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CVS Drops Challenge to HIV Patients, but the Fight Against Disability Discrimination Continues

CVS dropped its challenge to a class action lawsuit filed by HIV/AIDS patients alleging that CVS’s policies discriminate against them by requiring that they use mail or local CVS retail pharmacies to keep lower drug prices, regardless of the impact that this could have on their care. Exploiting people living with disabilities will still continue, however, as long as corporations dictate drug production, prices, and access.

K.S. Mehta

November 13, 2021
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Matt Rourke, AP

The Supreme Court was slated to hear arguments on December 7 for CVS v. Doe, a case that would determine whether CVS pharmacies can restrict access to certain HIV medications. CVS does this by requiring patients to use the mail or a local CVS retail pharmacy to obtain in-network rates, or discounted drug prices negotiated by insurance companies with drug manufacturers. The patients who brought the suit alleged that CVS’s policies discriminate against them because the insurance plans would pay in-network insurance rates for specialty drugs — defined as those that are “high cost, high complexity, and/or high touch,” and generally used to treat chronic conditions — only if they are delivered by mail or drop-shipped to a local CVS store for pickup.

While restricting prescriptions for people living with HIV/AIDS to mail order may not seem like a big deal, it could have devastating impacts on patients’ treatment regimens. Antiretroviral medications work by suppressing the replication of HIV to lower the amount of plasma HIV-1 RNA in a person’s blood. The traditional guidance is that people living with HIV should take their medication 95 percent of the time or more to keep the virus at undetectable levels in the bloodstream — though current guidance suggests that even 85 to 90 percent adherence yields similar results. While viral loads stay undetectable, there is virtually no risk of HIV transmission. Therefore, ensuring that those living with HIV/AIDS can regularly stay on their antiretroviral therapy and keep their viral loads undetectable is critical to ending new infections, and therefore bringing the HIV pandemic to an end worldwide.

Mail-order pharmacy programs can delay the process of beginning treatment or interrupt continued treatment since it takes longer for these programs to receive, process, approve, and mail the requested drugs. Even if the prescription is quickly processed through the pharmacy, funding cuts to the postal service have delayed delivery of critical medications, forcing people to ration or indefinitely forgo their medications. If people living with HIV cannot receive their medications to start treatment, they can still transmit it to other people. For people who have been consistently taking antiretroviral medications to suppress their viral loads, interruptions in treatment can lead to drug resistance, rendering a previously effective medication useless and forcing them to find a new medication.

On top of contending with the time lag, patients would have to pay higher out-of-network prices to go to specialty pharmacies or community pharmacies to pick up their prescriptions. This is frustrating for patients, because pharmacists at community or specialty pharmacies have strong personal relationships with these patients, are familiar with their medical histories as well as their medication dosing and adjustments, and regularly communicate with the patient’s care team. This issue encompasses not only patients living with HIV/AIDS but also anyone who needs any kind of specialty medication. Many other conditions are also treated primarily with specialty drugs, such as many immune conditions. During a deadly pandemic, it’s more critical than ever that people living with immune conditions (a) get their medications in a timely fashion, (b) maintain relationships with pharmaceutical staff who know their medical histories and regimens and can provide them the best care possible, and (c) don’t have to pay more for already ridiculously expensive medications.

The mail-order requirement that CVS was trying to enact would have violated specific provisions of the Patient Protection and Affordable Care Act (ACA) and the Rehabilitation Act of 1973, which prohibits discrimination against people with disabilities in programs that receive federal financial assistance, and set the stage for the enactment of the Americans with Disabilities Act. CVS was trying to win its case on the argument that discrimination must be intentional to violate Section 504, a perspective that would exclude disparate impact cases, in which a policy appears neutral but unintentionally discriminates against a protected class of people, in this case people living with HIV/AIDS. The decision on the case also would have attempted to address whether the ACA’s inclusion of clause 504 of the Rehabilitation Act, which prohibits protected-class discrimination, allows patients to challenge terms and conditions of their healthcare plans, a decision that would have held back insurers from setting plan restrictions and pricing.

CVS contended that mail-order delivery is required for all specialty drugs to receive in-network prices, so any discrimination against HIV/AIDS patients is unintentional. The company argued that if patients can receive the same medications at in-network prices from out-of-network pharmacies, then “health care networks as we know them will collapse and costs will rise for everyone.” The case is no longer being heard by the Supreme Court, because CVS and the anonymous patients filed a stipulation of dismissal on November 11. Stipulations of dismissal are used to discontinue a case once the parties have settled it, or if for any reason a party decides to withdraw a claim. It is likely due to the extent of public backlash, particularly by disability justice groups, that CVS abandoned their case weeks before the oral argument was to be heard. However, CVS did not even address whether it intends to discontinue its policy of distributing HIV medication exclusively by mail in their press release, instead touting claims of partnering with disability rights groups to assure equal access to healthcare. The threat of exploitative practices used by pharmaceutical corporations, such as patient steering, will not disappear so quickly.

Though CVS ultimately abandoned its challenge to the class action lawsuit and the patients also agreed to dismiss the case, this case is just one attack by large, powerful pharmaceutical corporations on people with disabilities. Other exploitative practices still loom large as a threat, such as patient steering, in which massive corporations use their pharmacy middleman subsidiaries to force people to buy the most expensive class of drugs from the businesses’ own mail-order pharmacies. These middlemen, called pharmacy benefit managers, collaborate with insurance companies or government programs like Medicare and Medicaid to negotiate rebates with pharmaceutical companies, decide what drugs are covered, and determine how much to reimburse pharmacies that dispense drugs as part of their health plans. Pharmacy benefits managers frequently compete directly with the retail pharmacies whose reimbursements they control, and they have been increasingly refusing to cover specialty drugs acquired at specialty pharmacies, for example those at oncology centers or HIV/AIDS clinics.

CVS alleges that because specialty drugs have special shipping, storage, and administration requirements; treat rare conditions; or are very expensive, that they must switch to a mail-order pharmacy model to keep costs down. Though CVS has dropped this specific suit and the immediate threat to disability discrimination has temporarily been evaded, pharmacy benefit managers will likely continue trying to restrict access to specialty care pharmacies that are able to provide more targeted care to increase their profits. As large retail pharmacies like CVS and Walgreens will compete with them to increase profit margins, they may seek out new ways to resuscitate their suit or otherwise exploit loopholes to make patients choose between quality care and lower drug prices.

This is just one example of the irrationality intrinsic to the system of healthcare under capitalism. Patients and healthcare workers should be able to collectively decide on the production of critical medications in a way that serves people over profits, and distribute the medications in ways that make sense for patients, not corporations. Mail-order pharmacies can be an extremely useful tool for some patients, but their usage shouldn’t be forced just so either CVS or pharmacy benefit managers can increase their profits. People living with HIV/AIDS have long fought the control that pharmaceutical corporations have had over their lives, for example, demonstrating in 1987 at the busy intersection of Wall Street and Broadway to disrupt the morning rush hour and to protest the Food and Drug Administration and Burroughs Wellcome, the pharmaceutical company that manufactured the AZT, the only approved AIDS drug at the time and one that was too expensive for most people living with AIDS to afford. More recently, in 2019, a coalition called PrEP4All tried to fight back against the corporation Gilead for postponing development of a safer HIV-prevention drug so that it could continue to gain monopoly profits from its older combination HIV drugs, before those drugs went off patent and faced generic competition.

The militancy of people with disabilities impacted by the greed of pharmaceutical corporations must be coupled with militant working-class methods to fight for universal health care under the control of workers and patients, put toward the collective needs of society. We cannot celebrate that one suit threatening people with disabilities was dropped; we must continue to denounce the efforts of pharmaceutical corporations to further degenerate abysmal health care options so that they can generate more profits, and do so from where we have the most power: from our workplaces.For example, CVS pharmacy benefits management grew 9 percent to $39.05 billion, helped by more pharmacy claims and growth in pricey specialty drugs and net income soared 30 percent to $1.59 billion. At the same time, workers haven’t seen significant increases in wages and are instead being overworked and feeling mentally drained, in some cases being forced to fill a prescription every minute and a half in an average 13-hour shift. Of course, they aren’t seeing any of the money that CVS is using their labor to generate. Fighting for better working conditions, higher wages, and increased staffing can (and should) also be linked to the fight for better patient care and against disability discrimination in medication dispensation practices. Especially during the current uptick of strikes, from Striketober into Strikevember, this is one way for pharmaceutical workers and patients to fight for their collective interests.

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K.S. Mehta

K.S. Mehta is a research assistant in New York City.

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