Public Citizen News / November-December 2021
By Scott Nelson
This article appeared in the November/December 2021 edition of Public Citizen News. Download the full edition here.
Public Citizen Litigation Group played a leading role this fall in defending the rights of individuals with disabilities in a case before the U.S. Supreme Court, where pharmacy giant CVS sought to roll back longstanding protections against disability discrimination. In an unusual development, less than a month before the case was to be argued (and as Public Citizen News was going to press), CVS backed down. In a press release, CVS announced that it would withdraw its appeal to the Supreme Court in the face of outcry from disability rights groups and legal briefs spearheaded by Public Citizen. Withdrawal of the appeal will leave in place legal protections against corporate and government policies that have the effect of excluding for individuals with disabilities from access to publicly funded programs.
The case, CVS v. Doe, involves the scope of protection against discrimination on the ground of disability under two federal statutes, the Rehabilitation Act of 1973 and the Affordable Care Act (ACA). Both laws have for many years been understood to prohibit both intentional discrimination and practices that have adverse effects on individuals with disabilities—such as architectural barriers like steps and curbs. In the Doe case, however, pharmacy giant CVS asked the Supreme Court to limit the laws to intentional discrimination. Because most disability discrimination involves more subtle practices, such as the failure to accommodate the needs of individuals with disabilities, CVS’s position would have gutted the protections offered by these laws.
The case began as a challenge to the way that CVS, in its role as pharmacy benefits manager for employer health plans, requires individuals with HIV to obtain the antiviral medications that they need. CVS makes those individuals, unlike most plan participants, obtain their drugs through mail-order delivery either to their homes or to drop boxes in certain CVS pharmacies. The result is that HIV-positive individuals are denied access to the assistance of professionally trained pharmacists, which is critical to the management of their treatment.
Because HIV infection is a disability under federal antidiscrimination laws, a group of HIV-positive individuals—identified as “John Does” to protect their privacy—sued CVS in federal court in California claiming that CVS’s policy discriminates against them on grounds of disability. They invoked a provision of the ACA that provides that no one may be excluded, denied benefits, or otherwise subjected to discrimination on grounds of disability under any health care program that receives federal financial benefits, including subsidies or credits under that law. That ACA provision, in turn, incorporates the protections of an earlier law, the Rehabilitation Act, which similarly protects individuals with disabilities against being excluded from, denied benefits of, or otherwise discriminated against under any federally funded program.
Although other pharmacy benefits companies that faced similar lawsuits entered into settlements allowing HIV-positive individuals to opt out of mail-order-only delivery of HIV medications, CVS fought the lawsuits. It argued that it did not intend to discriminate against HIV-positive individuals on grounds of disability and that the ACA and Rehabilitation Act do not protect people with disabilities from the unintended adverse effects of “neutral” policies.
CVS’s argument was contrary to how courts and federal agencies have interpreted the law for decades. In 1985, the U.S. Supreme Court recognized that the Rehabilitation Act, to achieve its purposes of eliminating the barriers that prevent individuals with disabilities from fully participating in society, must cover practices that have the effect of denying individuals with disabilities meaningful access to benefits available to others, even in the absence of intentional discrimination. Lower courts, as well as federal agencies responsible for enforcing protections against disability discrimination, adopted that standard.
Based on those precedents, the U.S. Court of Appeals for the Ninth Circuit ruled in 2020 that the Does’ case against CVS could proceed. In 2019, however, a different federal court had broken with precedent and ruled that the ACA and Rehabilitation Act cover only intentional discrimination. To resolve that disagreement among the courts, the Supreme Court granted CVS’s petition asking it to review the case.
After the Supreme Court granted review, Public Citizen Litigation Group joined the team of attorneys representing the Does, which includes the Los Angeles-based organization Consumer Watchdog and the law firm Whatley Kallas. Public Citizen served as the principal drafter of the brief on behalf of the Does.
Filed in mid-October, the brief explains that the laws’ broad language covers exclusionary effects as well as intentional disparate treatment. That protection, it explains, is particularly important in the area of disability rights, because overt discrimination (such as policies expressly denying benefits to people using wheelchairs) is less common than obstacles (such as stairs) that unintentionally deny access to individuals with disabilities. As the brief points out, CVS’s position, by its own admission, would provide that universities could enforce no-beard policies against African American men with medical conditions that prevent shaving, that preschools could refuse to accommodate dietary needs of kindergartners, and that the federal government could drop its court-ordered efforts to redesign U.S. currency to make it accessible to individuals with visual impairments.
The federal government, in a brief filed by the Solicitor General of the United States, weighed in strongly supporting the arguments made in the Does’ brief. Meanwhile, CVS, seemingly oblivious to the radical implications of the positions taken by its attorneys, initially responded to criticisms and calls for a boycott by disability rights groups by claiming it “ha[s] always and will continue to strongly support essential and foundational legal protections for people with disabilities.”
Then, in a press release issued November 10, 2021, CVS announced that it would withdraw its petition before the Supreme Court because of pressure from disability rights groups. The release, issued jointly with disability rights organizations the American Association of People with Disabilities, the Bazelon Center for Mental Health Law, the Disability Rights Education and Defense Fund, and the National Council on Independent Living, states that CVS will pursue “policy solutions in collaboration with the disability community [that] will help protect access to affordable health plan programs that apply equally to all members,” and that CVIS “will not pursue the matter further before the Supreme Court.”