HIV-Positive Individuals Seek to Certify a Class Action in Discrimination Case Against CVS, Says Consumer Watchdog

Internal Documents Show CVS Adopted an HIV Prescription Drug Mail-Order Program to Increase Revenue Despite Health Risks According to the Lawsuit

LOS ANGELES, Nov. 4, 2024 /PRNewswire/ -- CVS was aware of the threat its prescription drug mail-order program posed to individuals living with HIV yet still chose to implement the program in order to increase its revenue, according to a legal brief to certify the case as a class action filed in federal court on Friday afternoon.

Download the legal brief here.

According to evidence submitted with the brief, "Defendants admit that the Program was designed to limit member choice and increase revenue by up to $69 million by preventing 'leakage' of HIV/AIDS Medications, the euphemism Defendants used to describe their loss of revenue . . . when [prior to the mail-order program] a member could purchase HIV/AIDS Medications from non-CVS pharmacies."

The lawsuit alleges that the CVS drug program is discriminatory and cuts off access to knowledgeable pharmacists and other critical benefits and services essential for people living with HIV.   

CVS Health Corporation, 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 (or were) enrolled in employer-provided health plans. 

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

In April 2024, the United States District Court for the Northern District of California ruled that the four HIV-positive "John Doe" plaintiffs adequately alleged CVS acted intentionally under the "deliberate indifference" standard because it knew the Program could harm people with HIV.

According to the legal brief filed on Friday, around the time the mail-order program was adopted, CVS prepared an internal PowerPoint concerning litigation (brought by Consumer Watchdog and Whatley Kallas, LLP) over the health impacts of other health care companies' HIV mail-order programs and resulting media coverage. 

Plaintiffs contend that CVS was aware that providing HIV medications only by mail leads to missed doses and loss of essential services, which cause significant health risk to people living HIV. According to the legal brief filed Friday:

Yet another internal PowerPoint reported that "[s]pecialty satisfaction scores are lagging for members who fill HIV medications at CVS Specialty," and then went on to summarize many of the same member health concerns raised in this lawsuit: poor "knowledge of HIV therapies among [r]etail pharmacy staff," shipping delays, delivery errors, and concomitant stress and frustration among members. Defendants were also aware that plan sponsors involved in certain industries, including the "airline industry, entertainment, [and] retail" may have particular concerns over the Program due to delivery problems when members are traveling for work. In fact, John Doe Seven, a flight attendant, has experienced these precise problems, resulting in missed doses and increased health risk. 

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 CVS withdrew their petition under pressure from disability rights groups. CVS Pharmacy, Inc. v. Doe, One, 142 S. Ct. 480 (2021).

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 the United States District Court for the Northern District of California before Chief Judge Edward M. Chen. 

Plaintiffs in the action are represented by attorneys for Consumer Watchdog and Whatley Kallas, LLP.

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