Metropolitan News-Enterprise


Thursday, December 10, 2020


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Disability-Discrimination Suit Against CVS Reinstated

Ninth Circuit Panel Says Claims Adequately Pled by Plaintiffs Suffering From HIV or AIDS Who, Under Defendant’s Drug Program, Incorporated in Health Plans, They Can’t Consult With Pharmacist and Still Enjoy Cost Benefit


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday revived a lawsuit against CVS Pharmacy, Inc. and related entities alleging that its prescription drug program, offered through employer-sponsored health plans, violates federal anti-discrimination provisions by denying access to critical benefits for enrollees afflicted with HIV or AIDS.

The opinion by Judge Milan D. Smith Jr. vacates an order by District Court Judge Edward M. Chen of the Northern District of California dismissing the complaint with prejudice.

Plaintiffs Doe I through V contend that a new CVS policy has a disparate impact on persons such as themselves with disabilities. No longer are they able to consult with pharmacists who know their medical histories and can make adjustments to prescriptions to avoid ill-effects from an unsafe combination of drugs, they complain, noting that now, in order to obtain “specialty medications,” such as those they take, at the lower “in network” prices, they must have them mailed or dropped-shipped to a CVS pharmacy for pick-up.

Affordable Care Act

 They claim a violation of §1557 of the Affordable Care Act (“ACA”) which incorporates related anti-discrimination provisions of various civil rights statutes.

To maintain a claim under §1557 based on disabilities, Smith said, the plaintiffs must set forth facts constituting a violation of §504 of the Rehabilitation Act, which provides:

“No otherwise qualified individual with a disability...shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Smith said that “[t]he crux of Does’ complaint is that the Program discriminates against them by eliminating various aspects of pharmaceutical care that they deem critical to their health,” and goes beyond the matter of cost, on which Chen focused.

A disparate-impact claim, he pointed out, can survive even where a restriction is facially neutral. He wrote:

“Here, Does have alleged that even though the Program applies to specialty medications that may not be used to treat conditions associated with disabilities, the Program burdens HIV/AIDS patients differently because of their unique pharmaceutical needs. Specifically, they claim that changes in medication to treat the continual mutation of the virus requires pharmacists to review all of an HIV AIDS patients medications for side effects and adverse drug interactions, a benefit they no longer receive under the Program. Thus, the fact that the Program may apply to plan enrollees in a facially neutral way does not necessarily defeat a § 504 claim.”

Chen erred, he said, in finding that the plaintiffs were obliged to put forth allegations that the program impacted them in a unique or severe manner. That is not required under constituting case law, Smith noted, saying that the plaintiffs need only plead “that they were not provided meaningful access to the benefit.”

The jurist declared:

“Construing the allegations in the light most favorable to Does, Does stated a claim for disability discrimination under the ACA. Applying the § 504 framework, Does adequately alleged that they were denied meaningful access to their prescription drug benefit under their employer-sponsored health plans because the Program prevents them from receiving effective treatment for HIV/AIDS.”

ADA Claim

The plaintiffs also the dismissal of their claim under the Americans With Disabilities Act (“ADA”). Smith responded:

“Because Does have not plausibly alleged that their benefit plan is a place of public accommodation, they cannot maintain a claim of discrimination under the ADA.”

The opinion reverses dismissal of a claim under California’s Unfair Competition law to the extent that it is based on a violation of the ACA.

The case is Doe v. CVS Pharmacy, 19-15074.


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