 4, 2019

John Doe, Plaintiff-Appellant,
v.
BlueCross BlueShield of Tennessee, Inc., Defendant-Appellee.

          Argued: May 1, 2019

          Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:17-cv-02793-Thomas L. Parker, District Judge.

         COUNSEL

         ARGUED:

          Jerry Flanagan, CONSUMER WATCHDOG, Los Angeles, California, for Appellant.

          Todd Kim, REED SMITH LLP, Washington, D.C., for Appellee.

         ON BRIEF:

          Jerry Flanagan, CONSUMER WATCHDOG, Los Angeles, California, Edith M. Kallas, WHATLEY KALLAS, LLP, New York, New York, Alan M. Mansfield, WHATLEY KALLAS, LLP, San Diego, California, Jerry Martin, Seth M. Hyatt, BARRETT JOHNSTON MARTIN & GARRISON, LLC, Nashville, Tennessee, for Appellant.

          Todd Kim, REED SMITH LLP, Washington, D.C., Bryan M. Webster, Abraham Judson Souza, REED SMITH LLP, Chicago, Illinois, for Appellee.

          Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.

          OPINION

          SUTTON, CIRCUIT JUDGE.

         Treating similarly situated people differently goes to the heart of invidious discrimination. But treating differently situated people differently usually counts as equal justice under law. Today's case involves the second scenario in the context of an application of the antidiscrimination provisions of the Affordable Care Act.

         John Doe receives HIV medicine through a health care plan administered by BlueCross BlueShield of Tennessee. Although Doe would like to pick up his medicine at his local pharmacy, his plan requires him, and anyone else who uses certain high-cost drugs, to get his medicine by mail or at a specialty pharmacy. Frustrated by that requirement, Doe sued BlueCross for discriminating against him on the basis of disability and for breaching their contract. The district court rejected the claims as a matter of law. We affirm.

         I.

         John Doe is HIV-positive and takes Genvoya to keep his condition under control. While advances in HIV/AIDS research continue to improve treatment for the disease, the most effective medicines can be expensive. Doe receives health insurance from BlueCross. Happily for him, the plan covers Genvoya.

         Unhappily for him, BlueCross imposes requirements on where individuals obtain the medication. Doe originally bought Genvoya from his local pharmacy. But after February 2017, the pharmacy told him that BlueCross wouldn't pay for the medication there any longer. BlueCross requires beneficiaries to obtain specialty medicines-usually high-cost medicines for chronic and serious diseases-from a specialty pharmacy network if they want to pay in-network (read lower) prices. That meant Doe could fill the HIV prescription only through mail order or by picking it up at certain brick-and-mortar pharmacies. So long as Doe used the specialty pharmacy network, his co-pay for each monthly batch of Genvoya ...


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