By Bob Egelko, SAN FRANCISCO CHRONICLE
November 10, 2021
Less than a month before the Supreme Court was to hear a Bay Area suit against CVS that could have narrowed the scope of the nation’s disability laws, the drugstore chain announced an agreement Wednesday with advocacy groups and HIV patients who had challenged its policies on receiving prescription medication.
The high court had granted review in July of an appeal by CVS from a lower-court ruling that allowed patients to sue over practices that have a disproportionately harmful effect on people with disabilities, even if there was no proof of discriminatory intent.
CVS and pro-business groups argued that the disability law prohibited only intentionally harmful practices, and that the appeals court ruling would increase company costs and consumer prices. A ruling in their favor would have substantially limited the law’s application to government-funded programs, including Medicare, from which CVS receives funds.
The conservative-majority court was scheduled to hear the case Dec. 7 and issue a ruling by next summer. But CVS and disability groups said Wednesday they would instead work to reach agreement on on a policy that would provide “equitable access to health care for all Americans.”
“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, a CVS vice president and the company’s chief diversity officer. “As a result, we will not pursue the matter further before the Supreme Court.”
Judith Heumann, a disability-rights advocate taking part in the talks, said, “CVS Health engaged in an honest dialogue with disability community representatives and listened carefully to our concerns about what was at stake for disabled people with the question before the Supreme Court.”
The suit by five unnamed HIV/AIDS patients, filed in a San Francisco federal court in 2018, challenged a new prescription-drug policy by the patients’ pharmacy benefits manager, CVS Caremark, and the patients’ employers.
Previously, the patients could fill their prescriptions at any local drugstore and consult with the pharmacists, who had prepared the medications, about any potential side effects or interactions with other drugs they were taking. Under the new policy, they said, to keep discounts that could amount to thousands of dollars per month, they were required to receive all “specialty drugs” by mail or by pickup at a CVS pharmacy.
Because the medicines are prepared elsewhere and sent 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 found no discrimination and dismissed the suit, but it was reinstated last December by the Ninth U.S. Circuit Court of Appeals, which said the patients could try to prove they were being discriminated against because of their illness.
In a 3-0 ruling, Judge Milan Smith said CVS may be violating the law if the patients can prove, as they claim, that they 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.” He noted that AIDS patients are protected by federal disability law.
The court’s assessment that disability discrimination includes unintentionally harmful practices was in line with the conclusions of most federal appeals courts that had considered the issue. But CVS, in its Supreme Court appeal, said claims that a health care provider’s practices have a discriminatory impact “thrust courts into a policy-making role that properly belongs to the political branches or private enterprise.”
Although the company will now drop its appeal, “there is no change to our policies,” Michael DeAngelis, a spokesperson for CVS Health, said Wednesday. “As the statement says, we will seek public policy solutions in partnership with the disability community.”
But Susan Mizner, disability-rights director for the American Civil Liberties Union, said, “We are grateful to the leaders at CVS who listened to the disability community and agreed to reverse course. There are always better solutions to a problem than to undercut the foundation of disability rights laws.”
The case is CVS Pharmacy vs. Doe, 20-1374.