SENDERRA RX PARTNERS, LLC v. BLUE CROSS AND BLUE SHIELD OF NORTH CAROLINA

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SENDERRA RX PARTNERS, LLC, )

)

Plaintiff, )

)

v. ) 1:18-CV-871

)

BLUE CROSS AND BLUE SHIELD )

OF NORTH CAROLINA, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, District Judge.

The plaintiff, Senderra Rx Partners, LLC, contends it suffered lost profits when

Blue Cross and Blue Shield of North Carolina did not allow Senderra to participate in its

specialty pharmacy network in violation of the North Carolina “Pharmacy of Choice”

statute, fraudulently misrepresented the requirements to participate in the network, and

committed unfair and deceptive trade practices. Because there are no disputed questions

of material fact and the evidence shows that Senderra is not aggrieved by BCBSNC’s

allegedly unlawful actions, BCBSNC’s motion for summary judgment will be granted.

FACTS

The evidence material to this motion is largely undisputed. To the extent it is not,

the Court states the evidence in the light most favorable to Senderra, the non-moving

party. See Sedar v. Reston Town Ctr. Prop., LLC, 988 F.3d 756, 761 (4th Cir. 2021).

The facts are summarized here and supplemented elsewhere as the need arises.

Senderra is a specialty pharmacy that began participating in BCBSNC’s specialty

pharmacy network in 2015. Doc. 7-1 at ¶ 8. Senderra filled prescriptions for persons

insured under BCBSNC plans by mail from a Texas dispensary. Doc. 49 at ¶ 17; see

Doc. 137-5 at 6.

In April 2018, BCBSNC notified participating pharmacies, including Senderra,

that it was updating its network requirements and contracts effective September 1, 2018.

Doc. 17; see also Doc. 89 at ¶ 5 (showing receipt by Senderra). BCBSNC also told the

pharmacies that they would receive a “notice of removal” pursuant to the existing

network agreement unless they submitted a form verifying that they were in compliance

with the new network requirements by June 8, 2018. Doc. 17. On May 7, 2018,

BCBSNC sent each participating pharmacy, including Senderra, an email with more

information on the new network, including the new network participation agreement and

the special pharmacy addendum. Id. at ¶ 6; see Doc. 69-1 at 11–79.

When Senderra joined the network in 2015, BCBSNC required participants to

have a “staffed business office” in North Carolina. Doc. 55-2 at 2. The new terms,

however, included a requirement that providers have “a dispensing location” in North

Carolina. Doc. 69-1 at 71. Senderra immediately recognized that satisfying the in-state

dispensing requirement would be difficult, given the short timeframe it had to submit

proof of compliance. See Doc. 55-2.

In June 2018, Senderra timely applied to join the new network, noting in its

application that it had a “staffed business office” in North Carolina without identifying an

in-state dispensing location. Doc. 19 at 8. BCBSNC confirmed with Senderra that

Senderra did not have a dispensing pharmacy in North Carolina. Doc. 23 at 2–3. On July

11, 2018, consistent with the provisions of the April letter and existing contract,

BCBSNC notified Senderra that the 2015 Agreement would be terminated effective

October 15, 2018. Doc. 1-2.

Thereafter, employees of Senderra and BCBSNC exchanged emails and had

conversations about the in-state dispensing requirement, and Senderra began the work

needed to comply with the requirement. In the fall, Senderra bought a business in North

Carolina and converted it into a dispensing pharmacy. Doc. 7-1 at ¶ 15. But as of

October 15, 2018, Senderra did not have a permit from the North Carolina Board of

Pharmacy to operate this dispensary, see Doc. 138-1 (noting the permit was issued

November 5, 2018), and the contract with BCBSNC ended. Many pharmacies met the

new requirement, and every pharmacy admitted into the new network had an in-state

dispensing location with a state permit. See Doc. 48 at ¶¶ 9, 15, 32, 49–53.

BCBSNC included as a term of participation that pharmacies seeking to gain entry

to the network must “submit all necessary paperwork that BCBSNC requires by 10/1 for

a 1/1 entry date, and by 4/1 for a 7/1 entry date.” Doc. 18 at p. 14 ¶ 2.14. Senderra did

not provide the necessary paperwork by October 1, as it did not have a state permit on

that date. Thus, under the terms of the new agreement, the earliest date BCBSNC would

allow Senderra—a pharmacy not in the network seeking to gain entry—to rejoin the

network was July 1, 2019, if Senderra met the requirements by April 1, 2019.

After it received its permit from the Board of Pharmacy, Senderra reapplied to

participate in the network on November 5, 2018. 138-2 at 7. BCBSNC rejected the

application because Senderra had not shown that the North Carolina location had

obtained other credentials required by BCBSNC for the in-state dispensary, specifically a

Medicare certification and a URAC credential. Doc. 36-2.

None of the written materials BCBSNC sent to the providers explicitly stated that

pharmacies had to obtain a Medicare certification or URAC credential specifically for

their North Carolina dispensing location or that pre-existing credentials for other, out-of-

state locations owned by the same pharmacy would not suffice. See Doc. 69-1 at 11–79.

But Senderra was aware from its previous dealings with BCBSNC that it had a

credentialing process. See Doc. 49 at ¶¶ 15–18; Doc. 55-1 at 3. And the new

participation agreement, which was provided to Senderra and others, did say that the

provider “agree[d] to participate and comply with all of [BCBSNC’s] Policies and

Procedures” and that the policies and procedures would be provided to pharmacies “by

hard copy, CD, or other electronic format, or by posting on [BCBSNC’s] website.” Doc.

69-1 at p. 21 §§ 2.3.1, 2.3.1.1. The information on BCBSNC’s website and in the

“BlueBook,” the provider manual, specifically discussed credentialing requirements, see

Doc. 26; Doc. 88 at ¶¶ 6–15, including the URAC credential. Doc. 88 at ¶ 14.

Before October 15, 2018, BCBSNC admitted two pharmacies, Avita Pharmacy

and Long’s Drugs, into the new network even though their in-state dispensaries did not

have the URAC credential. Doc. 36-3 at 3–4; Doc. 48 at ¶ 41. A BCBSNC manager

erroneously assumed that pharmacies with permitted locations also had the URAC

credential. Doc. 48 at ¶¶ 23, 41. Those in-state dispensaries had permits from the North

Carolina Board of Pharmacy, unlike Senderra. Doc. 48 at ¶¶ 13–15.

In March 2019, Senderra obtained its URAC credential and, in advance of the

April 1 deadline, it reapplied to participate in BCBSNC’s network. Doc. 89 at ¶¶ 8–9.

The parties executed a new participation agreement, and Senderra reentered the network

on July 1, 2019. Id. at ¶¶ at 10–11.

As a result of these events, Senderra did not participate in the network from

October 15, 2018, through July 1, 2019. Senderra contends this exclusion caused it to

lose millions of dollars in revenue and profits.

ANALYSIS

Senderra has three remaining claims against BCBSNC.1 First, Senderra contends

that BCBSNC violated the North Carolina “Pharmacy of Choice” statute, N.C. Gen. Stat.

§ 58-51-37, by “failing to provide sufficient information as to the various requirements

for a dispensing location” and issuing “vague, incomplete, and conflicting” instructions

on how to satisfy the requirements, and by enforcing the requirements with “unequal

force and manner.” See Doc. 36 at ¶¶ 48–61. Second, Senderra contends BCBSNC

falsely represented its credentialing requirements and how Senderra could satisfy the

requirements in their communications with Senderra between July 19, 2018, and

November 2, 2018. Id. at ¶¶ 79–86.2 Third, Senderra contends that BCBSNC committed

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.

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

unfair trade practices in violation of N.C. Gen. Stat. § 75-1.1, by its disparate treatment of

Senderra, its failure to make terms and conditions available to Senderra, and its

misrepresentations about participation requirements. Id. at ¶¶ 62–69.3

Summary judgment is appropriate only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). “Thus, if the evidence would permit a jury to find in the

non-movant’s favor on a disputed question of material fact, summary judgment is

inappropriate.” EEOC v. McLeod Health, Inc., 914 F.3d 876, 880 (4th Cir. 2019).

I. Chapter 58 Pharmacy of Choice Claims

The North Carolina “Pharmacy of Choice” statute in Chapter 58 applies to

“insurance companies . . . that provide or administer coverages and benefits for

prescription drugs” and “all health benefit plans providing pharmaceutical services

benefits, including prescription drugs, to any resident of North Carolina.” N.C. Gen. Stat.

§ 58-51-37(a). As is relevant here, the statute provides that the terms of a health benefit

plan shall not:

-- Prohibit or limit a resident of this State. . .from selecting a pharmacy

of his or her choice when the pharmacy has agreed to participate in

participation equally to all pharmacies, as such statements were not the cause of alleged harm.

Doc. 79 at 21–22.

3 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.

the health benefit plan according to the terms offered by the insurer.

§ 58-51-37(c)(1) (immaterial provisions deleted for clarity).

-- Deny a pharmacy the opportunity to participate as a contract

provider under a health benefit plan if the pharmacy agrees to

provide pharmacy services that meet the terms and requirements of

the insurer. § 58-51-37(c)(2) (immaterial provisions deleted for

clarity).

-- Impose a monetary advantage or penalty that would affect a

beneficiary’s choice of pharmacy. § 58-51-37(c)(4).

The statute further provides that a “violation of this section creates a civil cause of action

for damages or injunctive relief in favor of any person or pharmacy aggrieved by the

violation.” N.C. Gen. Stat. § 58-51-37(h).

BCBSNC asserts that this statute does not apply to the pharmacy network at issue

in this case. In the alternative, it contends that Senderra has not shown a violation.

A. The statute applies to the specialty pharmacy network

The Court––sitting in diversity––applies state law principles of statutory

construction, as enunciated and applied by the North Carolina Supreme Court. See Volvo

Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 482 (4th Cir. 2007).

A clear and unambiguous statute must be construed using its plain meaning. Burgess v.

Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990). By its

terms, the “Pharmacy of Choice” statute “shall apply to all health benefit plans providing

pharmaceutical services benefits, including prescription drugs, to any resident of North

Carolina,” § 58-51-37(a), and the three prohibitions at issue apply specifically to health

benefit plans. N.C. Gen. Stat. §§ 58-51-37(c)(1), (2), (4).

BCBSNC provides health insurance policies that are “health benefit plans,” as that

term is defined in § 58-51-37(b)(3) and § 58-50-110(11). Doc. 155 at ¶ 1. These health

benefit plans provide pharmaceutical services benefits, including prescription drugs, to

residents of North Carolina, as described in § 58- 51-37(a). Id. at ¶ 2. The “Pharmacy of

Choice” statute applies to these health benefit plans per § 58-51-37(a). Doc. 154 at ¶ 3;

see Doc. 155 at 1.

Under most of BCBSNC’s health benefit plans, for specialty drug prescriptions to

be reimbursed at the highest level, beneficiaries and participants must fill the prescription

at a specialty pharmacy within BCBSNC’s network. Doc. 155 at ¶¶ 4–5. BCBSNC

allows pharmacies to participate as contract providers to supply services for these health

benefit plans through a network participation agreement. Id. at ¶ 7. Once a pharmacy

and BCBSNC execute the participation agreement, the pharmacy is part of BCBSNC’s

specialty pharmacy network. Doc. 154 at ¶ 9; see Doc. 155 at 1. Pharmacies within

BCBSNC’s specialty pharmacy network participate as “contract providers” as that term is

defined in § 58-51-37(b)(2), for a health benefit plan, as described in § 58-51-37(c)(2).

Doc. 155 at ¶ 10.

Here, BCBSNC is an insurer offering “health benefit plans” to residents of North

Carolina. Id. at ¶¶ 1–2. While the terms of the different plans that BCBSNC offers vary

to some extent, under most if not all of the relevant plans, beneficiaries and participants

pay less out of pocket for specialty drug prescriptions filled at a specialty pharmacy

within BCBSNC’s network. Id. at ¶¶ 4–5. The network participation agreement is the

contract between BCBSNC and each pharmacy participating in its specialty pharmacy

network in which the pharmacy agrees to provide pharmacy services to persons enrolled

in a BCBSNC health benefit plan, according to the terms and requirements of BCBSNC.

Id. at ¶¶ 8, 11.

Because BCBSNC sells health insurance policies that constitute “health benefit

plans” and pharmacies in BCBSNC’s specialty pharmacy network provide pharmacy

services to BCBSNC’s members (i.e., the plan beneficiaries) pursuant to health benefit

plan terms than reference the network, the network participation agreement becomes part

of the health benefit plan. The “Pharmacy of Choice” statute therefore applies to

BCBSNC’s network relationships with pharmacies.

BCBSNC contends that the statute does not apply because the network

participation agreement is not a “health benefit plan.” The statute defines health benefit

plans as “any accident and health insurance policy or certificate; nonprofit hospital or

medical service corporation contract; health, hospital, or medical service corporation plan

contract; HMO subscriber contract; plan provided by a MEWA or plan provided by

another benefit arrangement.” N.C. Gen. Stat. §§ 58-51-37(b)(3), 58-50-110(11).

BCBSNC construes the definition narrowly, contending a “health benefit plan” is the

“insurance policy or health benefit plan issued to an insured.” Doc. 140 at 4. BCBSNC

contends that even though some of its policies essentially require beneficiaries or

participants to use an in-network pharmacy and even though the network agreement—not

the insurance policy—governs pharmacies’ participation in BCBSNC’s network, the

statute does not apply. For several reasons, the Court concludes that the statute applies in

this context.

First, courts “do[] not read segments of a statute in isolation.” Rhyne v. K-Mart

Corp., 358 N.C. 160, 188, 594 S.E.2d 1, 20 (2004). They “construe statutes in pari

materia, giving effect, if possible, to every provision.” Id. The statute as a whole is

structured to ensure that beneficiaries and participants enrolled in health benefit plans

using provider networks can select their pharmacy of choice. See, e.g., § 58-51-37(e)

(“The entity providing the health benefit plan shall, through reasonable means, on a

timely basis, and on regular intervals in order to effectuate the purposes of this section,

inform the beneficiaries of the plan of the names and locations of pharmacies that are

participating in the plan as providers of pharmacy services and prescription drugs.”); §

58-51-37(f) (“If rebates or marketing incentives are allowed to pharmacies or other

dispensing entities providing services or benefits under a health benefit plan, these

rebates or marketing incentives shall be offered on an equal basis to all pharmacies and

other dispensing entities providing services or benefits under a health benefit plan . . . .”).

The prohibitions in § 58-51-37(c) must be read in this context.

Second, as BCBSNC acknowledges, the statute is remedial. It protects residents’

right to pick their pharmacy of choice by prohibiting insurers from excluding pharmacies

from their network and granting aggrieved pharmacies and residents a remedy. See

Marshall v. Miller, 302 N.C. 539, 546, 276 S.E.2d 397, 402 (1981) (characterizing a

statute that “encourages private enforcement” and “provides a remedy for aggrieved

parties” as remedial). “A remedial statute must be construed broadly in light of the evils

sought to be eliminated, the remedies intended to be applied, and the objective to be

attained.” O & M Indus. v. Smith Eng'g Co., 360 N.C. 263, 268, 624 S.E.2d 345, 348

(2006) (cleaned up). If BCBSNC’s construction were adopted, BCBSNC could exclude

pharmacies at will, so long as it used a network agreement to do so.

Third, the legislature understood that insurers offer health benefit plans with

networks of health care providers. Indeed, in other parts of Chapter 58, the legislature

addressed how general provisions applied to plans with network providers. See N.C.

Gen. Stat. §§ 58-3-200(d), 58-50-30. Section 58-51-37 assumes that some entities

offering health benefit plans use networks for pharmaceutical benefits and imposes

certain requirements based on that assumption. For example, §§ 58-51-37(c)(1) and

(c)(2) anticipate that pharmacies will participate in health benefit plans according to the

terms offered by the insurer (i.e., participate in the network), and prohibit insurers from

excluding a pharmacy as a contract provider.

“It is a fundamental canon of statutory construction that the words of a statute

must be read in their context and with a view to their place in the overall statutory

scheme.” See Sturgeon v. Frost, 577, U.S. 424, 136 S. Ct. 1061, 1070 (2016). When

read in the context of the entire statute, § 58-51-37(c) applies to BCBSNC’s network

relationship with pharmacies.

B. There are no disputed questions of material fact on the POC claims

There are not many cases interpreting Chapter 58. See Doc. 78 at 5 n.1. No court

has clearly set forth the elements of “a violation of this section” or defined when a

pharmacy is “aggrieved” by such a violation.

Senderra asserts that BCBSNC violated three subsections of § 58-51-37(c). A

cause of action based on any of these subsections requires Senderra to show that it was

“aggrieved” by the violation. N.C. Gen. Stat. § 58-51-37(h).

1. Prohibiting or limiting residents from selecting their pharmacy of choice

Section 58-51-37(c)(1) provides that “the terms of a health benefit plan shall not

prohibit or limit a resident of this State . . . from selecting a pharmacy of his or her choice

when the pharmacy has agreed to participate in the health benefit plan according to the

terms offered by the insurer.” § 58-51-37(c)(1) (immaterial provisions deleted for

clarity). The Court construes the statute to require BCBSNC to offer pharmacies a fair

opportunity to participate, which means that it must make its terms of participation

available to all interested providers.

To establish a violation of this subsection, Senderra must show that BCBSNC’s

health benefit plans prohibited or limited residents of this State from selecting Senderra

as their pharmacy of choice between October 15, 2018, and July 1, 2019, that Senderra

agreed to meet, and did meet, the terms for participation offered by BCBSNC, and that

Senderra was aggrieved by BCBSNC’s actions. N.C. Gen. Stat. §§ 58-51-37(c)(1), (h).

It is undisputed that BCBSNC prohibited or limited residents of North Carolina

from selecting Senderra as their pharmacy of choice from October 15, 2018, through July

1, 2019, in the sense that any resident who used Senderra paid more out of pocket for

their prescription. However, all the evidence shows that BCBSNC made its terms

available to Senderra through mailings and its website, that Senderra knew BCBSNC

required an in-state dispensary, and that Senderra did not have an operational in-state

dispensing pharmacy when it applied to participate in the new network in June or when

the old contract expired. Thus, Senderra did not meet a clearly communicated term

required by BCBSNC before it could participate in the specialty pharmacy network.

Given that Senderra did not meet the terms offered by BCBSNC, it cannot show

that BCBSNC violated § 58-51-37(c)(1) when it limited its plan beneficiaries from

obtaining prescriptions from Senderra. In the absence of a disputed question of material

fact, BCBSNC is entitled to summary judgment on this claim.

Senderra contends that BCBSNC did not clearly state its terms and requirements

because it did not tell Senderra until sometime in October 2018 that Senderra needed to

complete BCBSNC’s credentialing process to satisfy the in-state dispensary requirement.

Even assuming this is so, Senderra was not aggrieved by that purported violation because

Senderra had not met the preliminary requirement of having a permitted in-state

dispensing pharmacy. Senderra similarly contends that BCBSNC did not clearly state its

terms and requirements because it did not tell Senderra it could satisfy the dispensing

requirement through a corporate affiliate. But satisfying the dispensary requirement

through a corporate affiliate was merely one way in which pharmacies with qualifying

affiliations could satisfy the requirement— it was not an exception. Doc. 137-7 at 5–6.

And BCBSNC had no obligation to give Senderra advice about corporate structures

available under state law. The statute requires BCBSNC to make its terms available to

interested pharmacies, not walk the pharmacy through how to meet those terms.

Next, Senderra contends that BCBSNC allowed other specialty pharmacies to

participate in the network even though they did not meet all the new terms. Specifically,

it is undisputed that BCBSNC admitted two pharmacies, Avita and Long’s, into the

network even though their in-state dispensing locations did not have the URAC

credential. Doc. 36-3 at 3; Doc. 48 at ¶ 41. But this does not matter, as Senderra did not

have a permitted in-state dispensary. Assuming BCBSNC violated the statute by

inadvertently offering different terms to different pharmacies, Senderra was not

aggrieved by that violation since it did not meet the basic term imposed on all pharmacies

and met by every pharmacy admitted into the network.

Finally, Senderra contends that BCBSNC enforced its contractual provisions about

entry dates differently as to Senderra. As to this point, Senderra relies on the fact that

some pharmacies signed their network participation agreements after October 1, 2018.

See Doc. 137-2 at 5–6. But the agreement merely requires pharmacies to “submit all

necessary paperwork that BCBSNC requires by 10/1 for a 1/1 entry date, and by 4/1 for a

7/1 entry date.” Doc. 18 at p. 14 ¶ 2.14. It says nothing about a deadline for executing

the participation agreement, see Doc. 137-2 at 6, nor is there any evidence that any

pharmacies who executed their agreements after October 1, 2018, had not timely met the

dispensing requirement.

2. Denying pharmacies the opportunity to participate as contract providers

Section 58-51-37(c)(2) provides that “the terms of a health benefit plan shall not

deny a pharmacy the opportunity to participate as a contract provider under a health

benefit plan if the pharmacy agrees to provide pharmacy services that meet the terms and

requirements of the insurer.” § 58-51-37(c)(2) (immaterial provisions deleted for clarity).

To establish a violation of this subsection, Senderra must show that BCBSNC’s health

benefit plan denied Senderra a fair opportunity to participate as a contract provider under

its plan between October 15, 2018, and July 1, 2019, that Senderra agreed to meet, and

did meet, the terms for participation offered by BCBSNC, and that Senderra was

aggrieved by BCBSNC’s decision. N.C. Gen. Stat. §§ 58-51-37(c)(2), (h).

BCBSNC is entitled to summary judgment on Senderra’s claim based on this

subsection for the same reason its § 58-51-37(c)(1) claim fails: Senderra did not meet

BCBSNC’s terms and requirements as of October 15, 2018, because it did not have a

permitted in-state dispensary. That term was clearly communicated back in April 2018.

The evidence was undisputed that the other terms were available on referenced websites

and materials. Moreover, Senderra was not aggrieved by BCBSNC’s alleged violations

based on how BCBSNC communicated other terms and requirements for participation to

Senderra or how BCBSNC applied other terms and requirements, given Senderra’s

undisputed failure to have an in-state dispensing location which could lawfully operate by

the deadlines imposed by BCBSNC and given that all pharmacies admitted into the

network met this basic requirement.

3. Imposing a monetary advantage or penalty upon pharmacies

Section 58-51-37(c)(4) provides that “the terms of a health benefit plan shall not

impose a monetary advantage or penalty under a health benefit plan that would affect a

beneficiary’s choice of pharmacy.” § 58-51-37(c)(4). To establish a violation of this

subsection, Senderra must show that BCBSNC imposed a monetary advantage or penalty

that would affect a beneficiary’s choice of pharmacy and that Senderra was aggrieved by

the advantage or penalty. N.C. Gen. Stat. §§ 58-51-37(c)(4), (h).

BCBSNC is entitled to summary judgment on Senderra’s claim based on this

subsection for the same reason its other claims under § 58-51-37(c) fail: Senderra cannot

show it was aggrieved by any of BCBSNC’s alleged violations.

Senderra contends that BCBSNC imposed a monetary advantage on Avita and

Long’s when it allowed them to participate in the network even though neither pharmacy

had the URAC credential by the June 8, 2018, deadline and allowed them to remain in-

network beyond the 30-day cure period without the URAC credential. It is undisputed

that the pharmacies failed to obtain the URAC credential by the June deadline or within

the 30-day cure period. See Doc. 137-7 at 3. But, as with its other claims, because

Senderra had not satisfied the dispensing requirement, it was not aggrieved by the fact

that BCBSNC effectively excused two pharmacies who did meet that requirement from

complying with an additional URAC credentialing requirement.

Finally, Senderra contends that the requirement that pharmacies have an in-state

dispensing location was itself a “monetary advantage or penalty” and that BCBSNC

violated § 58-51-37(c)(4) by imposing this requirement. But the statute explicitly gives

insurers the discretion to determine the terms and requirements that pharmacies must

meet to serve as contract providers under their health benefit plans. N.C. Gen. Stat. § 58-

51-37(c)(1), (2). It does not require that the terms and requirements benefit beneficiaries

or participants in any particular way, nor does it impose any sort of objective

reasonableness requirement.

4. BCBSNC is entitled to summary judgment on the POC claims

Senderra has not shown that there are disputed questions of material fact that, if

decided in its favor, would support a judgment in Senderra’s favor. The undisputed facts

show that Senderra did not have a pharmacy in North Carolina by the required date, that

it had not met a basic term imposed by BCBSNC for network participation, that all

pharmacies admitted into the new network met this requirement, and that, as to this basic

term, Senderra was not treated differently than other specialty pharmacies. BCBSNC is

entitled to summary judgment on this claim.

II. BCBSNC is entitled to summary judgment on the fraud claims

To state a claim for fraud, the plaintiff must show (1) a false representation or

concealment of a material fact, (2) that is reasonably calculated to deceive, (3) is made

with the intent to deceive and (4) does, in fact, deceive, (5) resulting in damage to the

injured party. Forbis v. Neal, 361 N.C. 519, 526–27, 649 S.E.2d 382, 387 (2007). The

plaintiff’s reliance on the alleged concealments or misrepresentations must be reasonable.

Pearson v. Gardere Wynne Sewell LLP, 814 F. Supp. 2d 592, 605 (M.D.N.C. 2011).

Senderra’s evidence is insufficient to establish disputed questions of material fact as to

several of these elements, but the Court will limit its discussion to the reasonable reliance

and damages requirements.

Senderra contends that BCBSNC concealed or misrepresented material facts about

its dispensing requirement by telling Senderra that the only requirement it had not met

was having an in-state dispensing location and failing to mention that Senderra had to

obtain the URAC credential and Medicare certification for its North Carolina dispensary.

Senderra further contends that it reasonably relied on the alleged misrepresentations

because information clarifying the dispensing requirement was not readily accessible to

Senderra. As discussed supra, Senderra understood that BCBSNC had a credentialing

requirement: It submitted a credentialing application when it joined the network, Doc. 49

at ¶ 17, and a recredentialing application in December 2016, Doc. 55-1 at 3, which

included the URAC credential. Information clarifying the credentialing process was also

available on BCBSNC’s website at all relevant times. Doc. 88 at ¶¶ 6–15. Many other

pharmacies timely met the credentialing requirements and were admitted into the new

network. See, e.g., 48 at ¶ 11 (noting that four “newly credentialed” pharmacies

submitted the verification form to participate and that 24 pharmacies satisfied the

requirements and became participating providers in the new network). Senderra has not

offered any evidence that anyone at BCBSNC ever told Senderra that it did not have to

meet the URAC credentialing requirement specifically or other credentialing

requirements generally, nor is there any evidence that anyone at Senderra ever asked

BCBSNC about credentialing, certification, or the URAC requirement. While a party

who chooses to speak “must make a full and fair disclosure as to the matters he

discuss[ed],” Ragsdale v. Kennedy, 286 N.C. 130, 139, 209 S.E.2d 494, 501 (1974),

BCBSNC was not required to read its requirements verbatim to Senderra.

Even if Senderra’s reliance on the alleged misrepresentations was reasonable, it

has not introduced any evidence showing that its reliance resulted in any cognizable

harm. Senderra had not obtained the Board of Pharmacy permit, as required by law, N.C.

Gen. Stat. §§ 90-85.21(a), 90-85.3(m), 90-85.3(q), by October 15, 2018—the date the

termination of the contract was effective. Senderra obtained the URAC credential—the

requirement allegedly falsely misrepresented—in March 2019 and reentered the network

at the earliest entry date possible after its termination. See Doc. 18 at p. 149 2.14. Thus,

any false statements or omissions about the URAC credential requirement did not extend

the length Senderra was excluded from the network.

Senderra has not presented evidence sufficient to raise disputed questions of

material fact as to the elements of a fraud claim. BCBSNC’s motion for summary

judgment will be granted and this claim will be dismissed.

III. BCBSNC is entitled to summary judgment on the Chapter 75 claims

Senderra relies on its fraud and pharmacy of choice claims as the basis for its

Chapter 75 claims. Its Chapter 75 claims fail for the same reasons the fraud and Chapter

58 claims fail. See AMEC Env. & Infrastructure, Inc. v. Structural Assocs., Inc., No.

7:13-CV-21-BO, 2015 WL 1000766, at *8 (E.D.N.C. Mar. 5, 2015) (granting summary

judgment for UDTPA claim, which was based on fraud, where the evidence underlying

the fraud claim was insufficient).

It is ORDERED that the defendant’s motion for summary judgment, Doc. 127, is

GRANTED and the defendant’s motion to exclude expert report and testimony, Doc.

133, is DENIED as moot. Judgment will be entered as time permits.

This the 5th day of April, 2021.

Lh □□ oe

UNITED STATES DIS JUDGE

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