San Francisco Chronicle – HIV Patients CVS Lawsuit Reinstated; Suit That Claims AIDS Patients Lost Medical Information, Guidance May Proceed, Court Rules

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December 10, 2020

HIV/AIDS patients who said they lost access to potentially vital medical information when their health plans started requiring them to obtain their medications from CVS pharmacies can sue for discrimination, a federal appeals court ruled Wednesday.

In previous years, the patients’ employers allowed them to fill prescriptions at various pharmacies and receive in-network discounts. Because those pharmacists prepared the medications, the lawsuit said, they could answer patients’ questions about potential side effects and any dangerous interactions with other drugs they were taking.

But the suit, filed in San Francisco federal court in 2018 by five AIDS patients, said their pharmacy benefits manager, CVS Caremark, now required them to obtain all “specialty medications,” including HIV/AIDS drugs, at a CVS pharmacy in California to get the discount, which can amount to thousands of dollars per month. 

Because the medicines are prepared elsewhere and mailed to the patient’s home or to CVS, its pharmacists cannot legally discuss possible hazards, the lawsuit said. It said patients also risked losing their privacy when pharmacy staff shouted their names and medications in the presence of other customers.

A federal judge dismissed the suit, finding no discrimination against AIDS patients because they were treated the same as other patients who needed specialized prescriptions. But the Ninth U.S. Circuit Court of Appeals in San Francisco reinstated the suit Wednesday and said the patients could try to prove they are suffering disability discrimination because of their illness.

The suit alleges that the patients are being denied “aspects of pharmaceutical care that they deem critical to their health … including medically appropriate dispensing of their medications and access to necessary counseling,” Judge Milan Smith said in the 3-0 ruling. He said it also alleges that the “constant mutation” of the virus “requires pharmacists to review all of an HIV/AIDS patient’s medications for side effects and adverse drug interactions, a benefit they no longer receive.”

Those allegations, if proved, could show discrimination against AIDS patients, who are protected by federal disability law, Smith said. CVS is covered by the law because it receives federal Medicare funding. 

The suit was filed by five unnamed California patients, two of whom are from the Bay Area, said their attorney, Jerry Flanagan of Consumer Watchdog. They sued CVS and their employers, Lowe’s, Time-Warner and Amtrak.

“They’ve lost important protections threatening their privacy and their health,” Flanagan said. He called the ruling “an important victory for HIV patients.”

CVS spokesman Mike DeAngelis said the company would continue to seek dismissal of the suit. He said CVS allows its employer clients to decide where medications such as AIDS prescriptions should be delivered.

“Each client selects the options that best meet its benefit plan objectives,” DeAngelis said in a statement. 

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