By Amanda Ottaway, LAW360

November 12, 2021

https://www.law360.com/health/articles/1439984/cvs-drops-high-court-dis…

Law360 (November 12, 2021, 2:30 PM EST) -- CVS Pharmacy abandoned its U.S. Supreme Court challenge to a proposed class action brought by HIV-positive patients who said a requirement that they get prescriptions by mail or at a CVS store, rather than at a neighborhood pharmacy, amounted to disability discrimination.

CVS and the anonymous patients filed a stipulation of dismissal with the nation's highest court Thursday, alerting the justices that they'd agreed to dismiss CVS' petition for review, which was filed in March and partially granted in July. Oral argument had been set for Dec. 7.

The pharmacy had argued that Section 504 of the Rehabilitation Act — and by extension the Affordable Care Act — doesn't allow people claiming disability bias to pursue so-called disparate impact claims, which allege a group has been affected disproportionately by a seemingly neutral policy such as prescriptions by mail.

"Our agreement to pursue policy solutions in collaboration with the disability community will help protect access to affordable health plan programs that apply equally to all members," said David Casey, CVS Health chief diversity officer and senior vice president of workforce strategies, in a Wednesday statement.

The pharmacy giant brought the issue to the Supreme Court after the Ninth Circuit revived the patients' case, finding that they had sufficiently alleged that the structure of CVS' program is discriminatory because it prevents them from getting the same level of care that non-HIV/AIDS patients regularly receive when filling prescriptions through their employer-sponsored plans.

In their own high court brief in June, the patients, who said their prescription drugs are covered through their employee health plans, argued that their local pharmacists know their medical histories and can help prevent dangerous medication combinations and bad side effects. The patients also cited privacy and delivery issues with CVS, problems they said were not as common when they got their prescriptions from community pharmacies.

The announcement that CVS was dropping the suit came just weeks after the federal government threw its support behind the patients in a friend-of-the-court brief Oct. 28, followed by several other groups. The U.S. Chamber of Commerce, the Independent Women's Law Center and others had weighed in on CVS' behalf.

"We commend CVS for recognizing the potentially damaging impact of its appeal to the U.S. Supreme Court. Now, CVS should take the next step and ensure that people living with HIV have equal opportunity to access the same pharmacy benefits that other consumers receive," said Jerry Flanagan, litigation director of Consumer Watchdog, which represented patients, in a statement shared with Law360 on Friday.

He told Law360 in September that two of the five patients had died since the Supreme Court took up the case.

In an email Friday, CVS Health spokesperson Mike DeAngelis said, "Any further legal proceedings will take place in district court when the case is remanded, but we're not discussing our legal strategy at this time." 

Counsel for CVS declined to comment Friday. 

CVS is represented by Lisa Blatt, Enu Mainigi, Craig Singer, Sarah Harris, Katherine Moran Meeks, Kimberly Broecker and Aaron Roper of Williams & Connolly LLP.

The patients are represented by Gerald Flanagan, Daniel Sternberg and Benjamin Powell of Consumer Watchdog, Alan Mansfield and Henry Quillen of Whatley Kallas LLP and Scott Nelson of Public Citizen Litigation Group.

The case is CVS Pharmacy Inc. et al. v. John Doe One et al., case number 20-1374, in the U.S. Supreme Court.

--Additional reporting by Melissa Angell and Rachel Stone. Editing by Roy LeBlanc.