By Emmy Freedman, LAW 360

https://www.law360.com/articles/1705299/hiv-patients-can-amend-disability-bias-suit-against-cvs

Law360 (July 28, 2023, 9:00 PM EDT) — Patients can revise their claims that CVS Pharmacy Inc.violated the Affordable Care Act by forcing people with HIV and AIDS to get medications by mail, a California federal judge said Friday, rejecting the company’s argument that the case was no longer viable.

In an order, U.S. District Judge Edward M. Chen granted the patients’ request to amend their lawsuitagainst CVS and its prescription benefit management subsidiaries Caremark LLC and CaremarkCalifornia Specialty Pharmacy LLC.

Judge Chen also denied the company’s April motion to toss the suit, in which CVS had argued thatthe case was moot because none of the remaining plaintiffs currently receive prescriptions from thecompany’s Caremark units. But Friday’s order gave the patients a green light to add a new plaintiff totheir pleadings who they say is currently enrolled in the mail-order prescription program.”

Plaintiffs have demonstrated that amendment would not be futile, and in light of Ninth Circuitprecedent favoring leave to amend, the court grants plaintiffs’ motion to amend the complaint,”Judge Chen said.

The suit dates back to a complaint filed in February 2018 by four anonymous HIV-positive patients who said they received prescription drug coverage through employer-sponsored health plans administered by Caremark. They said the companies discriminate against people with HIV and AIDS by not giving them the option to fill their prescriptions in person at a retail pharmacy.

But two of those patients have since died, and two other patients no longer receive benefits throughCaremark, according to court records.

Judge Chen said CVS failed to show that allowing the patients a chance to amend their suit willproduce a significant burden, or that adding in the new John Doe plaintiff would be futile. While CVS had argued that the new patient can actually receive medication in person at community pharmacies rather than through the mail, Judge Chen said the evidence does not conclusively show that that’strue.

The patients also got permission to amend their complaint to clarify whether they’re owed monetarydamages if they succeed on their claims. Under the ACA, monetary damages are only available as aremedy if charging parties can show they were subjected to intentional discrimination, the order said.

To show that they’re owed money, the patients said they wish to edit their complaint to proceedunder a theory of deliberate indifference, citing the Ninth Circuit’s 2008 decision in Mark H. v.Lemahieu. They said that in that case, the court found that a defendant could be held liable fordamages if it intentionally or with deliberate indifference failed to provide meaningful access orreasonable accommodations to people with disabilities.

CVS had argued that the patients shouldn’t be able to amend their complaint to add that theorybecause the court had already discussed and dismissed the question of damages. But Judge Chendisagreed, saying neither this court nor the Ninth Circuit — which revived the ACA claims inDecember 2020 — had previously considered a deliberate indifference theory of discrimination.

Judge Chen said the viability of the patients’ deliberate indifference claim relies on whether CVS wasaware of their need for accommodation. Because they offered several pieces of evidence that couldshow the company was aware of their requests, Judge Chen said, giving them another chance to fixtheir suit is warranted.

Jerry Flanagan, who represents the patients, told Law360 in an email Friday that they were pleasedby the judge’s decision.

“We’re thrilled for our clients and the family members of our clients that have passed away that thecourt will allow the case to continue so that we may vindicate the rights of people living with HIV,”Flanagan said.

Representatives of CVS did not immediately respond to requests for comment Friday.

The employees are represented by Jerry Flanagan, Benjamin Powell and Daniel L. Sternberg of Consumer Watchdog and Alan M. Mansfield, Joe R. Whatley Jr., Edith M. Kallas and Henry C. Quillenof Whatley Kallas LLP.CVS Pharmacy is represented by Enu Mainigi, Craig D. Singer, Grant A. Geyerman, Sarah O’Connorand Benjamin W. Graham of Williams & Connolly LLP and John J. Atallah of Foley & Lardner LLP.

The case is Doe One et al. v. CVS Health Corp. et al., case number 3:18-cv-01031, in the U.S.District Court for the Northern District of California.

–Editing by Abbie Sarfo.