Federal Court Rules Plaintiffs Adequately Alleged CVS Acted With "Deliberate Indifference" When It Adopted Rx Program That Discriminates Against People Living With HIV, Says Consumer Watchdog

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Apr 19, 2024, 15:44 ET

LOS ANGELES, April 19, 2024 /PRNewswire/ -- Late yesterday the United States District Court for the Northern District of California ruled that four HIV-positive "John Doe" plaintiffs adequately alleged CVS acted intentionally under the "deliberate indifference" standard when it implemented a drug program that discriminates against people living with HIV.

Download the Order here.

The latest ruling comes in a long-running legal battle over civil rights violations relating to a CVS drug program that limits people living with HIV to obtaining their life-saving medications only by mail. The lawsuit alleges that the program cuts off access to knowledgeable pharmacists and other critical benefits and services essential for people living with HIV.

The four HIV-positive Plaintiffs in the case are represented by lawyers for the non-profit Consumer Watchdog and Whatley Kallas, LLP.

In the Order issued last night, Chief Judge for the Northern District of California Edward M. Chen ruled that the allegations were sufficient to establish CVS was on notice that Plaintiffs' civil rights were threatened and that they may seek money damages and an injunction to change CVS's practices. CVS, one of the largest healthcare companies in the world, owns pharmacies throughout the U.S., but also operates as a pharmacy benefit manager, which coordinates pharmacy benefits for people like the John Doe plaintiffs who are enrolled in employer-provided health plans.

Judge Chen also ruled last night that CVS's arguments that its employer clients, not CVS, controlled the prescription drug benefits provided to their employees were ineffective to inoculate CVS from the legal claims.

According to the Order (internal citations omitted):

"… Plaintiffs sufficiently allege that Defendants implemented The Program by "utiliz[ing] its discretion" under its contracts with employers and 'offer[ing] financial inducements to plan sponsors.' 'As such, CVS effectively controls and directs the pharmacy benefits of such plans. Furthermore...CVS Caremark has an ongoing ability to alter plan terms and the prescription drug benefits provided thereunder to Class Members.' CVS also reserves the right to alter pharmacy benefits at any time. These facts sufficiently allege that the Defendants have control over The Program."

Download the Third Amended Complaint here.

As noted by the court, under civil rights laws incorporated into the federal Affordable Care Act, “intentional discrimination may be established by a showing of ‘deliberate indifference.’ Duvall v. Cnty. Of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)." To allege “deliberate indifference,” a plaintiff must establish the defendant’s “[1] knowledge that a harm to a federally protected right is substantially likely, and [2] a failure to act upon that likelihood.”

In addition to money damages, the lawsuit seeks a nation-wide injunction to bar CVS from continuing to implement the mandatory mail delivery program for HIV medications.

The Ninth Circuit Court of Appeals previously held that Plaintiffs "adequately alleged that they were denied meaningful access to their prescription drug benefit, including medically appropriate dispensing of their medications and access to necessary counseling." Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 1211 (9th Cir. 2020). The Supreme Court granted certiorari, but Defendants withdrew their petition under pressure from disabilities rights groups. CVS Pharmacy, Inc. v. Doe, 210 L. Ed. 2d 990, 141 S. Ct. 2882, 2883 (2021).

Most other major health insurance companies in the U.S. now allow members to opt out of mail-order-only delivery of HIV medications because of numerous settlements achieved by attorneys for Consumer Watchdog and Whatley Kallas, LLP.

If you are prescribed medications to treat or prevent HIV and are enrolled in a healthcare plan where your pharmacy benefits are coordinated by CVS, or if you are interested in more information about this lawsuit, please contact Consumer Watchdog here and let us know about your experience.

The case is John Doe One, et al. v. CVS, et al., No.: 3:18-cv-01031 and is pending in federal district court in San Francisco.

Consumer Watchdog is a non-profit and non-partisan public interest organization. Visit us on the web at https://www.consumerwatchdog.org/

Whatley Kallas, LLP attorneys have earned a national reputation—based on trust, respect, demonstrated commitment and tangible results—in connection with their representation of healthcare providers and members of the organized medicine community. Visit Whatley Kallas, LLP on the web here: https://www.whatleykallas.com/

SOURCE Consumer Watchdog