CVS class action over HIV customer discrimination can’t be tossed

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Update:

• A federal judge in California denied CVS’ motion to dismiss a class action lawsuit accusing the company of discriminating against people with HIV and AIDS with its prescription drugs benefit program.
• U.S. District Judge Edward M. Chen ruled that the company’s separate corporate entities could not protect them from claims alleging federal health care law violations.
• Five anonymous patients claim they are being discriminated against by only being able to receive their HIV medications through mail, arguing it robs them of the personal relationship they had with community pharmacists and jeopardizes their privacy.  
• CVS unsuccessfully argued that none of its five subsidiaries facing allegations can be held responsible for claims they violated the Affordable Care Act (ACA) by discriminating against individuals with disabilities. 
• The judge determined that Section 1557 of the ACA, which regards federal funding and discrimination, is broad enough to allow the claims to proceed.

CVS, HIV Discrimination Lawsuit Overview:

• Who: CVS Pharmacy Inc.
• What: CVS Caremark is facing class action claims that its prescription drug coverage improperly forces insured persons to purchase HIV/AIDS medications exclusively from CVS-owned pharmacies.
• Where: U.S. Supreme Court.

(Sept. 10, 2021)

CVS has responded to claims made by HIV-positive individuals that a policy preventing them from picking up insurance-covered HIV/AIDS medications at their local pharmacies is illegal under federal law. 

In a brief filed last Sunday, CVS Pharmacy Inc. argued that Section 504 of the Rehabilitation Act does not allow customers with HIV to claim disability bias due to its prescription drug coverage policy requiring insured persons to purchase HIV/AIDS medications exclusively from CVS-owned pharmacies or by mail.  

CVS argues the policy is neutral, and that it’s not its fault if it affects different people in different ways.

“What respondents allege is that their plan does not work as well for them because of their unique medical needs. But section 504 guarantees equal opportunity, not ‘equal results,’” the company said in the statement.

“All section 504 requires is that a plan make the same package of benefits available to participants regardless of their disability status—just as respondents’ plans do.” 

The plaintiffs first filed the class action in 2018, alleging an unannounced change in the terms of their prescription drug coverage has effectively barred them from purchasing their expensive and life-saving medications from any pharmacy other than CVS.

CVS does not respect privacy the way local pharmacies do, customers with HIV claim in class action lawsuit

They claim that after years of getting their HIV/AIDS drugs from local pharmacies that respected their privacy and with whom they had built good relationships, they are now forced into becoming CVS customers whether they want to or not.

According to the plaintiffs, enrollees in health plans that provide prescription drug coverage through CVS Caremark are told they must get their HIV/AIDS medications through Caremark Specialty Pharmacy, a subsidiary of CVS Health Corp.

Caremark Specialty Pharmacy’s only options for delivery are home delivery via mail order or drop-off delivery at a CVS location. The plaintiffs say these exclusive options threaten their health and privacy.

One plaintiff reports that his HIV/AIDS medications were delivered to his home during the day while he was away, leaving them exposed to hot sunshine that could degrade the medications. 

Plaintiffs who opted for delivery to a CVS location note that CVS does not have the same comprehensive records of their medication history that their preferred community pharmacies do.

Plaintiffs say their only alternative is to purchase their medications from another pharmacy, potentially paying full price for thousands of dollars’ worth of medications per month.

The new restriction went into effect in 2015 for some plaintiffs and in 2016 for others, according to the CVS Caremark class action lawsuit. Before then, the plaintiffs say they could purchase their HIV/AIDS medications at any in-network pharmacy, with full insurance benefits.

Do you get your prescriptions through CVS? Let us know your experience in the comments. 

Plaintiffs’ counsel includes attorneys Alan Mansfield and Edith Kallas of Whatley Kallas LLP, and Jerry Flanagan and Benjamin Powell of Consumer Watchdog.

The CVS Caremark HIV/AIDS Medication Restrictions Class Action Lawsuit is John Doe One, et al. v. CVS Health Corp., et al., Case No. 3:18-cv-01031, in the U.S. Supreme Court.

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