id ations threatening serious health consequences and there is no monitoring of life threatening drug interactions associated with eighty medications we are here today to give the district court committed three  error st the prescription drug benefit as a whole is a benefit at issue nd the limitations imposed by the mailer program tonight meaningful access to the broader prescription drug benefit and rd because there option you can either take end of the drugs by mail or at a location if that location where your neighborhood pharmacy you would have no complaint in this case which you know your honor we knew would be sent there for the  mailing is really quite irrelevant in this case the question is whether or not your son having to die right by being required to go to this other location to pick up the drugs rather than your neighborhood pharmacy place to pick it up is not the pharmacy correct because because if by definition the option offered you were either have it mailed to your home or you can pick it up at the s and the home that's the problem doesn't matter whether just that that's that's my point you would have no problem if the specialty pharmacy shipped the drugs to your local pharmacy which you know is not a shipment issue when it wen if you know where we're missing each other here so we need to focus in this case on what disadvantages are placed on your clients by having to go to the what you call the drop box location they are not being disadvantaged by by also having access to mail and whoa your problem is that the place that they have to go to pick it up if that's the option they choose is not the equivalent of a farm's is that fair i and what restricts the benefit here is that when you go to the drop box location you do not have the same access to services from a pharmacist that you might had you gone to your local pharmacy granted that have access to pharmacists by telephone if you pick up your drugs at the drop box location why isn't that the equivalent of having access to them in person at the pharmacy because we allege in the compl honor is that because the way the specially pharmacy works where is drugs are drop shipped and then the non a t v drugs are picked up separately no one is so he has has the ability to look at potential a life threatening drug interactions between  it just a quick question for you i see you saying that unless a pharmacist fills the order that they they are not in a position to counsel a patient about the drugs that there's i think it's probably  impact and a focus as the court found in markets we let me who is the focus is loss of meaningful action and that's what you did or didn't show cho didn't actually find it there was a cause of action for disparate impact under the rehabilitation act it sort of assumed it yeah i mean we sort of assumed it since so my question is is that issue resolved in the circuit absolutely your honor because what mark what case what case holds what case cases the th circuit is we gardeners of the predicate discriminatory act the question is was meaningful access the night and i understand that was your that was your answer that was your answer to judge judge smith's question my questions just a different one i just don't know that we've ever held this case presents a question that i don't think we've ever resolved which is is there a disparate in fact claim under the rehab act your opponents say there isn't i would say it's critical to this you've i q s assume you've alleged a disparate impact i don't i give you that for purposes of this question my question is is that state a cause of action under the rehab act and i think the answer to that is we have to decide that  well rehab act we never actually decided that the rehab act provides that cause of action i think this is an opportunity for the court to do so and they haven't explicitly but for us to succeed what you need to do is embrace the crowder and  after these folks became members of the plant i believe that least as to some of them that is what they lead yes ok so so really one way or another the plan change for some of these people correct that's what they'll edge ok so why why then i don't understand the argument well this is the plan they signed up for and they're trying to change it you changed it the argument your honor is not that this is the plan so see i don't understand the my difficulty is i think we need to get to the merits of their question and get past the question of whether or not this is the plan that there are player adopted the fact that their employer adopted it i want to get to that point because to me it's the crux of this case the reason i want to focus on i want to focus on the requirement that these folks go to the delivery home for the reasons i said before doesn't bother me  the question is whether or not they're being denied meaningful access to the benefit because if they have to go pick it up they do not have access to a pharmacist to explain the interactions  s pharmacy spatially unusual and there's nothing is everyone who gets is everybody get specialty medications disabled no none at all especially well so there's a group of this there's a group among those who get specialty medications who are disabled and you know in advance they're disabled because they have a tri v a and so you've in a fact treated them differently than able bodied people by requiring to have to pick up specialty medications at a remote location the fact that there may be other non disabled people who also have to pick them up there doesn't really make a difference as it does here are because in a disparate impact analysis you look at the if it being provided as merely the delivery of the medication or the access to the medication your friend says the benefit being provided is pharmacy services which is to say conditions and if you change that if you're allowed to change that then it will have enormous impacts on the way that the insurance is delivered in this country because if you can i ask you a hypothetical here and to save your time you don't need to tell me it's not the facts of this case what if what if the only drugs being put in the this program were hiv drugs would you does it matter that if you had a bunch of others if you have some it would be discriminatory by itself you make it nondiscriminatory by adding a bunch of other drives to the program you know because that's what the that's what a disparate impact claim is on your show if you need to look at what benefit i think in your hypothetical benefit i think you'd be too narrowly defined as you said it was just age and he joins because then you would be allowing a subterfuge theirs and it would it may have some bearing and so we're going to withhold submission by the moment we will communicate with the parties not so we move to the next and final paper argument in the