State Health Department, CVS Sued Over HIV Mailing

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State Health Department, CVS Sued Over HIV Mailing


June 29, 2018

The Ohio Department of Health has been sued in connection with a mailing that might have publicly disclosed the identities of 6,000 HIV patients. The suit follows one in another venue against CVS Caremark, the entity that actually sent the letters.

The suit against the state says that in allowing CVS to undertake the mailing, the state was sharing patients’ private medical information without authorization. It also says CVS used the mailing as a marketing pitch to non-CVS customers, touting its range of pharmacy services.

“They wholesale delivered personal health information,” said Terry Kilgore, the Cleveland-area attorney who filed the class-action suit in the Ohio Court of Claims, which he said is the only venue in which a state department can be sued. CVS was sued over its role in the mailing in federal court in March.

CVS Caremark last year contracted with the state to be pharmacy-benefit manager for an HIV drug-benefits program. A mass mailing last summer by CVS to 6,000 patients “contained the recipient’s name and address, with the designation ‘PM 6402 HIV’ directly and immediately above the person’s name,” the suit says.

In an email, CVS spokesman Michael DeAngelis said his company takes patient privacy seriously but that future mailings would be done differently.

“Last year, as part of a Caremark benefits mailing to members of an Ohio client, a reference code for an assistance program was visible within the envelope window,” he said. “This reference code referred to the name of the program and not to the recipient’s health status. This reference code has been eliminated from future mailings.”

HIV is the virus that leads to AIDS. The virus was once a virtual death sentence, but thanks to modern pharmaceuticals, patients can survive indefinitely with it.

However, Kilgore said patients have numerous reasons for keeping their HIV status private. They risk being shunned by family members and friends and employers might fire them, he said. Also, as the Trump administration is trying to allow insurers to again refuse coverage to patients with pre-existing health conditions, HIV patients “would be uninsurable,” Kilgore said.

The Ohio Department of Health doesn’t comment on pending litigation, Russ Kennedy, a spokesman, said in an email.

The suit against his agency says it improperly allowed CVS to mail out ID cards to Ohio HIV patients.

“At some point prior to August 2017, even though (the Ohio Department of Health) in its proposal stated that it would take sole responsibility for such a mailing, CVS and (its contractor) agreed to send a mailing to (Ohio Drug Assistance Program) participants relating to CVS providing services to OHDAP enrollees and sending them membership cards,” the suit says.

“Significantly, many individuals did not have a relationship at that time with CVS and thus had not provided any prior authorization for CVS to access such information.”

Since March The Dispatch has been examining the role CVS and other large pharmacy-benefit managers play in the Ohio health system and the larger economy. As part of the coverage, the paper has reported on how CVS has used its access to information about patients in the Medicare Part D program to try to steer them to its retail and mail-order pharmacies.

The lawsuit on behalf of HIV patients accuses the company of something similar.

Its letter containing ID cards also had “information marketing and promoting the CVS program and how persons would access their HIV-related prescriptions,” the suit said. “This letter was mailed to an estimated 6,000 participants in OHDAP, regardless of whether they were active pharmacy customers of CVS, and thus marketed and promoted the use not only of CVS’s pharmacy benefit management services, but also of its health care delivery services in general.

The letter advised OHDAP participants that they could obtain their HIV medications in one of two ways, both provided exclusively by CVS-affiliated entities: from one of CVS’s 320 retail pharmacies in Ohio (as well as 59 CVS pharmacies located in Target stores), or through CVS’s specialty mail-order pharmacy.

A firewall is supposed to exist between the huge company’s retail pharmacies and its pharmacy-benefit manager side, CVS Caremark.

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