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Four HIV Patients File Class Action Lawsuit Against CVS

The plaintiffs, all HIV-positive, claim CVS broke the law by forcing them to pay enormous additional costs.

By Benjamin M. Adams, HIV PLUS MAGAZINE

February 23, 2018…

A handful of vexed HIV patients have filed a class action lawsuit against CVS Health and its subsidiaries, claiming that pharmacy behemoth disregarded both federal and state insurance laws by forcing patients to fill their prescriptions at CVS locations or through CVS' mail order, or dole out thousands of dollars in out-of-pocket costs.

Four plaintiffs, all listed as John Doe, allege that the CVS Caremark benefit plan abruptly stopped covering their prescription costs at certain pharmacies, covertly leading them back to CVS pharmacies and denied them basic pharmacy comforts—such as privacy. The lawsuit was filed on Feb. 16 in the Northern District of California.

“I received no written notice to prepare for this impending policy change,” John Doe One said in the lawsuit. “I had to scramble into action since I only had a seven-day supply remaining.” John Doe One’s pills eventually arrived, but sat in the “baking sun.”

Many patients get their prescription drugs at a CVS location—sometimes the insurance doesn’t go through, sometimes the co-pay assistance programs don’t go through or sometimes the dots are otherwise not connected and the patient is denied a refill. Every time it happens, the stress can be unbearable. Daily HIV antiretroviral combos are designed to be taken daily, and missing your precsribed dosage can worsen your health outcomes. It’s the nature of HIV virus, given that it can mutate and rapidly develop resistance to drugs when days are skipped.

John Doe Two complained that the pharmacy provided no alcove for privacy, which compromised the confidentiality of his diagnosis.

Several of the bullet points of the lawsuit include: patients were alarmed to discover their old pharmacies were out-of-network and that their medications could soar up to $2,000 a month or more, CVS Health added a requirement to its pharmacy benefits that HIV/AIDS patients have to either pick their drugs up at a CVS store or get them delivered to their homes, and that patients weren’t able to opt out of the program.

“CSP only delivers such medications by mail order or mails them to a CVS Pharmacy as a drop shipment location purely for pickup,” the lawsuit reads. “This program threatens HIV/AIDS patients’ health and privacy. If HIV/AIDS patients in those plans do not obtain their HIV/AIDS medications from CSP, then they must either pay more out-of-pocket or pay full-price with no insurance benefits whatsoever—thousands of dollars or more each month—to purchase their medications at an in-network community pharmacy where they can receive counseling from a pharmacist and other services they may need to stay alive.”

Plus, there’s more pressure to enroll. Employers like Amtrak incentivize their employees to enroll in the program. Now Amtrak is listed as a defendant in the lawsuit. “CVS Caremark has effectively denied and continues to deny Class Members access to non-CVS pharmacies and pharmacists by utilizing its discretion and incentivizing employers, such as Amtrak, to make those pharmacies and pharmacists “out-of-network” for HIV/AIDS Medications, or not properly advising enrollees they can elect not to use that program,” the suit continues.

A similar lawsuit was filed in the Central District of California the same day.

During CVS’s major merger with Aetna last fall, patients worried about how it might affect their co-pays and cost of medication. The U.S. Department of Justice isn’t too excited about the merger, either. But CVS Health told its investors that the deal is expected to close later this year. "There are claims that CVS is going to make all the time that the [Aetna] merger is good for the delivery of healthcare for consumers. But the reality is that when you look at CVS Caremark's past conduct in the market, they use their market power to deny consumers the access to their pharmacies of choice. Consumers get far worse healthcare," David Balto, former policy director of the Federal Trade Commission, told Healthcare Dive.

The plaintiffs are represented by Alan Mansfield of Whatley Kallas LLP.

“With CVS' acquisition of AET pending, David Balto, former policy director of the FTC, told Healthcare Dive  that "if CVS has an ounce of common sense, they'll settle this case as quickly as possible,” BioPharma Dive Associate Editor Jacob Bell tweeted.

The lawsuit continues, and if you look at past lawsuits by consumer watchdogs, like the cases brought upon UnitedHealth and Anthem, the lawsuit has teeth and a chance at winning.

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