Home > News & Commentary > Health Law & Policy > Groups Commend CVS’s Withdrawal of U.S. Supreme Court Challenge To HIV Rights, says Consumer Watchdog

Groups Commend CVS’s Withdrawal of U.S. Supreme Court Challenge To HIV Rights, says Consumer Watchdog

This was originally published by Consumer Watchdog on PRNewswire on November 11, 2021.

CVS Health Corporation’s dismissal today of an appeal to the U.S. Supreme Court of a health care civil rights lawsuit involving the rights of numerous HIV-positive “John Does” should be commended, according to consumer groups and a law firm representing the plaintiffs. The plaintiffs allege that CVS’s prescription drug program for obtaining HIV medications put their lives at risk.

“We commend CVS for recognizing the potentially damaging impact of its appeal to the U.S. Supreme Court. Now, CVS should take the next step and ensure that people living with HIV have equal opportunity to access the same pharmacy benefits that other consumers receive. We look forward to discussing with CVS how to best achieve that result,” said Jerry Flanagan, Litigation Director of Consumer Watchdog and counsel of record for the plaintiffs in the U.S. Supreme Court action.

The case before the Supreme Court, CVS Pharmacy, Inc. et al. v. John Doe, One, et al. (No. 20-1374), was filed in federal court in San Francisco in 2018 by attorneys for Consumer Watchdog and Whatley Kallas, LLP. Attorneys for Public Citizen joined the case at the U.S. Supreme Court. Oral argument in the action had been set for December 7, 2021.

The case before the U.S. Supreme Court involved an appeal by CVS of a unanimous ruling by the Ninth Circuit Court of Appeals finding the plaintiffs had appropriately pled a claim for disability discrimination based on its discriminatory impact. CVS’s petition to the U.S. Supreme Court, which was the subject of the request for dismissal filed today, sought to limit the reach of two landmark civil rights laws providing people living with disabilities “meaningful access” to benefits. The case now returns to the federal district court for additional proceedings.

CVS, one of the largest healthcare companies in the world, owns pharmacies throughout the U.S., but also operates as a pharmacy benefit manager, which coordinates pharmacy benefits for people like the John Does who are enrolled in employer-provided health plans. 

CVS’s program limits people living with HIV to obtaining their life-saving medications only by mail-order—cutting off access to pharmacists and other critical benefits essential for people living with HIV—while continuing to make the same benefits available to others. The United States government and multiple disability groups filed “friend of the court” briefs, including one from the AIDS Healthcare Foundation and another from Harvard Law School’s Center for Health Law and Policy Innovation, which detailed the health threats that such mail-order-only prescription drug programs cause for people living with HIV.

Download the brief filed by the John Doe plaintiffs at the U.S. Supreme Court here: https://tinyurl.com/b3frvx7p.

Though there is currently no cure for HIV, it can be effectively treated with antiretroviral medications. But use of those medications requires careful oversight and quick transition to new medications as the virus develops resistance, as well as monitoring for side effects that sometimes are only shown through visual cues. Pharmacists play a critical role in ensuring stable access to medications and counseling for people living with HIV. CVS’s program, plaintiffs allege, causes a “loss of meaningful access” to pharmacy benefits by cutting off access to pharmacists, among other things.

People living with HIV, the virus that causes AIDS, have historically faced discrimination throughout the healthcare system. Section 1557 of the Affordable Care Act, one of the laws at issue in this case, is a key provision barring health insurance practices that have the effect of reducing access to benefits for people with disabilities such as HIV. Section 1557 re-adopts, and applies to health insurance, legal protections for people with disabilities enrolled in federally funded programs, as originally enacted in 1973 under Section 504 of the Rehabilitation Act.

In this case, CVS argued that Section 504 and Section 1557 cover only intentional discrimination, but not unintentional discrimination that has the effect of denying or excluding an individual with a disability from a benefit provided to others.

CVS’s position is at odds with the plain language of the statutes and a prior unanimous Supreme Court decision by Justice Thurgood Marshall, as well as decades of decisions by the nation’s Courts of Appeals. The Marshall opinion recognized that such “effects-based” protections were designed by Congress to address the fact that discrimination against people living with disabilities is most often the result of “thoughtlessness,” “indifference,” and “benign neglect” rather than only intentional activity. 

For example, the existence of a staircase typically does not reflect an intent to discriminate against individuals with disabilities. But, as plaintiffs’ brief notes, “if steps lead to the office where beneficiaries of a program must apply to participate, and there is no other access, persons who use wheelchairs are excluded from participation in the program and denied its benefits solely by reason of disability.” In the case before the Supreme Court, CVS’s discriminatory pharmacy program requiring access to HIV medications only through mail order applies to people solely because of their HIV status and prevents meaningful access to benefits available to others, regardless of whether of CVS’s actions were motivated by an intent to discriminate.

Through this lawsuit, the John Doe plaintiffs seek to undo the program’s disability-based restrictions and provide equal access to the same benefits others already have.

Most other major health insurance companies in the United States now allow members to opt out of mail-order-only delivery of HIV medications as a result of numerous settlements achieved by attorneys for Consumer Watchdog and Whatley Kallas, LLP. 

In a press release issued yesterday CVS announced that it would withdraw its petition in the Supreme Court. Today, CVS filed a stipulation of dismissal that will allow the case to continue in the lower courts.

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