United States v. 2020-12-09 | 19-15074 | JOHN DOE V. CVS PHARMACY, INC. | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN DOE, One; JOHN DOE, Two;
JOHN DOE, Three; JOHN DOE, Four;
on behalf of themselves and all
others similarly situated; J
OHN DOE,
Five,
Plaintiffs-Appellants,

v.

CVS
PHARMACY, INC.; CAREMARK,
LLC; CAREMARK CALIFORNIA
SPECIALTY PHARMACY, LLC;
NATIONAL RAILROAD PASSENGER
CORPORATION, DBA Amtrak;
LOWE’S COMPANIES, INC.; TIME
WARNER, INC.,
Defendants-Appellees,

and

C
AREMARK RX, LLC; CVS HEALTH
CORPORATION,
Defendants.
No. 19-15074

D.C. No.
3:18-cv-01031-
EMC

OPINION

Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding

2 DOE V. CVS PHARMACY

Argued and Submission Deferred June 12, 2020
Submitted December 1, 2020
San Francisco, California

Filed December 9, 2020

Before: MILAN D. SMITH, JR. and ANDREW D.
HURWITZ, Circuit Judges, and TIMOTHY M.
BURGESS,
*
District Judge.

Opinion by Judge Milan D. Smith, Jr.

SUMMARY
**

Affordable Care Act

The panel affirmed in part and vacated in part the district
court’s order dismissing an action brought under the
Affordable Care Act and other statutes by individuals living
with HIV/AIDS whose pharmacy benefits manager for their
employer-sponsored health plans required them to obtain
specialty medications through its designated specialty
pharmacy for those benefits to be considered “in-network.”

The panel held that Section 1557 of the ACA
incorporates the anti-discrimination provisions of various
civil rights statutes, and prohibits discrimination on the basis

*
The Honorable Timothy M. Burgess, Chief United States District
Judge for the District of Alaska, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

DOE V. CVS PHARMACY 3

of race, color, or national origin pursuant to Title VI of the
Civil Rights Act of 1964, on the basis of sex pursuant to
Title IX of the Education Amendments Act of 1972, on the
basis of age pursuant to the Americans with Disabilities Act,
and on the basis of disability pursuant to Section 504 of the
Rehabilitation Act. Agreeing with the Sixth Circuit, the
panel held that Section 1557 did not create a healthcare-
specific anti-discrimination standard that would permit a
discrimination claim under any of the enforcement
mechanisms of the ACA regardless of plaintiffs’
protected class. Accordingly, because plaintiffs claimed
discrimination on the basis of their disability, to state a claim
for a Section 1557 violation, they were required to allege
facts adequate to state a claim under Section 504 of the
Rehabilitation Act.

Vacating in part and remanding for further proceedings,
the panel held that plaintiffs stated a claim for disability
discrimination under the ACA. Applying the Section 504
framework, the panel concluded that plaintiffs adequately
alleged that they were denied meaningful access to their
prescription drug benefit under their employer-sponsored
health plans because defendants’ program prevented them
from receiving effective treatment for HIV/AIDS.

The panel affirmed the district court’s dismissal of
plaintiffs’ claim of disability discrimination pursuant to the
Americans with Disabilities Act on the ground that a benefit
plan is not a place of “public accommodation.” The panel
also affirmed the district court’s denial of plaintiffs’ claim
for benefits pursuant to ERISA and their cause of action
under California’s Unfair Competition Law, except to the
extent it was predicated on a violation of the ACA.

4 DOE V. CVS PHARMACY

COUNSEL

Jerry Flanagan (argued), Benjamin Powell, and Daniel L.
Sternberg, Consumer Watchdog, Los Angeles, California;
Alan M. Mansfield, Whatley Kallas LLP, San Diego,
California; Henry C. Quillen, Whatley Kallas LLP,
Portsmouth, New Hampshire; Edith M. Kallas, Whatley
Kallas LLP, New York, New York; for Plaintiffs-
Appellants.

Craig D. Singer (argued), Enu Mainigi, Grant A. Geyerman,
and Sarah Lochner O’Connor, Williams & Connolly LLP,
Washington, D.C.; Tami S. Smason, Foley & Lardner LLP,
Los Angeles, California; for Defendants-Appellees CVS
Pharmacy, Inc.; Caremark, LLC; and Caremark California
Specialty Pharmacy, LLC.

Phillip J. Eskenazi (argued), Kirk A. Hornbeck, and
Christopher M. Butler, Hunton Andrews Kurth LLP, Los
Angeles, California, for Defendant-Appellee Lowe’s
Companies, Inc.

Michael Bernstein, Robinson & Cole LLP, New York, New
York; Jean E. Tomasco, Robinson & Cole LLP, Hartford,
Connecticut; for Defendant-Appellee Time Warner, Inc.

Brian W. Shaffer, Morgan Lewis Bockius LLP,
Philadelphia, Pennsylvania; Elise M. Attridge and Seane
McMahan, Morgan Lewis Bockius LLP, Washington, D.C.;
for Defendant-Appellee National Railroad Passenger
Corporation.

Jeffrey Blend, Tom Myers, and Arti Bhimani, AIDS
Healthcare Foundation, Los Angeles, California, as and for
Amicus Curiae.

DOE V. CVS PHARMACY 5

Carly A. Myers, Silvia Yee, and Arlene B. Mayerson,
Disability Rights Education & Defense Fund, Berkeley,
California, for Amici Curiae Disability Rights Education
and Defense Fund, Disability Rights Advocates, Disability
Rights California, Disability Rights Legal Center, National
Health Law Program, and American Civil Liberties Union.

OPINION
M. SMITH, Circuit Judge:
Does I–V (Does) are individuals living with HIV/AIDS
who have employer-sponsored health plans, and who rely on
those plans to obtain prescription drugs. Until recently,
Does could fill their prescriptions at community pharmacies,
where they were able to consult knowledgeable pharmacists
who were familiar with their personal medical histories and
could make adjustments to their drug regimens to avoid
dangerous drug interactions or remedy potential side effects.
Does allege these services, among others, are critical to
HIV/AIDS patients, who must maintain a consistent
medication regimen to manage their chronic disease.
Now, Does’ pharmacy benefits manager, CVS
Caremark, requires all health plan enrollees to obtain
specialty medications, including HIV/AIDS drugs, through
its designated specialty pharmacy for those benefits to be
considered “in-network.” The in-network specialty
pharmacy dispenses specialty drugs only by mail or drop
shipments to CVS pharmacy stores for pickup. Does allege
this program violates the anti-discrimination provisions of
the Affordable Care Act (ACA), the Americans with
Disabilities Act (ADA), and the California Unruh Civil
Rights Act (Unruh Act); denies them benefits to which they

6 DOE V. CVS PHARMACY

are entitled under the Employee Retirement Security Act
(ERISA); and violates California’s Unfair Competition Law
(UCL). The district court granted Defendants’ motion to
dismiss. We affirm in part, vacate in part, and remand for
further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff-Appellants Does are individuals living with
HIV/AIDS who rely on employer-sponsored health plans for
their medications. Defendant-Appellees CVS Pharmacy,
Inc., a retail pharmacy company, CVS Caremark, LLC, a
pharmacy benefits manager, and Caremark California
Specialty Pharmacy LLC, a specialty pharmacy (together,
CVS), are affiliates of non-party CVS Health Corporation.
Defendant-Appellees Lowe’s Companies, Inc., Time
Warner, Inc., and National Passenger Co. (d/b/a Amtrak)
(together, Employer Defendants) provide prescription
benefits to Does through employer-based health plans.
Does allege that their prescription benefit plans allow
them to obtain specialty medications, such as their
HIV/AIDs prescriptions, at “in-network” prices only
through Caremark California Specialty Pharmacy (CSP),
which delivers medications to clients by mail or to a CVS
pharmacy for pickup (the Program). If Does do not obtain
their HIV/AIDS medications through CSP, those
medications are not considered “in-network” benefits
covered by the health plans, which results in higher prices
amounting to thousands more dollars per month. Before
CVS enrolled Does in the Program, Does could obtain
HIV/AIDS medications from any in-network pharmacy,
including from non-CVS pharmacies (Network
Pharmacies), and receive their full insurance benefits.

DOE V. CVS PHARMACY 7

Does allege that enrollment in the Program forces them
to forego essential counseling and consultation from
specialty pharmacists, who are
best positioned to: (i) detect potentially life-
threatening adverse drug interactions and
dangerous side effects, some of which may
only be detected visually; (ii) immediately
provide new drug regimens as their disease
progresses; and (iii) provide essential advice
and counseling that help HIV/AIDS patients
and families navigate the challenges of living
with a chronic and sometimes debilitating
condition.
The Program also forces those who are prescribed non-
specialty medications to fill certain prescriptions at
community pharmacies and other specialty drugs through
the Program. Does allege “[t]his ‘separate and unequal’
splitting of prescription providers also makes it difficult, if
not impossible, for CVS Caremark to track potentially life-
threatening drug interactions.”
According to Does, filling their prescriptions through the
Program causes them substantial difficulties and puts their
privacy at risk. They allege they must be present at the time
of delivery to avoid missing deliveries, having medications
stolen, or having medications damaged by being left out in
the elements. They also report making multiple trips to CVS
pharmacies—sometimes at great distances from their
homes—to correct prescriptions that were filled incorrectly,
and risking their privacy when CVS pharmacy staff shout
their names and medications in front of other customers.
Deliveries to the home or the workplace risk notifying
neighbors or coworkers that Does have HIV/AIDS.

8 DOE V. CVS PHARMACY

Several Does have requested to opt out of the Program.
Those requests were denied.
Does allege the “Program constitutes a material and
discriminatory change in Class Members’ coverage, a
significant reduction in or elimination of prescription drug
benefits, and a violation of the standards of good health care
and clinically appropriate care for HIV/AIDS patients.”
Does assert the following claims against CVS and the
Employer Defendants: (1) violation of the anti-
discrimination provisions of the ACA, 42 U.S.C. § 18116;
(2) violations of the ADA, 42 U.S.C. § 12182; (3) state law
violations of the UCL and the Unruh Act; and (4) claims
under ERISA for benefits due under the plan, 29 U.S.C.
§ 1132(a)(1)(B), breach of fiduciary duty, 29 U.S.C.
§ 1132(a)(3), and failure to provide full and fair review,
29 U.S.C. § 1132(a)(3).
Following briefing and oral argument, the district court
dismissed Does’ complaint with prejudice. This appeal
followed.
STANDARDS OF REVIEW
“We review de novo a district court’s dismissal under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.”
Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir.
2019). In doing so, “[w]e accept all factual allegations in the
complaint as true and construe the pleadings in the light most
favorable to the nonmoving party.” Id. (internal quotation
marks omitted). “We also review de novo a district court’s
interpretation and construction of a federal statute.” Holmes
v. Merck & Co., 697 F.3d 1080, 1082 (9th Cir. 2012).

DOE V. CVS PHARMACY 9

ANALYSIS
A
Section 1557 of the ACA incorporates the anti-
discrimination provisions of various civil rights statutes, and
prohibits discrimination on the basis of race, color, or
national origin pursuant to Title VI of the Civil Rights Act
of 1964 (42 U.S.C. § 2000d et seq.), on the basis of sex
pursuant to Title IX of the Education Amendments of 1972
(20 U.S.C. § 1681 et seq.), on the basis of age pursuant to
the ADA (42 U.S.C. § 6101 et seq.), and on the basis of
disability pursuant to Section 504 of the Rehabilitation Act
(29 U.S.C. § 794). 42 U.S.C. § 18116. Does argue that
Section 1557 creates a new healthcare-specific anti-
discrimination standard that permits a discrimination claim
under any of the enforcement mechanisms of the statute
regardless of Does’ protected class status. Accordingly,
Does maintain that they state a Section 1557 claim for
disability discrimination on a disparate impact theory,
regardless of whether Section 504 of the Rehabilitation Act
would permit a disparate impact claim. In Schmitt v. Kaiser
Foundation Health Plan of Washington, we left open the
question of whether the ACA created a healthcare-specific
anti-discrimination standard that allowed plaintiffs to choose
standards from a menu provided by other anti-discrimination
statutes. 965 F.3d 945, 954 (9th Cir. 2020). We answer now
in the negative.
The Sixth Circuit rejected an identical argument in Doe
v. BlueCross BlueShield of Tennessee, Inc., 926 F.3d 235
(6th Cir. 2019). The court concluded that the statutory text
of Section 1557—which prohibits discrimination “on the
ground prohibited under” Title VI, Title IX, the Age
Discrimination Act, or the Rehabilitation Act—did not lend
itself to an interpretation that would permit a plaintiff to

10 DOE V. CVS PHARMACY

“pick the statute with the lightest standard from this menu of
four options and use that standard of liability in prosecuting
his claim for disability discrimination.” Id. at 238. Rather,
the court interpreted the word “ground” to refer to
the forbidden source of discrimination: race,
color, and national origin (Title VI); sex
(Title IX); age (Age Discrimination Act); and
disability (Rehabilitation Act). When
“ground” is paired with “prohibited,” as in
“on the ground prohibited,” the statute picks
up the type of discrimination—the standard
for determining discrimination—prohibited
under each of the four incorporated statutes.
If the claimant seeks relief for discrimination
“on the ground prohibited” by § 504 of the
Rehabilitation Act, for example, he must
show differential treatment “solely by reason
of” disability, 29 U.S.C. § 794(a), not some
other standard of care.
Id. The court reasoned that, while the ACA prohibits
discrimination based on several different grounds, “[b]y
referring to four statutes, Congress incorporated the legal
standards that define discrimination under each one.” Id.
at 239.
The second sentence of Section 1557 supports that
interpretation. It states that “[t]he enforcement mechanisms
provided for and available under such title VI, title IX,
[S]ection 504, or such Age Discrimination Act shall apply
for purposes of violations of this subsection.” 42 U.S.C.
§ 18116(a). The Sixth Circuit interpreted the phrase
“enforcement mechanism” to “cover[] the distinct methods
available under the four listed statutes for compelling

DOE V. CVS PHARMACY 11

compliance with the substantive requirements of each
statute,” noting that “[i]f the first sentence created a brand-
new single standard for what qualifies as discrimination,
why would Congress use four distinct families of
enforcement mechanisms to compel compliance with that
standard rather than creating a matching single mechanism?”
BlueCross BlueShield, 926 F.3d at 239. The Sixth Circuit
thus concluded that Section 1557 “prohibits discrimination
against the disabled in the provision of federally supported
health programs under § 504 of the Rehabilitation Act. In
doing so, the ACA picks up the standard of care for showing
a violation of § 504, not the other laws incorporated by the
statute.” Id.
We find BlueCross BlueShield persuasive and hold that
Section 1557 does not create a new healthcare-specific anti-
discrimination standard. Because Does claim discrimination
on the basis of their disability, to state a claim for a Section
1557 violation, they must allege facts adequate to state a
claim under Section 504 of the Rehabilitation Act.
B
Section 504 of the Rehabilitation Act provides, “No
otherwise qualified individual with a disability . . . shall,
solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving
Federal financial assistance[.]” 29 U.S.C. § 794.
In Alexander v. Choate, 469 U.S. 287 (1985), the
Supreme Court concluded that not all disparate-impact
showings qualify as prima-facie cases under Section 504. Id.
at 299. Choate involved a challenge by Medicaid recipients
to a proposed reduction in the number of inpatient hospital
days covered by Tennessee’s Medicaid program from 20 to

12 DOE V. CVS PHARMACY

14. Id. at 289. The plaintiffs argued the reduction would
disproportionately affect people with disabilities, who
typically required more in-patient care, and thus
discriminated against people with disabilities in violation of
Section 504. Id. at 290. Rather than try to classify particular
instances of discrimination as intentional or disparate-
impact, the Court focused on whether disabled persons had
been denied “meaningful access” to state-provided services.
Id. at 302. In discussing whether disabled individuals had
meaningful access to plan benefits under the 14-day in-
patient limitation, the Court did not limit its consideration to
whether the policy applied on the same terms to people with
disabilities as it did to those without. It also considered
whether the in-patient limitation would have the effect of
systematically excluding people with disabilities. Id. After
considering Section 504’s regulations, the federal Medicaid
Act, and HHS guidelines, the Court ultimately concluded
that “[b]ecause the handicapped have meaningful and equal
access to that benefit, Tennessee is not obligated to . . .
provide the handicapped with more than 14 days of inpatient
coverage.” Id. at 306. We assess Section 504 claims under
the standard articulated in Choate. Mark H. v. Lemahieu,
513 F.3d 922, 937 (9th Cir. 2008).
1.
Under the test outlined in Choate, we first consider the
nature of the benefit Does were allegedly denied. The
district court defined the benefit as an entitlement “to obtain
HIV/AIDS medication for favorable prices at non-CVS
pharmacies,” but Does argue the denied benefit is
meaningful access to “the prescription drug benefit as a
whole[.]” Construing the allegations in the light most
favorable to Does, we agree with Does’ articulation of the
benefit. The crux of Does’ complaint is that the Program

DOE V. CVS PHARMACY 13

discriminates against them by eliminating various aspects of
pharmaceutical care that they deem critical to their health.
Moreover, looking to the benefit’s statutory source, as the
Supreme Court did in Choate, 469 U.S. at 303, the ACA
requires that health plans cover prescription drugs as an
“essential health benefit.” 42 U.S.C. § 18022(b)(1)(F). The
district court’s definition unduly narrowed the benefit to
obtaining specialty drugs at favorable prices from certain
pharmacies, when Does’ characterization of the benefit
tracks the ACA, asserting more than just cost-related
differences.
2.
Second, we analyze whether the plan provided
meaningful access to the benefit. The district court
erroneously evaluated the benefits under the ACA at issue
here against the guarantees, or lack thereof, of the Medicaid
Act.
In Choate, the Supreme Court relied on the Medicaid Act
to determine the scope of the concerned Medicaid benefit,
observing that “[t]he Act gives the States substantial
discretion to choose the proper mix of amount, scope, and
duration limitations on coverage, as long as care and services
are provided in ‘the best interests of the recipients.’” Id.
at 303 (quoting 42 U.S.C. § 1396a(a)(19)). The Court
concluded that disabled Medicaid recipients had not been
denied meaningful access to a benefit to which they were
entitled, id. at 306, because the Medicaid Act did not
guarantee Medicaid recipients “adequate health care,” or the
“level of health care precisely tailored to his or her particular
needs,” id at 303.
Consistent with Choate, the district court in this case
should have looked to the ACA to determine whether Does

14 DOE V. CVS PHARMACY

adequately alleged they were denied meaningful access to an
ACA-provided benefit. Indeed, Does have adequately
alleged that they were denied meaningful access to their
prescription drug benefit, including medically appropriate
dispensing of their medications and access to necessary
counseling. Due to the structure of the Program as it relates
to HIV/AIDS drugs, Does claim, they cannot receive
effective treatment under the Program because of their
disability.
Courts also look to the regulations promulgated pursuant
to the statute at issue to inform the meaningful access
inquiry. See Choate, 469 U.S. at 304–06; K.M. ex rel. Bright
v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir.
2013). The ACA regulations require that “any restriction on
a benefit or benefits must apply uniformly to all similarly
situated individuals,” and must “not be directed at individual
participants or beneficiaries based on [disability].”
45 C.F.R. § 146.121(b)(1)(i)(B). Moreover, the regulations
state, “An issuer does not provide [essential health benefits]
if its benefit design, or the implementation of its benefits
design, discriminates based on an individual’s . . .
disability[.]” Id. § 156.125(a) (emphasis added). Does
allege the structure and implementation of the Program
discriminates against them on the basis of their disability by
preventing HIV/AIDS patients from obtaining the same
quality of pharmaceutical care that non-HIV/AIDS patients
may obtain in filling non-specialty prescriptions, thereby
denying them meaningful access to their prescription drug
benefit. Those allegations are sufficient to state an ACA
disability discrimination claim.
The fact that the benefit is facially neutral does not
dispose of a disparate impact claim based on lack of
meaningful access. Following Choate, we recognized that

DOE V. CVS PHARMACY 15

the unique impact of a facially-neutral policy on people with
disabilities may give rise to a disparate impact claim where
state “services, programs, and activities remain open and
easily accessible to others.” Crowder v. Kitagawa, 81 F.3d
1480, 1484 (9th Cir. 1996); see also K .M., 725 F.3d at 1102
(“We have relied on Choate’s construction of Section 504 in
ADA Title II cases, and have held that to challenge a facially
neutral government policy on the ground that it has a
disparate impact on people with disabilities, the policy must
have the effect of denying meaningful access to public
services.”). Here, Does have alleged that even though the
Program applies to specialty medications that may not be
used to treat conditions associated with disabilities, the
Program burdens HIV/AIDS patients differently because of
their unique pharmaceutical needs. Specifically, they claim
that changes in medication to treat the continual mutation of
the virus requires pharmacists to review all of an HIV/AIDS
patient’s medications for side effects and adverse drug
interactions, a benefit they no longer receive under the
Program. Thus, the fact that the Program may apply to plan
enrollees in a facially neutral way does not necessarily defeat
a § 504 claim.
Finally, the district court erred by requiring that Does
plead allegations showing the Program impacts people with
HIV/AIDS in a unique or severe manner. The meaningful
access standard in Choate does not require Does to allege
that their deprivation was unique to those living with
HIV/AIDS, nor that the deprivation was severe—only that
they were not provided meaningful access to the benefit.
Construing the allegations in the light most favorable to
Does, Does stated a claim for disability discrimination under
the ACA. Applying the § 504 framework, Does adequately
alleged that they were denied meaningful access to their

16 DOE V. CVS PHARMACY

prescription drug benefit under their employer-sponsored
health plans because the Program prevents them from
receiving effective treatment for HIV/AIDS.
1
Accordingly,
we vacate the district court’s dismissal of Does’ ACA claim
and remand for further proceedings.
2

C
Does also challenge the district court’s dismissal of their
claim of disability discrimination pursuant to the ADA. To
succeed on this claim, a “plaintiff must show that (1) she is
disabled within the meaning of the ADA; (2) the defendant
is a private entity that owns, leases, or operates a place of
public accommodation; and (3) the plaintiff was denied
public accommodations by the defendant because of her
disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730
(9th Cir. 2007). Does fail to plead the denial of a public
accommodation because a benefit plan is not a place of
“public accommodation.” See Weyer v. Twentieth Century
Fox Film Corp., 198 F.3d 1104, 1115 (9th Cir. 2000). Weyer
distinguished between the ADA’s requirement of equal
access—that a place of public accommodation like “a
bookstore cannot discriminate against disabled people in
granting access”—and content—that the same bookstore

1
Does also try to fashion a failure-to -accommodate claim pursuant
to Section 504 of the Rehabilitation Act and the Unruh Act by piecing
together allegations from their complaint and statements from the district
court’s order. Because this theory was raised for the first time on appeal,
we do not address it. See Dream Palace v. City of Maricopa, 384 F.3d
990, 1005 (9th Cir. 2004).
2
CVS argues this court should also affirm the district court’s
dismissal of the ACA claim because Does did not adequately allege
CVS’s receipt of “federal financial assistance.” The district court should
address this issue on remand in the first instance.

DOE V. CVS PHARMACY 17

“need not assure that the books are available in Braille as
well as print.” Id. Thus, “an insurance office must be
physically accessible to the disabled but need not provide
insurance that treats the disabled equally with the non-
disabled.” Id. (quoting Ford v. Schering-Plough Corp.,
145 F.3d 601, 613 (3d Cir. 1998)).
We affirmed Weyer in Chabner v. United of Omaha Life
Insurance Co., 225 F.3d 1042, 1047 (9th Cir. 2000), holding
that the ADA did not apply to the terms of a non-standard
life insurance premium based on an increased mortality rate.
Id. at 1045–47. We upheld the “content” versus “access”
distinction, reasoning that the insurance company
administering the plan was not a place of public
accommodation because “the employees received their
benefits through employment, and not through a public
accommodation.” Id. at 1047. The Sixth Circuit’s decision
in BlueCross BlueShield concluded the same: “Doe targets
BlueCross’s operation of his health care plan, not its control
over his pharmacy. And Doe’s health plan simply does not
qualify as a public accommodation.”
3
BlueCross
BlueShield, 926 F.3d at 244.

3
The Third, Fifth, and Sixth Circuits are in accord. See Ford v.
Schering-Plough Corp., 145 F.3d at 613 (3d Cir. 1998); McNeil v. Time
Ins. Co., 205 F.3d 179, 188 (5th Cir. 2000) (“[W]e read Title III to
prohibit an owner, etc., of a place of public accommodation from
denying the disabled access to the good or service and from interfering
with the disableds’ full and equal enjoyment of the goods and services
offered. But the owner, etc., need not modify or alter the goods and
services that it offers in order to avoid violating Title III.”); Parker v.
Metro. Life Ins. Co., 121 F.3d 1006, 1012 (6th Cir. 1997) (“Title III does
not govern the content of a long-term disability policy offered by an
employer. The applicable regulations clearly set forth that Title III
regulates the availability of the goods and services the place of public

18 DOE V. CVS PHARMACY

The same is true here. Does are subject to the Program
pursuant to the terms of their employer-provided health
plans. Those plans require them to pay higher prices for
specialty drugs at Network Pharmacies if Does choose to fill
their prescriptions there, but those plans do not themselves
deny Does access to those locations.
Because Does have not plausibly alleged that their
benefit plan is a place of public accommodation, they cannot
maintain a claim of discrimination under the ADA. We
therefore need not address the question of whether Does
were denied access to their health plan on the basis of their
disability within the meaning of the ADA. We affirm the
district court’s dismissal of Does’ ADA claim.
D
Does next argue that the district court erred by
dismissing their claim for benefits pursuant to ERISA.
ERISA provides a right of action for plan participants or
beneficiaries “to recover benefits due . . . under the terms of
[a] plan, to enforce [ ] rights under the terms of the plan, or
to clarify [ ] rights to future benefits under the terms of the
plan.” 29 U.S.C. § 1132(a)(1)(B). To plead a violation of
the statute, a plaintiff must allege “the existence of an
ERISA plan,” and identify “the provisions of the plan that
entitle [them] to benefits.” Almont Ambulatory Surgery Ctr.,
LLC v. UnitedHealth Grp., Inc., 99 F. Supp. 3d 1110, 1155
(C.D. Cal. 2015). The district court dismissed this claim
because Does failed to identify a specific term in their health

accommodation offers as opposed to the contents of goods and services
offered by the public accommodation.”).

DOE V. CVS PHARMACY 19

care plan that conferred the benefits they claim they were
denied.
Does do not challenge this holding on appeal, or
otherwise offer specific plan terms that undermine that
holding. While Does continue to argue that the Program
denies them the benefit under their health plan to obtain
medications at any in-network community pharmacies, they
have not identified any provision in their plans conferring
such a benefit.
Rather, Does argue for the first time on appeal that their
Plans were not “validly amended” to implement the
Program, and that the Program’s corresponding changes to
the procedures by which Does must obtain their HIV/AIDS
drugs “caused a reduction in or elimination of benefits
without a change in actual coverage.” Because Does raise
this argument for the first time on appeal, it is waived,
Clemens v. CenturyLink Inc., 874 F.3d 1113, 1117 (9th Cir.
2017), and we affirm the district court’s dismissal of this
claim.
E
Finally, Does argue that the district court erred by
dismissing their claim pursuant to the UCL. The UCL
prohibits “unlawful, unfair or fraudulent business act[s] or
practices[s].” Cal. Bus. & Prof. Code § 17200. “Each of
these three adjectives captures a ‘separate and distinct theory
of liability.’” Rubio v. Capital One Bank, 613 F.3d 1195,
1203 (9th Cir. 2010) (quoting Kearns v. Ford Motor Co.,
567 F.3d 1120, 1127 (9th Cir. 2009)). Does argue the
district court erred by dismissing their UCL claim premised
on the “unlawful” and “unfair” prongs. We address each
prong in turn.

20 DOE V. CVS PHARMACY

1.
A § 17200 action “to redress an unlawful business
practice ‘borrows’ violations of other laws and treats [them]
. . . as unlawful practices independently actionable.”
Farmers Ins. Exch. v. Superior Court, 826 P.2d 730, 734
(Cal. 1992). Does allege CVS violated the UCL by violating
the ACA, ADA, Unruh Act, and 45 C.F.R. § 156.122(e).
The district court concluded the UCL claim failed to the
extent the predicate ACA, ADA, and Unruh Act claims
failed. Because we hold that Does stated a claim under the
ACA, we vacate the district court’s holding on the UCL
claim as to the ACA predicate.
Does also argue the court erred in dismissing the UCL
claim premised on a violation of 45 C.F.R. § 156.122(e).
That regulation requires health plans providing essential
benefits to “allow enrollees to access prescription drug
benefits at in-network retail pharmacies, unless . . . [t]he
drug requires special handling, provider coordination, or
patient education that cannot be provided by a retail
pharmacy.”
Does point to paragraphs in their complaint that describe
or recite the regulation to argue they stated a claim pursuant
to the UCL. However, those allegations are conclusory and
do not allege facts demonstrating how CVS violated the
regulation. Moreover, the district court properly concluded
that “[t]he regulation does not guarantee Plaintiffs’ access to
out-of-network pharmacies.” Does’ health plans do allow
them to access prescription drugs from in-network retail
pharmacies, just not in the way that Does would like. That
is not sufficient to state a UCL claim.

DOE V. CVS PHARMACY 21

2.
The complaint did not expressly allege a UCL violation
on account of an unfair business practice, but the district
court construed it to so plead. The court interpreted the
relevant portion of the complaint to mean that “the Program
causes [Does] harm in the form of less convenient access to
their prescription medication, and that Defendants’ decision
to enroll Plaintiffs in the Program was ‘ultimately motivated
by profit.’” Does dispute this interpretation, arguing that
“[w]hat made the business practice at issue ‘unfair’ was how
the Program was actually applied, resulting in conduct that
violated public policy and harmed consumers.” Does appear
to base that allegation on three different tests courts use to
evaluate unfairness under the UCL.
Under the UCL’s unfairness prong, courts consider
either: (1) whether the challenged conduct is “tethered to any
underlying constitutional, statutory or regulatory provision,
or that it threatens an incipient violation of an antitrust law,
or violates the policy or spirit of an antitrust law,” Durell v.
Sharp Healthcare, 183 Cal. App. 4th 1350, 1366 (2010));
(2) whether the practice is “immoral, unethical, oppressive,
unscrupulous or substantially injurious to consumers,”
Morgan v. AT&T Wireless Servs., Inc., 177 Cal. App. 4th
1235, 1254 (2009); or (3) whether the practice’s impact on
the victim outweighs “the reasons, justifications and motives
of the alleged wrongdoer.” Id.
Applying the tethering test, Does do not mention the
public policy allegedly violated, either in the complaint or
the briefing, nor do they explain how, the Program violated
that policy. See McKell v. Wash. Mut., Inc., 142 Cal. App.
4th 1457, 1473 (2006). And, as to the balancing test, Does
assert in a conclusory fashion that CVS’s conduct
“outweighs any justification, motive or reason therefor,” but

22 DOE V. CVS PHARMACY

they do not allege how that is so. As to the “immoral” test,
Does challenge the district court’s conclusion that profit
motive is not enough to show “immoral, unethical,
oppressive, unscrupulous or substantially injurious”
conduct, and argue that resolution of the claim under the
immoral test “requires a review of evidence from both sides
and is independent of any contractual relationship between
the parties,” such that the court erred in dismissing the claim.
But the complaint left the district court to guess what
conduct Plaintiffs alleged satisfied the “unfair” prong of the
UCL. Does allege no facts that would support their position,
and their conclusory recitation of one of the UCL’s legal
standards does not clarify what conduct they claim is unfair,
or on what allegations in the complaint Does rely for this
claim. The claim is not adequately pled to give proper notice
of Does’ claim and the grounds on which it lies. See Fed. R.
Civ. P. 8(a)(2). We therefore affirm the district court’s
denial of the UCL unfairness claim.
F
Does argue in their reply brief that reversal of the district
court’s “erroneous holdings” should revive its claim for
declaratory relief. Because Does did not mention the
declaratory relief claim in their opening brief, they waived
this issue. Friends of Yosemite Valley v. Kempthorne,
520 F.3d 1024, 1033 (9th Cir. 2008).
CONCLUSION
For the foregoing reasons, we vacate the district court’s
dismissal of Does’ ACA claim and UCL claim to the extent

DOE V. CVS PHARMACY 23

it is predicated on a violation of the ACA. We affirm the
district court’s dismissal of all other claims.
AFFIRMED in part, VACATED, in part, AND
REMANDED.