Nathaniel Glasser Quoted in “Mail-Order Drug Dispute Could Clarify Obamacare Bias Protections”

Bloomberg Law Business & Practice

Nathaniel M. Glasser, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Bloomberg Law Business & Practice, in “Mail-Order Drug Dispute Could Clarify Obamacare Bias Protections,” by Mary Anne Pazanowski.

Following is an excerpt:

The U.S. Supreme Court should review a decision that clears the way for people with disabilities to sue drug benefit plan administrators for bias based on how their plans operate, partly because it may limit discretion in how plans are structured, trade groups are saying.

Friend of the court briefs say the U.S. Court of Appeals for the Ninth Circuit got it wrong when it held that HIV/AIDS patients in California could bring a disparate impact claim under Section 504 of the Rehabilitation Act and, by extension, Section 1557 of the Affordable Care Act, against plan administrators based on provisions that require specialty drugs to be mailed to patients. …

If the top court chooses to answer the disparate impact question, the decision also will affect any Section 504 disability discrimination claim, including those outside the health-care context, said Nathaniel Glasser, a Washington-based member of Epstein Becker Green.

CVS’s petition for review also asked the court to decide if, assuming a disparate impact claim can be brought under Sections 504 and 1557, it can be used to challenge a benefit plan’s facially neutral terms and conditions, Glasser said.

The answer will affect a wide array of entities, as Section 1557 “exploded the range of potential defendants” under Section 504 to include virtually any public or private health-care program that receives federal funds, a category that includes hospitals, pharmacies, insurers, and pharmacy benefit managers, CVS said.

Circuit Split, Open Question

The Ninth Circuit’s decision conflicts with one from the U.S. Court of Appeals for the Sixth Circuit in Doe v. Blue Cross Blue Shield of Tenn., Inc. that involved similar circumstances, CVS said in its petition for review. The top court must resolve the split, it said.

Ending a circuit split is a traditional reason for granting review, but the split here is a pretty uneven one, Glasser said. The Second, Seventh, and Tenth circuits, like the Ninth, have recognized disparate impact claims under Section 504.

Even without a split, Supreme Court review is necessary, because the top court left open the very question at issue here in Alexander v. Choate, CVS said.