By Bob Egelko, SAN FRANCISCO CHRONICLE
July 2, 2021
The U.S. Supreme Court agreed Friday to hear an appeal by CVS of a ruling in a San Francisco case that allowed HIV/AIDS patients to sue for discrimination after a health plan affiliated with the giant pharmacy chain cut off their discounts if they picked up their prescriptions at other drugstores.
The Bay Area case, to be heard in the term that starts in October, could set new limits on discrimination suits by disabled patients. CVS is challenging a ruling by the Ninth U.S. Circuit Court of Appeals that said the federal health care law prohibits practices that have a disproportionately harmful effect on the disabled, even if there was no evidence of intentional discrimination. Four other federal appeals courts have considered the same issue, and three have reached the same conclusion as the Ninth Circuit.
In a filing with the Supreme Court, lawyers for CVS 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.” If pharmacies and employers cannot use “common cost-containment strategies,” CVS said, “then either the cost of the pharmacy plan will increase overall or benefits must be reduced for other patients with different medical needs.”
Lawyers for five patients who sued CVS replied that they were only seeking the same benefits available to nondisabled people, and that the pharmacy’s policy has put “lives at risk.”
The suit, 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.
U.S. District Judge Edward Chen dismissed the case, saying AIDS patients were treated the same as other patients who needed specialized prescriptions. The Ninth Circuit reinstated the suit in December and said the patients could show discrimination if the new policy deprived them of vital medical assistance. The Supreme Court set that ruling aside Friday by granting review.
In a filing supporting CVS, the Washington Legal Foundation and the Independent Women’s Law Center, both pro-business groups, said a ruling allowing suits based on a policy’s unintended impact on the disabled would “lead to increased costs for almost every American business that offers prescription-drug coverage for its employees.”
The patients’ lawyer, Jerry Flanagan of Consumer Watchdog, said Friday the issue the court must decide “is whether people living with HIV can access their life-sustaining medications in a medically appropriate manner.”
The case is CVS Pharmacy vs. Doe, 20-1374.