Aetna’s HIV Drugs Mail-Order Rule Is Biased, Suit Says

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HIV-positive plan subscribers of Aetna Inc. are suing to stop the insurance giant from putting into place a New Year’s policy that they say threatens their health and privacy, according to a putative class action filed in California federal court Friday.

An unnamed John Doe seeks to lead a class of Aetna beneficiaries who say that they are being discriminated against under certain provisions of the Affordable Care Act and several federal and state laws, by being forced to shift all prescription orders to a mail-order service run by wholly owned Aetna subsidiary Aetna Specialty Pharmacy LLC.

“Defendants’ decision to force class members to accept ASP as their exclusive mail-order provider under the program is primarily motivated by profit. As a result of the program, Aetna and ASP will likely continue to see a substantial increase in revenues and even greater increases in profits as a result of the forced transition of its enrollees,” according to the complaint.

The program, the suit says, would require them to order all lifesaving medications through ASP or pay thousands of dollars out of pocket, putting all but the richest HIV and AIDS patients at risk by denying them access to previously in-network community pharmacists who can monitor a patient’s medication in-person and adjust accordingly.

What is more, the mail-order service leaves certain members at risk of not being able to access their medication entirely, according to the suit, because there is a limited window for patients to reorder their prescription every month.

“If there are circumstances that make it difficult for the patient to reorder drugs at the time … or if there are any processing or mail delays, HIV/AIDS patients will likely miss doses and potentially experience serious health problems as a result,” the suit contends.

The complaint also cited privacy concerns, saying that because HIV and AIDS medication is often delivered in refrigerated containers, patients forced to receive their shipments at work or at an apartment building may have their status unwantedly revealed to coworkers and neighbors.

Nowhere in a policy-shift letter Aetna sent to plan enrollees in November does Aetna mention the new mail-order requirements, set to kick into effect on Jan. 1, 2015, nor does it clarify what is means when it says HIV and AIDS drugs are set to be shifted to “specialty pharmacy benefit,” the suit alleges. Many plan subscribers are thus unaware of the effect the new process will have on them, according to the suit.

The proposed class is seeking to enjoin Aetna from instituting the policy and to pay any restitution should the plan go into effect.

Aetna representative Cynthia Michener told Law360 on Monday that the policy shift is consistent with industry standards and that, while the company encourages enrollees to use ASP, there is an option allowing plan subscribers to opt-out and use a different pharmacy.

“As part of our ongoing strategy to do all we can to keep our health plans affordable and help with medication adherence, Aetna moved HIV medications to our specialty drug list. This list includes a number of high-cost medications that treat complex conditions that require close patient monitoring,” Michener said.

The plaintiffs are represented by Edith M. Kallas and Alan M. Mansfield of Whatley Kallas LLP and Jerry Flanagan of Consumer Watchdog.

Counsel information for Aetna was not immediately available Monday.

The suit is Doe v. Aetna Inc. et al., case number 3:14-cv-02986, in the U.S. District Court for the Southern District of California.

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