`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
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`SENDERRA RX PARTNERS, LLC,
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`Plaintiff,
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`v.
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`BLUE CROSS AND BLUE SHIELD
`OF NORTH CAROLINA,
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`Defendant.
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`1:18-CV-871
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`MEMORANDUM OPINION AND ORDER
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`Catherine C. Eagles, District Judge.
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`The plaintiff, Senderra Rx Partners, LLC, contends it suffered lost profits when
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`Blue Cross and Blue Shield of North Carolina did not allow Senderra to participate in its
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`specialty pharmacy network in violation of the North Carolina “Pharmacy of Choice”
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`statute, fraudulently misrepresented the requirements to participate in the network, and
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`committed unfair and deceptive trade practices. Because there are no disputed questions
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`of material fact and the evidence shows that Senderra is not aggrieved by BCBSNC’s
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`allegedly unlawful actions, BCBSNC’s motion for summary judgment will be granted.
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`FACTS
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`The evidence material to this motion is largely undisputed. To the extent it is not,
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`the Court states the evidence in the light most favorable to Senderra, the non-moving
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`party. See Sedar v. Reston Town Ctr. Prop., LLC, 988 F.3d 756, 761 (4th Cir. 2021).
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`The facts are summarized here and supplemented elsewhere as the need arises.
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`Case 1:18-cv-00871-CCE-JEP Document 156 Filed 04/05/21 Page 1 of 19
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`Senderra is a specialty pharmacy that began participating in BCBSNC’s specialty
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`pharmacy network in 2015. Doc. 7-1 at ¶ 8. Senderra filled prescriptions for persons
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`insured under BCBSNC plans by mail from a Texas dispensary. Doc. 49 at ¶ 17; see
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`Doc. 137-5 at 6.
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`In April 2018, BCBSNC notified participating pharmacies, including Senderra,
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`that it was updating its network requirements and contracts effective September 1, 2018.
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`Doc. 17; see also Doc. 89 at ¶ 5 (showing receipt by Senderra). BCBSNC also told the
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`pharmacies that they would receive a “notice of removal” pursuant to the existing
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`network agreement unless they submitted a form verifying that they were in compliance
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`with the new network requirements by June 8, 2018. Doc. 17. On May 7, 2018,
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`BCBSNC sent each participating pharmacy, including Senderra, an email with more
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`information on the new network, including the new network participation agreement and
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`the special pharmacy addendum. Id. at ¶ 6; see Doc. 69-1 at 11–79.
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`When Senderra joined the network in 2015, BCBSNC required participants to
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`have a “staffed business office” in North Carolina. Doc. 55-2 at 2. The new terms,
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`however, included a requirement that providers have “a dispensing location” in North
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`Carolina. Doc. 69-1 at 71. Senderra immediately recognized that satisfying the in-state
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`dispensing requirement would be difficult, given the short timeframe it had to submit
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`proof of compliance. See Doc. 55-2.
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`In June 2018, Senderra timely applied to join the new network, noting in its
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`application that it had a “staffed business office” in North Carolina without identifying an
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`in-state dispensing location. Doc. 19 at 8. BCBSNC confirmed with Senderra that
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`2
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`Case 1:18-cv-00871-CCE-JEP Document 156 Filed 04/05/21 Page 2 of 19
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`Senderra did not have a dispensing pharmacy in North Carolina. Doc. 23 at 2–3. On July
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`11, 2018, consistent with the provisions of the April letter and existing contract,
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`BCBSNC notified Senderra that the 2015 Agreement would be terminated effective
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`October 15, 2018. Doc. 1-2.
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`Thereafter, employees of Senderra and BCBSNC exchanged emails and had
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`conversations about the in-state dispensing requirement, and Senderra began the work
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`needed to comply with the requirement. In the fall, Senderra bought a business in North
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`Carolina and converted it into a dispensing pharmacy. Doc. 7-1 at ¶ 15. But as of
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`October 15, 2018, Senderra did not have a permit from the North Carolina Board of
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`Pharmacy to operate this dispensary, see Doc. 138-1 (noting the permit was issued
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`November 5, 2018), and the contract with BCBSNC ended. Many pharmacies met the
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`new requirement, and every pharmacy admitted into the new network had an in-state
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`dispensing location with a state permit. See Doc. 48 at ¶¶ 9, 15, 32, 49–53.
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`BCBSNC included as a term of participation that pharmacies seeking to gain entry
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`to the network must “submit all necessary paperwork that BCBSNC requires by 10/1 for
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`a 1/1 entry date, and by 4/1 for a 7/1 entry date.” Doc. 18 at p. 14 ¶ 2.14. Senderra did
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`not provide the necessary paperwork by October 1, as it did not have a state permit on
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`that date. Thus, under the terms of the new agreement, the earliest date BCBSNC would
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`allow Senderra—a pharmacy not in the network seeking to gain entry—to rejoin the
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`network was July 1, 2019, if Senderra met the requirements by April 1, 2019.
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`After it received its permit from the Board of Pharmacy, Senderra reapplied to
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`participate in the network on November 5, 2018. 138-2 at 7. BCBSNC rejected the
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`3
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`Case 1:18-cv-00871-CCE-JEP Document 156 Filed 04/05/21 Page 3 of 19
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`application because Senderra had not shown that the North Carolina location had
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`obtained other credentials required by BCBSNC for the in-state dispensary, specifically a
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`Medicare certification and a URAC credential. Doc. 36-2.
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`None of the written materials BCBSNC sent to the providers explicitly stated that
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`pharmacies had to obtain a Medicare certification or URAC credential specifically for
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`their North Carolina dispensing location or that pre-existing credentials for other, out-of-
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`state locations owned by the same pharmacy would not suffice. See Doc. 69-1 at 11–79.
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`But Senderra was aware from its previous dealings with BCBSNC that it had a
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`credentialing process. See Doc. 49 at ¶¶ 15–18; Doc. 55-1 at 3. And the new
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`participation agreement, which was provided to Senderra and others, did say that the
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`provider “agree[d] to participate and comply with all of [BCBSNC’s] Policies and
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`Procedures” and that the policies and procedures would be provided to pharmacies “by
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`hard copy, CD, or other electronic format, or by posting on [BCBSNC’s] website.” Doc.
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`69-1 at p. 21 §§ 2.3.1, 2.3.1.1. The information on BCBSNC’s website and in the
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`“BlueBook,” the provider manual, specifically discussed credentialing requirements, see
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`Doc. 26; Doc. 88 at ¶¶ 6–15, including the URAC credential. Doc. 88 at ¶ 14.
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`Before October 15, 2018, BCBSNC admitted two pharmacies, Avita Pharmacy
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`and Long’s Drugs, into the new network even though their in-state dispensaries did not
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`have the URAC credential. Doc. 36-3 at 3–4; Doc. 48 at ¶ 41. A BCBSNC manager
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`erroneously assumed that pharmacies with permitted locations also had the URAC
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`credential. Doc. 48 at ¶¶ 23, 41. Those in-state dispensaries had permits from the North
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`Carolina Board of Pharmacy, unlike Senderra. Doc. 48 at ¶¶ 13–15.
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`4
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`Case 1:18-cv-00871-CCE-JEP Document 156 Filed 04/05/21 Page 4 of 19
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`In March 2019, Senderra obtained its URAC credential and, in advance of the
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`April 1 deadline, it reapplied to participate in BCBSNC’s network. Doc. 89 at ¶¶ 8–9.
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`The parties executed a new participation agreement, and Senderra reentered the network
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`on July 1, 2019. Id. at ¶¶ at 10–11.
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`As a result of these events, Senderra did not participate in the network from
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`October 15, 2018, through July 1, 2019. Senderra contends this exclusion caused it to
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`lose millions of dollars in revenue and profits.
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`ANALYSIS
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`Senderra has three remaining claims against BCBSNC.1 First, Senderra contends
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`that BCBSNC violated the North Carolina “Pharmacy of Choice” statute, N.C. Gen. Stat.
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`§ 58-51-37, by “failing to provide sufficient information as to the various requirements
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`for a dispensing location” and issuing “vague, incomplete, and conflicting” instructions
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`on how to satisfy the requirements, and by enforcing the requirements with “unequal
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`force and manner.” See Doc. 36 at ¶¶ 48–61. Second, Senderra contends BCBSNC
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`falsely represented its credentialing requirements and how Senderra could satisfy the
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`requirements in their communications with Senderra between July 19, 2018, and
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`November 2, 2018. Id. at ¶¶ 79–86.2 Third, Senderra contends that BCBSNC committed
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`1 The Court dismissed parts of Senderra’s Chapter 75 and fraud claims in its order granting-
`and denying-in-part BCBSNC’s motion for to dismiss. See generally Doc. 79. For clarity and
`ease of reading, the Court has summarized Senderra’s causes of actions only as they survived.
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`2 The Court dismissed Senderra’s fraud claim to the extent it was based on (1) BCBSNC’s
`failure to affirmatively disclose the credentialing requirements, as BCBSNC had no common law
`duty to disclose; and (2) concealments or misrepresentations about applying the terms of
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`5
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`Case 1:18-cv-00871-CCE-JEP Document 156 Filed 04/05/21 Page 5 of 19
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`unfair trade practices in violation of N.C. Gen. Stat. § 75-1.1, by its disparate treatment of
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`Senderra, its failure to make terms and conditions available to Senderra, and its
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`misrepresentations about participation requirements. Id. at ¶¶ 62–69.3
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`Summary judgment is appropriate only “if the movant shows that there is no
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`genuine dispute as to any material fact and the movant is entitled to judgment as a matter
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`of law.” Fed. R. Civ. P. 56(a). “Thus, if the evidence would permit a jury to find in the
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`non-movant’s favor on a disputed question of material fact, summary judgment is
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`inappropriate.” EEOC v. McLeod Health, Inc., 914 F.3d 876, 880 (4th Cir. 2019).
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`I.
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`Chapter 58 Pharmacy of Choice Claims
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`The North Carolina “Pharmacy of Choice” statute in Chapter 58 applies to
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`“insurance companies . . . that provide or administer coverages and benefits for
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`prescription drugs” and “all health benefit plans providing pharmaceutical services
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`benefits, including prescription drugs, to any resident of North Carolina.” N.C. Gen. Stat.
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`§ 58-51-37(a). As is relevant here, the statute provides that the terms of a health benefit
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`plan shall not:
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`--
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`Prohibit or limit a resident of this State. . .from selecting a pharmacy
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`of his or her choice when the pharmacy has agreed to participate in
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`participation equally to all pharmacies, as such statements were not the cause of alleged harm.
`Doc. 79 at 21–22.
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` 3
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` The Court dismissed Senderra’s Chapter 75 claim to the extent it was based on: (1)
`BCBSNC notifying Senderra’s patients that Senderra would be terminated from the network; and
`(2) imposing requirements that are “not reasonable and relevant.” Doc. 79 at 14–15.
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`6
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`Case 1:18-cv-00871-CCE-JEP Document 156 Filed 04/05/21 Page 6 of 19
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`the health benefit plan according to the terms offered by the insurer.
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`§ 58-51-37(c)(1) (immaterial provisions deleted for clarity).
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`--
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`Deny a pharmacy the opportunity to participate as a contract
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`provider under a health benefit plan if the pharmacy agrees to
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`provide pharmacy services that meet the terms and requirements of
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`the insurer. § 58-51-37(c)(2) (immaterial provisions deleted for
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`clarity).
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`--
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`Impose a monetary advantage or penalty that would affect a
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`beneficiary’s choice of pharmacy. § 58-51-37(c)(4).
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`The statute further provides that a “violation of this section creates a civil cause of action
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`for damages or injunctive relief in favor of any person or pharmacy aggrieved by the
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`violation.” N.C. Gen. Stat. § 58-51-37(h).
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`BCBSNC asserts that this statute does not apply to the pharmacy network at issue
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`in this case. In the alternative, it contends that Senderra has not shown a violation.
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`A. The statute applies to the specialty pharmacy network
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`The Court––sitting in diversity––applies state law principles of statutory
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`construction, as enunciated and applied by the North Carolina Supreme Court. See Volvo
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`Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 482 (4th Cir. 2007).
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`A clear and unambiguous statute must be construed using its plain meaning. Burgess v.
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`Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). By its
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`terms, the “Pharmacy of Choice” statute “shall apply to all health benefit plans providing
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`pharmaceutical services benefits, including prescription drugs, to any resident of North
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`7
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`Case 1:18-cv-00871-CCE-JEP Document 156 Filed 04/05/21 Page 7 of 19
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`Carolina,” § 58-51-37(a), and the three prohibitions at issue apply specifically to health
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`benefit plans. N.C. Gen. Stat. §§ 58-51-37(c)(1), (2), (4).
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`BCBSNC provides health insurance policies that are “health benefit plans,” as that
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`term is defined in § 58-51-37(b)(3) and § 58-50-110(11). Doc. 155 at ¶ 1. These health
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`benefit plans provide pharmaceutical services benefits, including prescription drugs, to
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`residents of North Carolina, as described in § 58- 51-37(a). Id. at ¶ 2. The “Pharmacy of
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`Choice” statute applies to these health benefit plans per § 58-51-37(a). Doc. 154 at ¶ 3;
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`see Doc. 155 at 1.
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`Under most of BCBSNC’s health benefit plans, for specialty drug prescriptions to
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`be reimbursed at the highest level, beneficiaries and participants must fill the prescription
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`at a specialty pharmacy within BCBSNC’s network. Doc. 155 at ¶¶ 4–5. BCBSNC
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`allows pharmacies to participate as contract providers to supply services for these health
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`benefit plans through a network participation agreement. Id. at ¶ 7. Once a pharmacy
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`and BCBSNC execute the participation agreement, the pharmacy is part of BCBSNC’s
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`specialty pharmacy network. Doc. 154 at ¶ 9; see Doc. 155 at 1. Pharmacies within
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`BCBSNC’s specialty pharmacy network participate as “contract providers” as that term is
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`defined in § 58-51-37(b)(2), for a health benefit plan, as described in § 58-51-37(c)(2).
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`Doc. 155 at ¶ 10.
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`Here, BCBSNC is an insurer offering “health benefit plans” to residents of North
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`Carolina. Id. at ¶¶ 1–2. While the terms of the different plans that BCBSNC offers vary
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`to some extent, under most if not all of the relevant plans, beneficiaries and participants
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`pay less out of pocket for specialty drug prescriptions filled at a specialty pharmacy
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`within BCBSNC’s network. Id. at ¶¶ 4–5. The network participation agreement is the
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`contract between BCBSNC and each pharmacy participating in its specialty pharmacy
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`network in which the pharmacy agrees to provide pharmacy services to persons enrolled
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`in a BCBSNC health benefit plan, according to the terms and requirements of BCBSNC.
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`Id. at ¶¶ 8, 11.
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`Because BCBSNC sells health insurance policies that constitute “health benefit
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`plans” and pharmacies in BCBSNC’s specialty pharmacy network provide pharmacy
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`services to BCBSNC’s members (i.e., the plan beneficiaries) pursuant to health benefit
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`plan terms than reference the network, the network participation agreement becomes part
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`of the health benefit plan. The “Pharmacy of Choice” statute therefore applies to
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`BCBSNC’s network relationships with pharmacies.
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`BCBSNC contends that the statute does not apply because the network
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`participation agreement is not a “health benefit plan.” The statute defines health benefit
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`plans as “any accident and health insurance policy or certificate; nonprofit hospital or
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`medical service corporation contract; health, hospital, or medical service corporation plan
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`contract; HMO subscriber contract; plan provided by a MEWA or plan provided by
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`another benefit arrangement.” N.C. Gen. Stat. §§ 58-51-37(b)(3), 58-50-110(11).
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`BCBSNC construes the definition narrowly, contending a “health benefit plan” is the
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`“insurance policy or health benefit plan issued to an insured.” Doc. 140 at 4. BCBSNC
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`contends that even though some of its policies essentially require beneficiaries or
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`participants to use an in-network pharmacy and even though the network agreement—not
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`the insurance policy—governs pharmacies’ participation in BCBSNC’s network, the
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`9
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`Case 1:18-cv-00871-CCE-JEP Document 156 Filed 04/05/21 Page 9 of 19
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`statute does not apply. For several reasons, the Court concludes that the statute applies in
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`this context.
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`First, courts “do[] not read segments of a statute in isolation.” Rhyne v. K-Mart
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`Corp., 358 N.C. 160, 188, 594 S.E.2d 1, 20 (2004). They “construe statutes in pari
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`materia, giving effect, if possible, to every provision.” Id. The statute as a whole is
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`structured to ensure that beneficiaries and participants enrolled in health benefit plans
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`using provider networks can select their pharmacy of choice. See, e.g., § 58-51-37(e)
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`(“The entity providing the health benefit plan shall, through reasonable means, on a
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`timely basis, and on regular intervals in order to effectuate the purposes of this section,
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`inform the beneficiaries of the plan of the names and locations of pharmacies that are
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`participating in the plan as providers of pharmacy services and prescription drugs.”); §
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`58-51-37(f) (“If rebates or marketing incentives are allowed to pharmacies or other
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`dispensing entities providing services or benefits under a health benefit plan, these
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`rebates or marketing incentives shall be offered on an equal basis to all pharmacies and
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`other dispensing entities providing services or benefits under a health benefit plan . . . .”).
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`The prohibitions in § 58-51-37(c) must be read in this context.
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`Second, as BCBSNC acknowledges, the statute is remedial. It protects residents’
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`right to pick their pharmacy of choice by prohibiting insurers from excluding pharmacies
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`from their network and granting aggrieved pharmacies and residents a remedy. See
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`Marshall v. Miller, 302 N.C. 539, 546, 276 S.E.2d 397, 402 (1981) (characterizing a
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`statute that “encourages private enforcement” and “provides a remedy for aggrieved
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`parties” as remedial). “A remedial statute must be construed broadly in light of the evils
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`sought to be eliminated, the remedies intended to be applied, and the objective to be
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`attained.” O & M Indus. v. Smith Eng'g Co., 360 N.C. 263, 268, 624 S.E.2d 345, 348
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`(2006) (cleaned up). If BCBSNC’s construction were adopted, BCBSNC could exclude
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`pharmacies at will, so long as it used a network agreement to do so.
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`Third, the legislature understood that insurers offer health benefit plans with
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`networks of health care providers. Indeed, in other parts of Chapter 58, the legislature
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`addressed how general provisions applied to plans with network providers. See N.C.
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`Gen. Stat. §§ 58-3-200(d), 58-50-30. Section 58-51-37 assumes that some entities
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`offering health benefit plans use networks for pharmaceutical benefits and imposes
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`certain requirements based on that assumption. For example, §§ 58-51-37(c)(1) and
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`(c)(2) anticipate that pharmacies will participate in health benefit plans according to the
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`terms offered by the insurer (i.e., participate in the network), and prohibit insurers from
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`excluding a pharmacy as a contract provider.
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`“It is a fundamental canon of statutory construction that the words of a statute
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`must be read in their context and with a view to their place in the overall statutory
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`scheme.” See Sturgeon v. Frost, 577, U.S. 424, 136 S. Ct. 1061, 1070 (2016). When
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`read in the context of the entire statute, § 58-51-37(c) applies to BCBSNC’s network
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`relationship with pharmacies.
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`B. There are no disputed questions of material fact on the POC claims
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`There are not many cases interpreting Chapter 58. See Doc. 78 at 5 n.1. No court
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`has clearly set forth the elements of “a violation of this section” or defined when a
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`pharmacy is “aggrieved” by such a violation.
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`Senderra asserts that BCBSNC violated three subsections of § 58-51-37(c). A
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`cause of action based on any of these subsections requires Senderra to show that it was
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`“aggrieved” by the violation. N.C. Gen. Stat. § 58-51-37(h).
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`1. Prohibiting or limiting residents from selecting their pharmacy of choice
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`Section 58-51-37(c)(1) provides that “the terms of a health benefit plan shall not
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`prohibit or limit a resident of this State . . . from selecting a pharmacy of his or her choice
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`when the pharmacy has agreed to participate in the health benefit plan according to the
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`terms offered by the insurer.” § 58-51-37(c)(1) (immaterial provisions deleted for
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`clarity). The Court construes the statute to require BCBSNC to offer pharmacies a fair
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`opportunity to participate, which means that it must make its terms of participation
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`available to all interested providers.
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`To establish a violation of this subsection, Senderra must show that BCBSNC’s
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`health benefit plans prohibited or limited residents of this State from selecting Senderra
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`as their pharmacy of choice between October 15, 2018, and July 1, 2019, that Senderra
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`agreed to meet, and did meet, the terms for participation offered by BCBSNC, and that
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`Senderra was aggrieved by BCBSNC’s actions. N.C. Gen. Stat. §§ 58-51-37(c)(1), (h).
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`It is undisputed that BCBSNC prohibited or limited residents of North Carolina
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`from selecting Senderra as their pharmacy of choice from October 15, 2018, through July
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`1, 2019, in the sense that any resident who used Senderra paid more out of pocket for
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`their prescription. However, all the evidence shows that BCBSNC made its terms
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`available to Senderra through mailings and its website, that Senderra knew BCBSNC
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`required an in-state dispensary, and that Senderra did not have an operational in-state
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`dispensing pharmacy when it applied to participate in the new network in June or when
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`the old contract expired. Thus, Senderra did not meet a clearly communicated term
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`required by BCBSNC before it could participate in the specialty pharmacy network.
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`Given that Senderra did not meet the terms offered by BCBSNC, it cannot show
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`that BCBSNC violated § 58-51-37(c)(1) when it limited its plan beneficiaries from
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`obtaining prescriptions from Senderra. In the absence of a disputed question of material
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`fact, BCBSNC is entitled to summary judgment on this claim.
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`Senderra contends that BCBSNC did not clearly state its terms and requirements
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`because it did not tell Senderra until sometime in October 2018 that Senderra needed to
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`complete BCBSNC’s credentialing process to satisfy the in-state dispensary requirement.
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`Even assuming this is so, Senderra was not aggrieved by that purported violation because
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`Senderra had not met the preliminary requirement of having a permitted in-state
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`dispensing pharmacy. Senderra similarly contends that BCBSNC did not clearly state its
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`terms and requirements because it did not tell Senderra it could satisfy the dispensing
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`requirement through a corporate affiliate. But satisfying the dispensary requirement
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`through a corporate affiliate was merely one way in which pharmacies with qualifying
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`affiliations could satisfy the requirement— it was not an exception. Doc. 137-7 at 5–6.
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`And BCBSNC had no obligation to give Senderra advice about corporate structures
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`available under state law. The statute requires BCBSNC to make its terms available to
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`interested pharmacies, not walk the pharmacy through how to meet those terms.
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`Next, Senderra contends that BCBSNC allowed other specialty pharmacies to
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`participate in the network even though they did not meet all the new terms. Specifically,
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`13
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`it is undisputed that BCBSNC admitted two pharmacies, Avita and Long’s, into the
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`network even though their in-state dispensing locations did not have the URAC
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`credential. Doc. 36-3 at 3; Doc. 48 at ¶ 41. But this does not matter, as Senderra did not
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`have a permitted in-state dispensary. Assuming BCBSNC violated the statute by
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`inadvertently offering different terms to different pharmacies, Senderra was not
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`aggrieved by that violation since it did not meet the basic term imposed on all pharmacies
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`and met by every pharmacy admitted into the network.
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`Finally, Senderra contends that BCBSNC enforced its contractual provisions about
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`entry dates differently as to Senderra. As to this point, Senderra relies on the fact that
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`some pharmacies signed their network participation agreements after October 1, 2018.
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`See Doc. 137-2 at 5–6. But the agreement merely requires pharmacies to “submit all
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`necessary paperwork that BCBSNC requires by 10/1 for a 1/1 entry date, and by 4/1 for a
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`7/1 entry date.” Doc. 18 at p. 14 ¶ 2.14. It says nothing about a deadline for executing
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`the participation agreement, see Doc. 137-2 at 6, nor is there any evidence that any
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`pharmacies who executed their agreements after October 1, 2018, had not timely met the
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`dispensing requirement.
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`2. Denying pharmacies the opportunity to participate as contract providers
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`Section 58-51-37(c)(2) provides that “the terms of a health benefit plan shall not
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`deny a pharmacy the opportunity to participate as a contract provider under a health
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`benefit plan if the pharmacy agrees to provide pharmacy services that meet the terms and
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`requirements of the insurer.” § 58-51-37(c)(2) (immaterial provisions deleted for clarity).
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`To establish a violation of this subsection, Senderra must show that BCBSNC’s health
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`14
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`Case 1:18-cv-00871-CCE-JEP Document 156 Filed 04/05/21 Page 14 of 19
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`benefit plan denied Senderra a fair opportunity to participate as a contract provider under
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`its plan between October 15, 2018, and July 1, 2019, that Senderra agreed to meet, and
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`did meet, the terms for participation offered by BCBSNC, and that Senderra was
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`aggrieved by BCBSNC’s decision. N.C. Gen. Stat. §§ 58-51-37(c)(2), (h).
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`BCBSNC is entitled to summary judgment on Senderra’s claim based on this
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`subsection for the same reason its § 58-51-37(c)(1) claim fails: Senderra did not meet
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`BCBSNC’s terms and requirements as of October 15, 2018, because it did not have a
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`permitted in-state dispensary. That term was clearly communicated back in April 2018.
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`The evidence was undisputed that the other terms were available on referenced websites
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`and materials. Moreover, Senderra was not aggrieved by BCBSNC’s alleged violations
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`based on how BCBSNC communicated other terms and requirements for participation to
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`Senderra or how BCBSNC applied other terms and requirements, given Senderra’s
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`undisputed failure to have an in-state dispensing location which could lawfully operate by
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`the deadlines imposed by BCBSNC and given that all pharmacies admitted into the
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`network met this basic requirement.
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`3. Imposing a monetary advantage or penalty upon pharmacies
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`Section 58-51-37(c)(4) provides that “the terms of a health benefit plan shall not
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`impose a monetary advantage or penalty under a health benefit plan that would affect a
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`beneficiary’s choice of pharmacy.” § 58-51-37(c)(4). To establish a violation of this
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`subsection, Senderra must show that BCBSNC imposed a monetary advantage or penalty
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`that would affect a beneficiary’s choice of pharmacy and that Senderra was aggrieved by
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`the advantage or penalty. N.C. Gen. Stat. §§ 58-51-37(c)(4), (h).
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`15
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`Case 1:18-cv-00871-CCE-JEP Document 156 Filed 04/05/21 Page 15 of 19
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`BCBSNC is entitled to summary judgment on Senderra’s claim based on this
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`subsection for the same reason its other claims under § 58-51-37(c) fail: Senderra cannot
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`show it was aggrieved by any of BCBSNC’s alleged violations.
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`Senderra contends that BCBSNC imposed a monetary advantage on Avita and
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`Long’s when it allowed them to participate in the network even though neither pharmacy
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`had the URAC credential by the June 8, 2018, deadline and allowed them to remain in-
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`network beyond the 30-day cure period without the URAC credential. It is undisputed
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`that the pharmacies failed to obtain the URAC credential by the June deadline or within
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`the 30-day cure period. See Doc. 137-7 at 3. But, as with its other claims, because
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`Senderra had not satisfied the dispensing requirement, it was not aggrieved by the fact
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`that BCBSNC effectively excused two pharmacies who did meet that requirement from
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`complying with an additional URAC credentialing requirement.
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`Finally, Senderra contends that the requirement that pharmacies have an in-state
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`dispensing location was itself a “monetary advantage or penalty” and that BCBSNC
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`violated § 58-51-37(c)(4) by imposing this requirement. But the statute explicitly gives
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`insurers the discretion to determine the terms and requirements that pharmacies must
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`meet to serve as contract providers under their health benefit plans. N.C. Gen. Stat. § 58-
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`51-37(c)(1), (2). It does not require that the terms and requirements benefit beneficiaries
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`or participants in any particular way, nor does it impose any sort of objective
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`reasonableness requirement.
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`16
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`Case 1:18-cv-00871-CCE-JEP Document 156 Filed 04/05/21 Page 16 of 19
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`4. BCBSNC is entitled to summary judgment on the POC claims
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`Senderra has not shown that there are disputed questions of material fact that, if
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`decided in its favor, would support a judgment in Senderra’s favor. The undisputed facts
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`show that Senderra did not have a pharmacy in North Carolina by the required date, that
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`it had not met a basic term imposed by BCBSNC for network participation, that all
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`pharmacies admitted into the new network met this requirement, and that, as to this basic
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`term, Senderra was not treated differently than other specialty pharmacies. BCBSNC is
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`entitled to summary judgment on this claim.
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`II.
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`BCBSNC is entitled to summary judgment on the fraud claims
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`To state a claim for fraud, the plaintiff must show (1) a false representation or
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`concealment of a material fact, (2) that is reasonably calculated to deceive, (3) is made
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`with the intent to deceive and (4) does, in fact, deceive, (5) resulting in damage to the
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`injured party. Forbis v. Neal, 361 N.C. 519, 526–27, 649 S.E.2d 382, 387 (2007). The
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`plaintiff’s reliance on the alleged concealments or misrepresentations must be reasonable.
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`Pearson v. Gardere Wynne Sewell LLP, 814 F. Supp. 2d 592, 605 (M.D.N.C. 2011).
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`Senderra’s evidence is insufficient to establish disputed questions of material fact as to
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`several of these elements, but the Court will limit its discussion to the reasonable reliance
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`and damages requirements.
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`Senderra contends that BCBSNC concealed or misrepresented material facts about
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`its dispensing requirement by telling Senderra that the only requirement it had not met
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`was having an in-state dispensing location and failing to mention that Senderra had to
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`obtain the URAC credential and Medicare certification for its North Carolina dispensary.
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`17
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`Case 1:18-cv-00871-CCE-JEP Document 156 Filed 04/05/21 Page 17 of 19
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`Senderra further contends that it reasonably relied on the alleged misrepresentations
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`because information clarifying the dispensing requirement was not readily accessible to
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`Senderra. As discussed supra, Senderra understood that BCBSNC had a credentialing
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`requirement: It submitted a credentialing application when it joined the network, Doc. 49
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`at ¶ 17, and a recredentialing application in December 2016, Doc. 55-1 at 3, which
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`included the URAC credential. Information clarifying the credentialing process was also
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`available on BCBSNC’s website at all relevant times. Doc. 88 at ¶¶ 6–15. Many other
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`pharmacies timely met the credentialing requirements and were admitted into the new
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`network. See, e.g., 48 at ¶ 11 (noting that four “newly credentialed” pharmacies
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`submitted the verification form to participate and that 24 pharmacies satisfied the
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`requirements and became participating providers in the new network). Senderra has not
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`offered any evidence that anyone at BCBSNC ever told Senderra that it did not have to
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`meet the URAC credentialing requirement specifically or other credentialing
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`requirements generally, nor is there any evidence that anyone at Senderra ever asked
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`BCBSNC about
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