Los Angeles, CA – CVS acted intentionally when it implemented a drug program that discriminates against people living with HIV, according to Consumer Watchdog and Whatley Kallas, LLP in a federal court filing late yesterday.

Download the legal brief here.

The latest legal filing comes in a long-running legal battle led by attorneys for Consumer Watchdog and Whatley Kallas, LLP over civil rights violations relating to a CVS drug program that limits people living with HIV to obtaining their life-saving medications only by mail-order. The program cuts off access to pharmacists and other critical benefits and services essential for people living with HIV, while continuing to make the broader benefits and services available to other enrollees.  

Download the Third Amended Complaint here.

In the brief filed late yesterday, attorneys for Consumer Watchdog and Whatley Kallas, LLP argue that CVS was aware that the program was “substantially likely” to cause harm to people living with HIV, “[y]et CVS made the deliberate choice to plow ahead with the Program and deny reasonable accommodations to Plaintiffs as a matter of internal policy or practice.” 

In support, lawyers for the four HIV positive “John Doe” plaintiffs pointed out (among other factors) that:

• Plaintiffs repeatedly complained to CVS and made multiple requests for reasonable accommodations in every manner CVS made available to them but were ignored by CVS as a matter of policy and practice.

• CVS’s own medical studies and surveys made clear “that the design of the Program was suboptimal for HIV medications and likely discriminatory against people living with HIV.”

• Numerous related lawsuits and media coverage addressed nearly identical issues, including an article by The New York Times about a similar lawsuit (and subsequent settlement) against current CVS subsidiaries Aetna, Inc. and Coventry Health Care, Inc.

Under the federal Affordable Care Act, the intentional discrimination requirement giving rise to money damages is met when a defendant “intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to disabled persons.” Mark H. v. Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008).

In addition to money damages, the lawsuit seeks a nation-wide injunction to bar CVS from continuing to implement the mail-order plan in its current form for HIV medications.

The Ninth Circuit Court of Appeals previously held that Plaintiffs “adequately alleged that they were denied meaningful access to their prescription drug benefit, including medically appropriate dispensing of their medications and access to necessary counseling.” Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 1211 (9th Cir. 2020). The Supreme Court granted certiorari, but Defendants withdrew their petition under pressure from disabilities rights groups. CVS Pharmacy, Inc. v. Doe, 210 L. Ed. 2d 990, 141 S. Ct. 2882, 2883 (2021).

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. 

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

If you are prescribed medications to treat or prevent HIV and are enrolled in a healthcare plan where your pharmacy benefits are coordinated by CVS Specialty, or if you are interested in more information about this lawsuit, please contact Consumer Watchdog here and let us know about your experience.

The case is John Doe One, et al. v. CVS, et al., No.: 3:18-cv-01031 and is pending in federal district court in San Francisco before United States Senior District Judge Edward M. Chen.

-End-

Consumer Watchdog is a non-profit and non-partisan public interest organization. Visit us on the web at https://www.consumerwatchdog.org/

Whatley Kallas, LLP attorneys have earned a national reputation—based on trust, respect, demonstrated commitment and tangible results—in connection with their representation of healthcare providers and members of the organized medicine community. Visit Whatley Kallas, LLP on the web here: https://www.whatleykallas.com/