Ninth Circuit Reinstates HIV Discrimination Claims Against CVS Prescription Drug Mail-Order Program

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Los Angeles, CA — Today the Ninth Circuit Court of Appeals overturned a lower court decision holding that five “John Doe” HIV patients could pursue a discrimination claim against CVS Caremark for requiring HIV and AIDS patients to obtain their medications by mail-order or drop shipment to a CVS store.  

Download the Ninth Circuit Opinion here:

The Ninth Circuit Court of Appeals reversed the lower court decision that found the plaintiffs had not adequately alleged a disability discrimination claim, finding the plaintiffs properly alleged that the CVS mail order program violated the anti-discrimination provisions of the Affordable Care Act (“ACA”).

“This decision is an important victory for HIV patients who sought to vindicate their health care rights and obtain their life-sustaining medications in medically-appropriate manner,” said Jerry Flanagan of Consumer Watchdog.

The plaintiffs are represented by attorneys for Consumer Watchdog and Whatley Kallas, LLP.

The Ninth Circuit held that the Plaintiffs’ complaint properly alleged the CVS mail order program resulted in a “loss of meaningful access” to the broader prescription drug benefit because the program “causes them substantial difficulties and puts their privacy at risk.” The ruling remands the case to the U.S. District Court for the Northern District of California in San Francisco for further action.

The plaintiffs filed the case anonymously because despite exceptional advancement in medical treatments, HIV remains one of the most stigmatized diseases in our country’s history and many patients still live in the shadow of the AIDS epidemic. 

As the Ninth Circuit noted, the Complaint alleged how until recently HIV patients “could fill their prescriptions at community pharmacies, where they were able to consult knowledgeable pharmacists who were familiar with their personal medical histories and could make adjustments to their drug regimens to avoid dangerous drug interactions or remedy potential side effects. [The John] Does allege these services, among others, are critical to HIV/AIDS patients, who must maintain a consistent medication regimen to manage their chronic disease.”

Mail order delivery of HIV/AIDS medications is not a viable option for many patients and can raise major privacy implications, particularly for those individuals who have not revealed their medical condition to employers, co-workers, friends, and family members.

The use of mail order delivery to homes and workplaces or to CVS stores also creates the very real risk of delayed, lost or stolen shipments, resulting in dire consequences for many patients who must strictly adhere to their medication regimes or face serious illness or death.

The Ninth Circuit found that Section 1557 of the ACA, which incorporates four civil rights statutes, provides patients the ability to challenge practices that deny them meaningful access to medical benefits.

The Ninth Circuit found:

“Indeed, [the John] Does have 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. Due to the structure of the Program as it relates to HIV/AIDS drugs, [the John] Does claim, they cannot receive effective treatment under the Program because of their disability.”

As the Ninth Circuit concluded, “[the John] Does allege the structure and implementation of the Program discriminates against them on the basis of their disability by preventing HIV/AIDS patients from obtaining the same quality of pharmaceutical care that non-HIV/AIDS patients may obtain in filling non-specialty prescriptions, thereby denying them meaningful access to their prescription drug benefit. Those allegations are sufficient to state an ACA disability discrimination claim.”

The Opinion was authored by Ninth Circuit Judge Milan D. Smith, Jr.  The other two Judges serving on the three-judge panel were the Honorable Andrew D. Hurwitz and the Honorable Timothy Burgess (sitting by designation).

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The lawyers of Whatley Kallas, LLP have been repeatedly recognized in legal publications, such as The National Law Journal and American Lawyer, by their peers and by leaders of organized medicine for their work in the healthcare field. For more information, go to:

Jerry Flanagan
Jerry Flanagan
Jerry Flanagan is Consumer Watchdog's Litigation Director. Flanagan leads Consumer Watchdog’s litigation efforts in the areas of health insurance coverage and access to treatments. He has over 20 years experience working in public interest and health care policy, legislation and litigation.

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