WASHINGTON, D.C. – Pharmacy giant CVS today asked the U.S. Supreme Court to dismiss its challenge to a lower court ruling allowing a group of HIV-positive individuals to sue CVS for discrimination against people with disabilities. CVS had sought to roll back longstanding legal protections against practices that have the effect of denying individuals with disabilities meaningful access to federally funded programs and benefits. Scott Nelson of Public Citizen Litigation Group, who is among the attorneys representing the individuals in the Supreme Court, released the following statement:
“We are delighted that CVS has dropped its misguided effort to curtail disability rights. As a result, the decades of precedents and regulations that protect individuals with disabilities against actions that have discriminatory effects remain standing. We appreciate the efforts of the disability community to persuade CVS to drop its destructive effort to limit the scope of the ACA and the Rehabilitation Act. And we hope that CVS follows through on its commitment to pursue solutions that protect equal access to health care for individuals with disabilities, including those with HIV.”
Background on the Case:
CVS v. Doe began as a challenge to CVS’s restrictions on access to HIV medications under health plans for which it manages pharmacy benefits. The plaintiffs, identified as John Does to protect their privacy, sued under a provision of the Affordable Care Act (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 ACA subsidies or credits.
The ACA’s antidiscrimination 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. The Rehabilitation Act has long been read by administrative agencies and courts, including the Supreme Court, to protect against both intentional discrimination and actions that have the effect of excluding individuals with disabilities.
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 unintended adverse effects of “neutral” policies.
The U.S. Court of Appeals for the Ninth Circuit rejected CVS’s argument in 2020, but the Supreme Court granted CVS’s request to review the case to resolve a disagreement with another court of appeals, which in 2019 had broken with precedent to limit the laws’ protection to intentional discrimination.
After the Supreme Court granted review, Public Citizen Litigation Group joined the team of attorneys representing the Does, led by Los Angeles-based Consumer Watchdog and the law firm Whatley Kallas. Public Citizen served as the principal drafter of the brief on behalf of the Does.
As the brief explains, the laws’ broad language covers exclusionary effects as well as intentional disparate treatment. That protection 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. The federal government, in a brief filed by the Solicitor General of the United States, weighed in strongly supporting our arguments.
Argument in the case had been scheduled for December 7, 2021. In a press release issued yesterday, however, CVS announced that it would withdraw its petition in the Supreme Court. The release 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 CVS “will not pursue the matter further before the Supreme Court.”
Today, CVS filed a stipulation of dismissal that will allow the case to continue in the lower courts.