In a case to be heard by the United States Supreme Court this December, CVS Health corporation is attempting to severely limit the reach of two landmark civil rights laws providing people living with disabilities “meaningful access” to benefits.
CVS’s position is out of step with 35 years of law and would “return the nation to an era when individuals with disabilities were routinely excluded from access to public life,” according to a brief filed Friday by the non-profit organizations Consumer Watchdog and Public Citizen and the law firm Whatley Kallas, LLP.
Download the brief here: https://tinyurl.com/b3frvx7p.
The case, CVS v. Doe (No. 20-1374), was brought by five HIV-positive “John Doe” plaintiffs challenging CVS’s program for medications to treat HIV and other disabilities. CVS, one of the largest healthcare companies in the world, owns pharmacies throughout the U.S., but also operates as a “pharmaceutical benefit manager” that coordinates pharmacy benefits for people like the John Does who are enrolled in employer-provided health plans.
People living with HIV, the virus that causes AIDS, have historically faced discrimination throughout the healthcare system. Section 1557 of the Affordable Care Act, one of the laws at issue in the case, is a key provision barring health insurance plans that have the effect of reducing access to benefits for people with disabilities such as HIV. Section 1557 re-adopts, and applies to health insurance, the prohibition of exclusion of individuals with disabilities from federally funded programs put in place under Section 504 of the Rehabilitation Act in 1973.
CVS’s program allows HIV-positive people to access their medications only by mail-order—cutting off access to pharmacists and other benefits essential for people living with HIV—while continuing to make the same benefits available to others.
Though there is currently no cure for HIV, the illness can be effectively treated with “antiretroviral medications.” But use of those medications requires careful oversight and quick transition to new ones as the virus develops resistance. Pharmacists play a critical role in ensuring stable access to medications and counseling for people living with HIV. CVS’s program, plaintiffs allege, causes a “loss of meaningful access” to pharmacy benefits and threatens the health and privacy of people living with HIV.
In the case, CVS has argued that Section 504 and Section 1557 only cover intentional discrimination, but not unintentional discrimination that has the effect of denying or excluding an individual from a benefit provided to others. Both laws apply to programs and activities receiving “Federal financial assistance.”
CVS’s position is at odds with the plain language of the statute and a prior Supreme Court decision under then-Justice Thurgood Marshall, as wells as decades of unanimous decisions by the nation’s Courts of Appeals. The Marshall opinion recognized that such “effects-based” protections were designed by Congress to address the fact that discrimination against people living with disabilities is most often the result of “thoughtlessness,” “indifference,” and “benign neglect” rather than strictly intentional activity.
For example, doorsteps typically do not reflect an intent to discriminate against individuals with disabilities. But, as the brief filed Friday notes, “if the steps that lead to the office where beneficiaries of a program must apply to participate, and there is no other access, persons who use wheelchairs are excluded from participation in the program and denied its benefits solely by reason of disability.” In the case before the Supreme Court, CVS’s Program applies to people solely because of their HIV status and prevents meaningful access to a benefit available to others, regardless of whether of CVS’s actions were motivated by an intent to discriminate.
With the lawsuit, the John Doe plaintiffs seek only to undo the Program’s disability-based restrictions and gain equal access to the same benefits others already have.
Most other major health insurance companies in the United States now allow members to opt out of mandatory, mail-order-only delivery of HIV medications. As noted in the brief filed Friday, CVS “is out of step with the American healthcare system.”
The case was filed in federal court in San Francisco in 2018 by attorneys for Consumer Watchdog and Whatley Kallas, LLP.
Oral argument in the action is set in the case for December 7, 2021.