District Court Holds Putative Class's Discrimination Case Pertaining to GLP-1s Implausible 

The U.S. District Court for the District of Maine dismissed a putative class action against Elevance Health Inc., f/k/a Anthem, Inc. (Elevance), asserting a claim of disability discrimination related to non-coverage of weight loss drugs such as GLP-1s. Holland v. Elevance Health Inc. f/k/a Anthem, Inc., No. 2:24-cv-00332-LEW (D. Me. Apr. 9, 2025). The named plaintiff alleged that obesity is a disability and her health plan unlawfully discriminated against her and the putative class because the benefit design of the plan excludes coverage for weight loss medications in violation of the non-discrimination provision, section 1557, of the Patient Protection and Affordable Care Act of 2010 (ACA). We have previously written about this suit here. 

The court granted Elevance's motion to dismiss, which argued in relevant part that the claim fails because the exclusion for weight loss drugs "applies equally to those who would fall within Plaintiff's (incorrect) definition of disabled and those who do not," and so therefore, even assuming the plaintiff's definition of disabled as correct, the plaintiff "was not denied access to a benefit that the Plan offers." 

The court also rejected the idea that the class as a whole could claim obesity as a disability, citing case law for the principle that "[w]hether a health condition like obesity results in a disability is not a formulaic inquiry based on a mere diagnosis and prescription," but "an individualized inquiry." Ultimately, though, the court based its decision on the fact that the plaintiff's discrimination allegations were "conclusory and conjectural," most fundamentally because the complaint did not allege that Anthem "has ever regarded her (let alone all obese persons) to be disabled." The court also pointed to the fact that the employer had the choice whether or not to include weight loss drugs in the plan, so discrimination allegations against Anthem failed. The court also noted that Anthem's exclusion for weight loss drugs is consistent with a similar exclusion under Medicare Part D.

The court declined to address the merits of the plaintiff's allegation that while there is an exception to the exclusion in the plan for morbid obesity, coverage is subject to a five-year waiting period, which the plaintiff maintains is discriminatory because it is a requirement not found for any other type of coverage. The court found that the plaintiff did not have standing to make this argument.

There was a companion case pending in this court, Whittemore v. Cigna Health and Life Insurance Company, No. 2:24-cv-206-LEW (D. Me. Feb. 12, 2025), which was also dismissed based on the court's findings that the allegations did not plausibly support that the plaintiff was disabled "let alone that every putative class member with a BMI of 30 or more is presumably (or as a matter of law) disabled" (emphasis in original) or that the defendant considered the plaintiff as such. 

This decision is welcome news to employers, issuers, and health plans as they continue to grapple with consumer demand for coverage of GLP-1 and similar drugs for weight loss and potential risk of liability from similar suits. 

White House Directs Repeal of Agency Rules "Potentially Unlawful" Under Supreme Court Decisions

On April 9, 2025, the Trump administration issued a presidential memorandum entitled, "Directing the Repeal of Unlawful Regulations." The memorandum issues further directives to federal agencies tasked with reviewing their regulations by Executive Order (E.O.) 14219, "Ensuring Lawful Governance and Implementing the President's 'Department of Government Efficiency' Deregulatory Initiative." Issued in February, the E.O. instructs agency heads to identify certain categories of regulations, including those that may be unconstitutional or unlawful, and to provide a list of such regulations to the administrator of the Office of Information and Regulatory Affairs (OIRA) within 60 days (by April 20, 2025). The memorandum outlines what agencies should prioritize when conducting reviews for "unlawful and potentially unlawful regulations," and orders agencies to "immediately take steps to effectuate the repeal" of identified regulations.

The memorandum lists 10 Supreme Court decisions by which it directs agencies to evaluate regulations for potential unlawfulness. The decisions and their central holdings, which illuminate the administration's priorities as it seeks to effectuate its deregulatory policies, are as follows: 

• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) (overturning Chevron deference and requiring courts to exercise independent judgment as to whether an agency has acted within its statutory authority)
• West Virginia v. EPA, 597 U.S. 697 (2022) (finding that an Environmental Protection Agency (EPA) regulation was not statutorily authorized because the statute lacked the clear congressional authorization required for a regulation implicating the "major questions doctrine")
• SEC v. Jarkesy, 603 U.S. 109 (2024) (finding that the Seventh Amendment entitles defendants in Securities and Exchange Commission (SEC) civil enforcement proceedings to a jury trial)
• Michigan v. EPA, 576 U.S. 743 (2015) (finding that the EPA acted unreasonably in failing to consider economic costs when determining how to regulate power plants under the Clean Air Act)
• Sackett v. EPA, 598 U.S. 651 (2023) (limiting the EPA's interpretation of federal jurisdiction conveyed by the Clean Water Act)
• Ohio v. EPA, 603 U.S. 279 (2024 (finding that an EPA rule was likely arbitrary and capricious when the agency did not provide reasoned responses to certain comments)
• Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) (finding that a state regulation requiring employers to allow union organizers onto their property constitutes a per se taking under the Fifth and Fourteenth Amendments)
• Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023) (holding that multiple universities' use of race in their admissions processes violates the Equal Protection Clause)
• Carson v. Makin, 596 U.S. 767 (2022) (finding that a state's tuition assistance program prohibiting using assistance to attend religious schools violated the Free Exercise Clause)
• Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020) (finding that state COVID-19 restrictions likely violated the First Amendment by treating religious exercises worse than secular activities)

The memorandum instructs agencies to repeal any identified regulations "without notice and comment," when doing so is possible under the Administrative Procedure Act (APA), giving priority to regulations in conflict with the aforementioned cases. Further, agencies are instructed to submit a "one-page summary of each regulation" that was identified pursuant to E.O. 14219 but which the agency chose not to repeal, explaining the basis for the agency's decision, to OIRA within 30 days of April 20. The 2024 tri-agency rule expanding the regulations interpreting and implementing mental health parity statutory requirements and DOL's latest iterations of the regulations defining an ERISA investment advice fiduciary and the role of environmental, social, and governance (ESG) factors in plan investing will surely face close scrutiny under this directive.

E.O. on Drug Prices Seeks New ERISA Exemption Regulations

On April 15, 2025, President Trump issued an E.O. entitled, "Lowering Drug Prices by Once Again Putting Americans First," which sets forth multiple policy objectives and directives aimed at lowering prescription drug costs. Most of the directives in the E.O. target drug costs within Medicare and Medicaid, but several extend beyond those programs and impact ERISA plans. One such directive to the Secretary of Labor calls for a proposal for ERISA's prohibited transaction exemption regulations under the health plan fee disclosure requirements added to ERISA in 2020 to increase transparency into pharmacy benefit manager (PBM) fees. Similar proposals were included in the Lower Costs, More Transparency Act (H.R. 5378), which passed in the House in 2023, and in a failed continuing resolution bill proposed in December 2024. 

Noteworthy policy directives in the E.O. include:

• Reevaluating the Role of Middlemen. Within 90 days, the Assistant to the President for Domestic Policy, in coordination with the Secretary of Labor, the Office of Management and Budget (OMB) Director, and the Assistant to the President for Economic Policy, shall provide recommendations to the president on how best to promote a more competitive, efficient, transparent, and resilient pharmaceutical value chain that delivers lower drug prices for Americans.
• Accelerating Competition for High-Cost Prescription Drugs. Within 180 days, the Secretary of Labor, through the Commissioner of Food and Drugs, shall issue a report providing administrative and legislative recommendations to: accelerate approval of generics, biosimilars, combination products, and second-in-class brand name medications; and improve the process through which prescription drugs can be reclassified as over-the-counter (OTC) medications, including recommendations to optimally identify prescription drugs that can be safely provided to patients OTC.
• Improving Transparency in PBM Fee Disclosure. Within 180 days, the Secretary of Labor shall propose regulations pursuant to section 408(b)(2)(B) of ERISA to improve transparency into the direct and indirect compensation received by PBMs.

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