WhatleyKallas, Nonprofit Consumer Group Go After CVS for Mandatory Mail-Order Program
By Kristen Rasmussen, THE NATIONAL LAW JOURNAL
February 26, 2018
National health care law firm WhatleyKallas is once again teaming up with Consumer Watchdog to bring lawsuits, this time against CVS Health, over mandatory mail-order drug programs that allegedly discriminate against HIV/AIDS patients.
Earlier this month, Edith Kallas and Alan Mansfield of WhatleyKallas and the nonprofit consumer advocacy group sued CVS Health in the U.S. District Court for the Northern District of California on behalf of four anonymous plaintiffs. The suit, which seeks class action certification, claims that the pharmacy giant’s insurance plan violates plaintiffs’ privacy by forcing them to buy their HIV/AIDS medication at retail CVS stores or have them mailed to their home. A nearly identical suit was filed the same day in California’s Central District trial court.
“This program threatens HIV/AIDS patients’ health and privacy,” according to the complaint. “If HIV/AIDS patients in [health plans where CVS Caremark controls pharmacy benefits] do not obtain their HIV/AIDS medications from [Caremark California Specialty Pharmacy], 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.”
A spokesman for CVS described the allegations as “both factually and legally incorrect.”
“Our highest priority is assuring patient access to clinically appropriate drugs while managing overall health care costs for our clients, and we offer our clients multiple clinical tools and pharmacy network options targeted at achieving both of these goals,” according to an email from the spokesman. ”This includes an option for clients to allow their members with HIV to fill their HIV-related medications at in-network local independent pharmacies and other national chain retail pharmacies.”
The complaint alleges the program violates the Affordable Care Act and federal laws that safeguard HIV/AIDS patients’ health and privacy. In addition to class certification, it seeks damages and a court order preventing CVS from continuing the mandatory mail-order program.
In the last few years, WhatleyKallas and Consumer Watchdog have gone after health insurers—including United Healthcare Insurance Co., Anthem Insurance Cos. Inc., Cigna and Aetna Inc.—for the same practice. All of the suits have settled, with at least two companies, United and Anthem, agreeing to allow patients to opt out of the mail-order program.
Ironically, the settlement with Aetna recently resulted in another wave of breach of privacy lawsuits against the health insurer after notices relating to the settlement were mailed last summer in envelopes with glassine windows that revealed thousands of HIV patients’ names and conditions. A $17 million payment to settle claims filed in federal court in Philadelphia currently is awaiting judicial approval.
Kallas, Mansfield and Consumer Watchdog are representing a John Doe plaintiff against Aetna in a suit stemming from the improper disclosure in U.S. district court in Northern California.
CVS has until mid-March to respond to the suits.
Earlier this month, the U.S. Department of Justice asked CVS and Aetna for more information on CVS Health’s bid to buy the Connecticut-based health insurer under the antitrust Hart-Scott-Rodino Act, according to a federal SEC filing.
This story has been updated to include comment from a CVS spokesman.