A group of patients with HIV and AIDS gained another ally in their class-action against CVS Health's Caremark on Thursday, with the AIDS Healthcare Foundation telling the U.S. Supreme Court that the pharmacy benefit manager's patient steering practices violated federal disability law.
AHF's amicus brief supports a suit at least five patients brought against the retail health giant in 2018, claiming the company's blanket requirement that all customers receive prescriptions from a CVS mail-order pharmacy or retail pharmacist threatened their health and privacy. The patients receive their drug benefits through their employers, which have contracted with CVS to administer their benefits. They argue that they are being disproportionately impacted by a CVS requirement that applies to all plan participants.
The Supreme Court is expected to hear arguments in December.
"For people living with HIV/AIDs, real specialty pharmacies and pharmacists that focus on HIV/AIDS and in-person treatment provide demonstrably superior care than do mail-order pharmacies and retail pharmacies," Jonathan Eisenberg, deputy general counsel for litigation at AHF, said in a news release. AHF is a not-for-profit provider that specializes in care for individuals with Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome. "We believe that CVS' denial of choice in pharmacy services for HIV/AIDS patients is both wrong and discriminatory."
CVS forcing individuals to receive their medications through the mail or from a specific pharmacy is a "cruel and potentially deadline" cost-saving measure that results in inferior care and worse health outcomes, AIDS Healthcare Foundation wrote in a brief. The lifetime cost of treating the illness is $500,000 per person, according to the latest data from the Centers of Disease Control and Prevention. The group pointed to a 2012 report by Walgreens Co. that studied 14,000 people living with HIV/AIDS across seven states to find that individuals who visited HIV-focused specialty pharmacies achieved the best outcomes.
In addition to lacking the specialization needed to manage the disease, AHF alleged that in at least one instance CVS ran out of medications, and referred the patient to visit the not-for-profit provider for a free short-term supply.
"AHF was able to provide that crucial care to the patient, but the incident exposes serious flaws in CVS's business model and how it discriminates against people with HIV/AIDS, abandoning these patients to fend for themselves and to rely on the kindness of strangers in moments of need created by CVS," the amicus brief says.
The case tests antidiscrimination protections offered under the Affordable Care Act, which expanded insurance access for many HIV/AIDS patients for the first time, according to the Kaiser Family Foundation.
CVS "abhors" discrimination on the basis of disability, a spokesperson wrote in an email. They noted that AHF owns a specialty pharmacy.
"Our PBM offers clients numerous clinical tools and pharmacy network options and each client selects the options that best meet its benefit plan objectives," the spokesperson said. "In this case, restriction on plaintiffs' specialty medications applied equally to more than 300 drugs on the specialty drug list and to all plan members, not just patients with HIV/AIDS."
AHF is not the first group to file an amicus brief on these patients' behalf. At least six other organizations including the American Civil Liberties Union, National Health Law Program and Disability Rights Advocates have also written to the Supreme Court about this case.