July 2, 2021…

CVS Pharmacy v. John Doe

In 2018, a group of HIV-positive individuals filed a federal discrimination lawsuit after the pharmacy chain CVS enrolled them in a prescription benefit plan that limits the ways in which they can get specialty medications, a class that includes prescriptions to treat HIV and AIDs, at “in-network” prices.

Whereas before the patients could use their full insurance benefits while obtaining their HIV/AIDS medication from any in-network pharmacy, including from pharmacies that were not at a CVS retail location, the change to the Caremark California Specialty Pharmacy program meant that they could only accept medication through mail delivery or by going to a CVS pharmacy. 

They say neither option works since mail delivery leaves their medication exposed to the elements, including heat or theft, while pick-up at a CVS affords little privacy.

The plaintiffs sought an exemption from the insurance plan’s delivery conditions by arguing that they have disproportionate effects on members with HIV or AIDS. 

CVS petitioned the Supreme Court for a writ of certiorari after the Ninth Circuit held that plaintiffs stated a claim for disability discrimination under the federal heath care law.

On Monday, the justices agreed to decide whether section 504 of the Rehabilitation Act, which prohibits disability discrimination by recipients of federal funding, provides a cause of action for plaintiff’s discrimination through disparate impact

CVS is represented by Lisa S. Blatt at Williams & Connolly. The anonymous patients are represented by Consumer Watchdog attonrey Gerald Sinclair Flanagan.