CVS Health has asked the U.S. Supreme Court to drop its review of a landmark disability rights case, after a flood of complaints highlighted the appeal's potential to reverse legal protections barring disability discrimination.
The lawsuit seeking class-action status, filed by a group of individuals living with HIV, will now proceed in the U.S. District Court for the Northern District of California. The Ninth Circuit U.S. Court of Appeals previously ruled that five patients' claims of disparate impact under federal disability law could proceed. By asking the Supreme Court to end its inquiry, CVS no longer has the opportunity to redefine federal law, although the case against the group of patients will continue.
The 2018 case alleges that CVS' blanket requirement that all customers receive prescriptions from a CVS mail-order pharmacy or retail pharmacist threatens the health and privacy of individuals living with HIV and violates federal law. The patients all receive their drug benefits through their employers, who have contracted with CVS to administer their claims.
CVS referred questions about the case to a news release it issued Thursday that touted a new partnership with four disability rights organizations, including the National Council on Independent Living and The Judge David L. Bazelon Center for Mental Health Law.
"Our agreement to pursue policy solutions in collaboration with the disability community will help protect access to affordable health plan programs that apply equally to all members," David Casey, senior vice president of workforce strategies and chief diversity officer at CVS, said in a news release.
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CVS had asked the Supreme Court to review the case in March, questioning whether federal discrimination law and the Affordable Care Act protect individuals who have been harmed by policies that are not intentionally discriminatory. In court filings, the retail giant argued that a finding of discrimination through disparate impact would "upend insurance plans and skyrocket healthcare costs nationwide." The Justice Department, American Civil Liberties Union, AIDS Healthcare Foundation and other groups all threw their support behind the patients, writing that pharmacy benefit manager's patient-steering practices were illegal.
The case had the potential to redefine a precedent that had been set in 1985. In that case, the Supreme Court found that "it doesn't make sense to limit disability rights protections to intentional discrimination because the nature of disability discrimination is such that, so much not based on intent per se, but based on thoughtlessness," said Jennifer Mathis, director of policy and legal advocacy at Bazelon.
That case defined that impact rather than intent mattered under Section 504 of the Rehabilitation Act, which is an extension of the ACA.
The nature of the company's partnership with the Bazelon Center and other groups "will become clearer as we move forward," Mathis said.
Through this new initiative, CVS is looking to figure out how to move forward with this issue without involving the courts, said Lindsay Baran, policy director at the National Center on Independent Living. The organization has been talking with CVS about this case since late October and hopes to continue conversations about this and other disability access issues the company's policies present going forward, Baran said.
"We were able to really show them how out of line this case was with their expressed commitment to the disability community," Baran said. "A lot of disability discrimination is due to policies and practices that seem neutral, and I think that's part of what made this case so dangerous."