CVS v. Doe

CVS, as prescription benefit manager for health insurance plans subject to the requirements of the Affordable Care Act, instituted a “specialty medications” program under which certain medications are available only by mail order. Patients who need these drugs are no longer able to consult with pharmacists about them. Among the drugs affected are those used to treat HIV. Because HIV drug treatment requires careful monitoring for interactions and development of resistance, lack of access to pharmacists imposes particular hardship on HIV patients.

In this case, a class of HIV-positive individuals (identified as John Does) sued CVS under Section 1557 of the Affordable Care Act (ACA), which provides that individuals may not be excluded from, denied benefits of, or subjected to discrimination under federally subsidized health plans on grounds of disability. Section 1557 is based on and incorporates in part the requirements of Section 504 of the Rehabilitation Act, which similarly prohibits disability discrimination in any program conducted or funded by the federal government. In 1985, the Supreme Court concluded in a case called Alexander v. Choate that Section 504 prohibits both intentional discrimination and practices and policies that have the effect of denying individuals with disabilities meaningful access to federally funded programs. In the case against CVS, the U.S. Court of Appeals for the Ninth Circuit applied that standard to Section 1557 of the ACA and concluded that the Doe plaintiffs stated a claim that CVS’s policy denied them meaningful access to their pharmacy benefits on grounds of disability.

CVS petitioned the Supreme Court for review, arguing that Section 504 and Section 1557 prohibit only intentional discrimination against individuals with disabilities. The Supreme Court accepted the case. CVS’s argument would roll back decades of protections for individuals with disabilities and would deny them the right to reasonable accommodations of policies that adversely affect those with disabilities if those policies were not specifically aimed at discriminating against them.

Public Citizen Litigation Group joined Consumer Watchdog and the law firm Whatley Kallas as co-counsel for the Does in the Supreme Court. The brief explains that the language of both Section 1557 and Section 504 prohibits actions that have the effect of excluding individuals with disabilities regardless of whether the exclusion is intentional, and that Section 1557’s enactment in 2010 incorporated decades of congressional, judicial, and administrative action confirming that reading of the statutes.