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Saltzman v. Independence Blue Cross

June 5, 2009

MARK SALTZMAN ET AL., PLAINTIFFS,
v.
INDEPENDENCE BLUE CROSS ET AL., DEFENDANTS.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: MOTION TO DISMISS AMENDED COMPLAINT

Plaintiffs Mark Saltzman and Jan Meister initiated the current civil action against Defendants Independence Blue Cross ("IBC"), QCC Insurance Company ("QCC"), and Keystone Health Plan East, Inc. ("KHPE"), alleging violations of the Employee Retirement Income Security Act ("ERISA") and several state law claims. Presently before this Court is Defendants' Motion to Dismiss Plaintiffs' Amended Complaint (Doc. 20).

After an extensive review of the Plan documents, considering the Third Circuit's ERISA jurisprudence and the arguments of counsel, this Court concludes that the ERISA claim must be dismissed. Plaintiffs seek to recover benefits, in the form of prescription drug copayment charges (Am. Compl. ¶ 1), which would require a ruling that Defendants' setting the co-pay required for a specific drug, in this case Plavix, was improper under the terms of the Plan. Specifically, Plaintiffs assert that because the Plan documents state that Defendants will offer "comprehensive prescription drug coverage" at the "highest level of coverage," Defendants have breached their commitment in the Plan with regard to Plavix by charging the highest co-pay under the Plan.

The Court concludes that ERISA does not authorize a district court to award benefits by determining Defendants violated the Plan by requiring the highest level of co-pay for a particular drug. The Plan documents submitted on the Rule 12 Motion clearly give Defendants the right to determine what the co-pay will be for providing a drug such as Plavix, and the decided cases do not allow a district court to overrule that decision and award benefits to Plaintiffs. Plaintiffs have not cited any cases establishing their right to recovery.

As to Plaintiffs' common law counts, this Court will accede to Plaintiffs' request and dismiss those without prejudice for further proceedings in state court.

I. Background and Procedural History

A. Factual Background

The allegations in Plaintiffs' Amended Complaint concern their benefits as subscribers to medical insurance plans sold by IBC through its subsidiaries, QCC and KHPE. In accordance with the applicable standard of review, Plaintiffs' allegations in the Amended Complaint (Doc. 14) will be accepted as true for purposes of deciding Defendants' Motion.

IBC "markets, sells, and operates" health insurance and prescription drug plans throughout several Pennsylvania counties in the Philadelphia metropolitan area. (Am. Compl. ¶¶ 12-13). IBC offers these health insurance benefits and prescription drug benefits through separate plans. First, as to the health benefits, IBC primarily offers two health plans: the Personal Choice plan and the Keystone plan. (Am. Compl. ¶¶ 17-25). As an optional supplement to those health plans, IBC also "markets, sells, and operates" two prescription drug plans: the Standard Drug Program and the Select Drug Program. (Am. Compl. ¶¶ 26-28).

Plaintiffs (and the proposed class, which has not yet been certified) are subscribers to the Select Drug Program, which is the only prescription drug plan at issue in this litigation. (Am. Compl. ¶¶ 27-28). Plaintiff Jan Meister is an employee of Stanley Creations, Inc., which contracted with IBC, through QCC, to provide the Personal Choice health plan and the Select Drug Program for its employees. (Am. Compl. ¶¶ 66-70). Plaintiff Mark Saltzman was an employee of Gary Barbera Dodgeland from May 2005 until March 2007; Barbera contracted with IBC, through KHPE, to provide the Keystone Health Plan and the Select Drug Program to its employees. (Am. Compl. ¶¶ 81-86).*fn1

Plaintiffs focus their claims on the Select Drug Program's formulary.*fn2 The Formulary for the Select Drug Program provides that:

In an effort to continue our commitment to provide you with comprehensive prescription drug coverage, a formulary feature is included in your prescription drug benefit. A formulary is a list of select FDA-approved, prescription medications reviewed by the Futurescripts(r) Pharmacy and Therapeutics Committee. These prescription medications have been selected for their reported medical effectiveness, safety, and value while providing you with the highest level of coverage under your prescription program.

(Am. Compl. ¶¶ 74, 86). The formulary's relationship to the prescription drug benefits will be more thoroughly discussed below. However, it is important to note here that Plaintiffs' prescription drug coverage, through the Select Drug Program Formulary, places all available prescription drugs into three different "tiers" for purposes of assigning a copayment ("co-pay") amount to be paid by the insured. (Am. Compl. ¶ 78). "A copayment is a specified dollar amount or a percentage of a contracted fee amount which IBC requires its subscribers to pay for certain medical services, including prescription drug purchases, pursuant to the IBC contracts." (Am. Compl. ¶ 77). The formulary assigns prescription drugs into the following tiers for purposes of the co-pay:

* Tier 1-individuals pay the lowest copayment amount for generic drugs, whether listed on the formulary or not.

* Tier 2-individuals pay a greater copayment for brand name drugs that are listed in the formulary.

* Tier 3-individuals pay the highest copayment for brand name drugs that are not listed in the formulary.

(Am. Compl. ¶ 78). The Rider then establishes the copayments for Meister and Saltzman, which are set at $10 for Tier 1 drugs, $20 for Tier 2 drugs, and $35 for Tier 3 drugs. (Am. Compl. ¶¶ 80, 87). The exclusive method of assigning brand name drugs to a tier and a co-pay is through the formulary.

In bringing this lawsuit, Plaintiffs take issue with IBC's handling of the prescription drug Plavix in the context of this formulary. Plavix is an antiplatelet drug that is allegedly the most effective and successful antiplatelet drug on the market; the drug is particularly useful for individuals with a high risk of heart attack, stroke, and serious circulation problems. (Am. Compl. ¶¶ 88-96). From November 1997 until January 1, 2007, Plavix was listed as a Tier 2 drug since there was no generic equivalent on the market. (Am. Compl. ¶ 124).

Around August 2006, however, a generic version of Plavix was put on the market. (Am. Compl. ¶ 125). In response and conforming with standard practice, IBC reclassified Plavix as a Tier 3 drug and placed the generic in Tier 1, effective January 1, 2007. (Am. Compl. ¶¶ 126-131). On August 31, 2006, after the generic company produced a six-month supply of the Plavix generic, Judge Sidney Stein of the District Court for the Southern District of New York entered an order instituting a preliminary injunction in favor of Sanofi-Aventis, the owner of the Plavix patent, prohibiting the production of the generic due to patent infringement; a later order, entered on June 19, 2007, granted a permanent injunction. (Am. Compl. ¶¶ 132-138); Sanofi-Synthelabo v. Apotex, Inc., 488 F. Supp. 2d 317 (S.D.N.Y. 2006) (granting motion for preliminary injunction); Sanofi-Synthelabo v. Apotex, Inc., 492 F. Supp. 2d 353 (S.D.N.Y. 2007) (granting requested permanent injunction). Despite this change precluding the availability of the Plavix generic, IBC did not change its classification of Plavix, and Plavix is still maintained as a Tier 3 prescription drug. (Am. Compl. ¶¶ 139-140).

Both Saltzman and Meister take Plavix for their medical conditions. Saltzman has been taking Plavix from February 2007 to the present. (Am. Compl. ¶ 141). Saltzman was covered by IBC's prescription plan from when he started taking Plavix until March 2008, when his COBRA coverage lapsed a year after he ended employment with Gary Barbera Dodgeland. (Am. Compl. ¶¶ 142-144). Meister started taking Plavix in May 2008 and continues taking the medication to this day. (Am. Compl. ¶ 145). Both Saltzman and Meister paid the Tier 3 copayment for all of their purchases of Plavix due to the January 1, 2007 reclassification of the drug. (Am. Compl. ¶¶ 144, 146).

On the basis of these allegations, Plaintiffs contend that the classification of Plavix as a Tier 3 drug violates the terms of their insurance plans. (Am. Compl. ¶ 147). In particular, Plaintiffs bring three claims against Defendants. First, in Count I, Plaintiffs bring a claim under § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B), arguing that classifying Plavix as a Tier 3 drug, rather than a Tier 2 drug, amounts to a denial of benefits due under the "terms" of the "plan." (Am. Compl. ¶ 179). Next, in Count II, Plaintiffs contend, on behalf of members of a proposed class who contracted with IBC directly instead of through an employer, that the alleged acts amount to a breach of contract and a breach of the implied covenant of good faith and fair dealing. (Am. Compl. ¶¶ 184-189). Finally, in Count III, again on behalf of members of the proposed class who contracted with IBC directly, Plaintiffs argue that the acts amount to unjust enrichment. (Am. Compl. ¶¶ 190-196). Plaintiffs seek monetary, declaratory, and equitable relief.

B. Procedural History

On August 13, 2008, Mark Saltzman filed the initial complaint in this civil action against IBC and QCC. (Doc. 1). On October 10, 2008, Defendants IBC and QCC filed a Motion to Dismiss the Complaint. (Doc. 11). In response, Mark Saltzman, now joined by Jan Meister, filed the current Amended Complaint on November 25, 2008. (Doc. 14). Defendants again filed a Motion to Dismiss the Amended Complaint on January 14, 2009. (Doc. 20). After Plaintiffs filed their Memorandum in Opposition to the Motion (Doc. 22), Defendants filed their Reply brief (Doc. 22). On April 17, 2009, this Court held oral argument on the Motion. (Doc. 32-34). After several issues were raised at the oral argument that were not discussed in the pre-argument briefing, both Plaintiffs and Defendants, at the Court's request, submitted post-argument briefs to the Court. (Doc. 36, 37, 39, 41).

II. Jurisdiction and Legal Standard

A. Jurisdiction

This Court has jurisdiction over the ERISA claim under 29 U.S.C. § 1132(e)(1) ("State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this section."), and 28 U.S.C. § 1331. This Court also has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

B. Legal Standard

When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985).

A valid complaint requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Iqbal clarified that the Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which required a heightened degree of fact pleading in an antitrust case, "expounded the pleading standard for 'all civil actions.'" 129 S.Ct. at 1953.

The Court in Iqbal explained that, although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, pleadings must include factual allegations to support the legal claims asserted. Id. at 1949, 1953. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555); see also Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) ("We caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." (citing Twombly, 550 U.S. at 556 n.3)). Accordingly, to survive a motion to dismiss, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556).

III. Party Contentions

A. Defendants' Motion to Dismiss

In their Motion, Defendants challenge the legal sufficiency of each of Plaintiffs' claims on several grounds. First, as to the ERISA claim, Defendants contend that, because the plan challenged by Plaintiffs is a welfare plan, ERISA only provides a remedy to recover benefits due under the very terms of the plan; where Plaintiffs are unable to rely on specific terms codified in the plan, ERISA does not provide a cause of action. Defendants argue that the terms of Plaintiffs' prescription drug plans confer IBC with the discretion to place Plavix in Tier 3 and that Plaintiffs were compensated according to the terms in the formulary that list Plavix at the Tier 3 co-pay. And to the extent that Plaintiffs seek to move Plavix into a different tier and thereby change the terms of the plan, Defendants argue that such a claim is not cognizable under § 502(a)(1)(B) of ERISA.

Next, Defendants contend that Plaintiffs' state law claims should be dismissed, as Plaintiffs do not have standing themselves to pursue the claim under the preemption provision of § 514(a) of ERISA, 29 U.S.C. § 1144(a). Third, Defendants argue that Saltzman lacks standing to pursue claims for equitable or declaratory relief since he no longer receives benefits under the IBC plan. Finally, Defendants argue that QCC should be dismissed if the case is not otherwise dismissed in its entirety because Meister failed to exhaust his administrative remedies and because Saltzman did not receive his prescription drug benefits from QCC. As will be seen below, the Court need not reach these issues.

B. Plaintiffs' Opposition

In response, Plaintiffs first admit that Saltzman does not have standing to pursue his claims for declaratory and injunctive relief and agree to withdraw those claims.

As to Defendants' argument on the ERISA claim, that Plaintiffs were granted all of the benefits provided in the terms of the plan, Plaintiffs point to prefatory language in the prescription drug formulary, which states that IBC will provide "comprehensive prescription drug coverage" at the "highest level of coverage." Plaintiffs contend that IBC's classification of Plavix as a Tier 3 drug violates this language given the efficacy and uniqueness of Plavix. Plaintiffs also argue that Defendants breached an implied covenant of good faith and fair dealing by delaying the announcement of the Plavix generic's availability for three months after it was released and not disclosing that the generic would not be available after the six month supply was exhausted.

As to Defendants' argument concerning Plaintiffs' standing to bring the state law claims, Plaintiffs argue that the issue is more appropriately addressed at the class certification stage and, even if the issue is addressed now, Plaintiffs do have standing to bring state law claims on behalf of the class under modern case law. Next, concerning Defendants' arguments that Meister has not exhausted his administrative remedies, Plaintiffs argue that the futility exception to the exhaustion requirement applies here since Defendants have already denied Saltzman's request and Defendants have made clear that they do not intend to move Plavix to Tier 2. In the alternative, Plaintiffs contend that Saltzman may represent class members who do have claims against QCC, which would prevent dismissal of QCC from the case.

C. Defendants' Reply

In reply, Defendants argue that the prefatory language that Plaintiffs rely on for their ERISA claim is too general to provide any specific benefits and, even if it did provide benefits, is overridden by the specific provisions set out in the formulary drug listing. Concerning Meister's failure to exhaust his administrative remedies, Defendants argue that exhaustion is not futile. Finally, as to Plaintiffs' standing to bring state law claims on behalf of the potential class members, Defendants argue that the issue of standing must be analyzed on a claim-by-claim basis and that, where the named plaintiffs do not have standing on their own to assert a claim, the claim must be dismissed.

D. Oral Argument and Post-Argument Briefing

At oral argument and in the post-argument briefing, Plaintiffs respond to Defendants' arguments concerning the ERISA claim by relying on two additional points. First, Plaintiffs point to the fact that the co-pay tiers are designed to be "incentive-driven," whereby the lower co-pay for a generic incentivizes individuals to purchase a generic drug, rather than a brand name drug, where the generic is available. Plaintiffs argue that since no generic is available for Plavix, IBC violated Plaintiffs' rights under ERISA when it did not move Plavix back to Tier 2 in accordance with this system. Plaintiffs also rely on the definition of "Drug Formulary" in Meister's plan, which states that the formulary is "intended to include a sufficient range of medicines to enable Physicians, dentists, and, as appropriate, other practitioners to prescribe all Medically Appropriate/Medically Necessary treatment of a Covered Person's condition." (App. 745); (App. 752). Plaintiffs contend that since Plavix is such an effective drug, failure to include it on the formulary violates this general definition. Finally, Plaintiffs have also argued that IBC did not properly amend the formulary when they moved Plavix to Tier 3.

IV. Discussion on ERISA Claim

Plaintiffs' first and primary claim is one of the civil enforcement statutes of ERISA, 29 U.S.C. § 1132(a)(1)(B), also referred to as § 502(a)(1)(B) of ERISA. This section provides that "[a] civil action may be brought (1) by a participant or beneficiary . . . to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). As is apparent from the language of the statute, a plaintiff who brings a claim under § "502(a)(1)(B) must demonstrate that the benefits are actually 'due'; that is, he or she must have a right to benefits that is legally enforceable against the plan." Hooven v. Exxon Mobil Corp., 465 F.3d 566, 574 (3d Cir. 2006).*fn3 Benefits are only due once they become "vested." Id.

"Although it is a 'comprehensive and reticulated statute,' Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 361 (1980), ERISA does not set out the appropriate standard of review for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations." Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 108-09 (1989). Therefore, courts have established certain principles in determining what standard of review applies depending on the circumstances. As the Third Circuit recognized in Bill Gray Enters., Inc. Employee Health and Welfare Plan v. Gourley, 248 F.3d 206, 216 (3d Cir. 2001), courts must conduct a de novo review of a company's denial of benefits unless the benefit plan endows the administrator or the fiduciary with discretionary authority to construe terms of the plan, in which case courts must then review a denial of benefits under an arbitrary and capricious standard. See also Metro. Life Ins. Co. v. Glenn, 128 S.Ct. 2343, 2347-48 (2008) (summarizing the standards of review). However, we must first examine whether the terms of the plan document are ambiguous. If the terms are unambiguous, then any actions taken by the plan administrator inconsistent with the terms of the document are arbitrary. But actions reasonably consistent with unambiguous plan language are not arbitrary. If the reviewing court determines the terms of a plan document are ambiguous, it must take the additional step and analyze whether the plan administrator's interpretation of the document is reasonable.

Bill Gray, 248 F.3d at 218 (holding that, where defendant's interpretation of plan was consistent with unambiguous terms, defendant did not violate the terms of the plan). The threshold issue, then, is whether the terms of the plan are ambiguous. If they are unambiguous and Defendants' interpretation is consistent with the unambiguous terms, then Plaintiffs' § 502(a)(1)(B) claim must fail.

A. Determining What Documents Are Part of the Plan

Prior to considering whether Plaintiffs are entitled to Plavix under the "terms," this Court must first identify which documents, and therefore what "terms," are part of the "plan."*fn4 This issue is an important one for claims under § 502(a)(1)(B) of ERISA. Where a plaintiff brings such a claim, it must be based on "terms" codified in "plan" documents.

ERISA's framework ensures that employee benefit plans be governed by written documents and summary plan descriptions, which are the statutorily established means of informing participants and beneficiaries of the terms of their plan and its benefits. Accordingly, any [plaintiff]'s right to [] medical benefits under a plan can only be found if it is established by the terms of the ERISA-governed employee benefit plan. A court must examine the plan documents. Extra-ERISA commitments . . . must be found in the plan documents and stated in clear and express language.

In re Unisys Corp. Retiree Med. Benefit "ERISA" Litig., 58 F.3d 896, 902 (3d Cir. 1995) (internal citations omitted). "If the plain language of the document is clear, courts must not look to other evidence. [Only] if the plain language leads to two reasonable interpretations [may] courts [] look to extrinsic evidence to resolve any ambiguities in the plan document." Bill Gray, 248 F.3d at 218.

In their Response to the Motion to Dismiss, Plaintiffs contend that the benefits they seek to enforce (i.e., Plavix at a lower copayment) arise from the "terms" of the introductory paragraph of the formulary:

In an effort to continue our commitment to provide you with comprehensive prescription drug coverage, a formulary feature is included in your prescription drug benefit. A formulary is a list of select FDA-approved, prescription medications reviewed by the Futurescripts(r) Pharmacy and Therapeutics Committee. These prescription medications have been selected for their reported medical effectiveness, safety, and value while providing you with the highest level of coverage under your prescription program. (Am. Compl. ¶¶ 74, 86) (emphasis added). Plaintiffs argue that the emphasized portions of this paragraph are the "terms" that establish a commitment on the part of IBC, under ERISA, to provide Plavix at the Tier 2 copayment due to the drug's unique characteristics and effectiveness, in the absence of a generic equivalent. They contend that Plavix must be listed as a Tier 2 drug in order for IBC to provide "comprehensive prescription drug coverage" and provide the "highest level of coverage." As they acknowledged during oral argument, Plaintiffs' reliance on the prefatory language in the formulary is based on the premise that the introductory paragraph of the formulary is part of the "terms" of the "plan." However, Plaintiffs contend that the drug listing, which places the drugs into different tiers and classifies Plavix as a Tier 3 drug, is not part of the "terms" and is instead only IBC's administration of the plan. See (Pls.' Mem. In Opp. at 14); (Oral Arg. 8:23-9:3); (Oral Arg. 20:7-21:21).

At oral argument and in subsequent briefing, Plaintiffs also rely on certain parts of the Prescription Drug Rider. One of the principles they rely on is the incentive-based system of the copayments. Plaintiffs point to the fact that the three-tier copayment system is designed such that the brand name drug first comes onto the formulary in the middle tier when there is no generic available, and then, when the generic becomes available, "the incentive is to get the doctors to prescribe[,] and patients to accept[,] the generic [by assigning the generic a] lower co-pay" and the brand name drug a higher co-pay. (Oral Arg. 28:2-16); (Oral Arg. 32:7-23); see also (Am. Compl. ¶ 79). However, Plaintiffs have not identified any language in the plan documents that specifically establishes this principle, and have only attempted to infer it from the plan's co-pay assignment. Also, Plaintiffs rely on the definition of "Drug Formulary" in the Meister Prescription Drug Rider, which states that the formulary is "intended to include a sufficient range of medicines to enable Physicians, dentists, and, as appropriate, other practitioners to prescribe all Medically Appropriate/Medically Necessary treatment of a Covered Person's condition." (App. 752). Plaintiffs argue that the drug formulary does not include all "Medically Appropriate/Medically Necessary" drugs where Plavix, being such a uniquely effective drug, is not on the list and is thus not a Tier 2 "brand name formulary" drug. (Oral Arg. 24:19-25:15).

Defendants, in response, argue that the formulary in its entirety is a plan document and that the formulary drug listing is therefore part of the "terms" of the "plan." Defendants contend that the drug listing is the more specific provision of the plan, as opposed to the prefatory paragraph of the formulary or the one definition relied on by Plaintiffs, and, using established principles of contract interpretation, the more specific provisions of the formulary drug listing should overridde the more general provisions. As to the principle of an "incentive-driven" formulary, Defendants argue that this principle is not part of the "terms" of the "plan," and even if it was, the drug listing is again a more specific provision that overrides the general nature of the incentive-driven scheme.

Neither party has offered any caselaw to support their respective position on which documents are part of the "plan." Prior to deciding which documents should be included, this Court will first summarize the documents that are at issue.

1. Summary of the Documents at Issue

a. Saltzman Plan

When he was insured, Saltzman was a subscriber to insurance plans from both KHPE and QCC. The QCC plan, however, is not at issue here since it did not offer prescription drug benefits. (App. 224, 227) ("Except as specifically provided in this Contract, no benefits will be provided for services, supplies or charges . . . [f]or Prescription Drugs"); (App. 519, 522) (same).

Saltzman's plan through KHPE, however, did provide the drug benefits at issue.*fn5

Saltzman's plan has two relevant parts: (a) what this Court will refer to as the "parent contract" and (b) the Prescription Drug Rider.

SALTZMAN PARENT CONTRACT PROVISIONS

Benefits Subject to Co-pay

The parent contract provisions state that prescription drug coverage is an option for Saltzman's plan. However, it also specifically notes that the insurer may set a higher co-pay for certain drugs.

* "Groups may choose to provide additional Prescription Drug coverage for Prescription Drugs for use when a Member is not an inpatient. The Benefits and Copayments will vary depending upon the program chosen. That coverage may also include a Formulary. If so, Members will be given a copy of the Formulary, and the coverage may exclude, or require the Members to pay higher Copayments for, certain Prescription Drugs. To obtain a copy of the Formulary, the Member should call Member Services at the phone number shown on the ID card." (App. 69) (emphasis added); (App. 298).

IBC's Discretion to Amend

The parent contract also includes several provisions that establish the insurer's ability and discretion to amend the terms of the plan:

* "[KHPE] may amend this Contract with respect to any matter, including required payments, by mailing a postage prepaid notice of the amendments to the Group at its address of record with Keystone, at least thirty (30) days before the effective date of the amendment. The Group's concurrence with such amendments shall be established by continuation of payment for coverage hereunder after the effective date of the amendment." (App. 62) (emphasis added); (App. 269).

* "[KHPE] may, at its option, amend this Contract at least annually. If the Group does not agree to such change(s), the Group must notify [KHPE] in writing, within thirty (30) days, and the Group may terminate this Contract at the end of the then current Contract term." (App. 70) (emphasis added); (App. 271).

* "[T]his Contract shall be subject to amendment, modification, or termination in accordance with any provision hereof or by mutual agreement between [KHPE] and the Group without the consent or concurrence of the Members. By electing [KHPE] or accepting [KHPE] Benefits, all Members legally capable of contracting, and the legal representatives of all Members incapable of ...


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