CVS Health is set to continue a contentious legal battle following a federal judge's decision to deny the company's motion to dismiss a proposed class action lawsuit. The suit accuses CVS of discriminating against people with HIV through its mandatory mail-order medication program.

U.S. District Judge Edward Chen, presiding in San Francisco, ruled against CVS, highlighting the company's awareness of potential discrimination concerns raised by plaintiffs who sought to opt out of the program.

The litigation, initiated in February 2018, centers around the practices of CVS Caremark, the pharmacy benefit manager division of CVS Health. The plaintiffs allege that CVS Caremark and associated employer health plans unjustly forced them to obtain necessary HIV medications exclusively through CVS Caremark’s specialty pharmacy. This requirement, they argue, restricts their access to community pharmacies and deprives them of critical in-person pharmaceutical care and counseling, which are crucial for managing the complex medication regimens typical in HIV treatment.

Judge Chen's decision emphasizes that CVS had sufficient notice from numerous communications that the plaintiffs required accommodations to opt out of the mail-order program. Despite CVS's defenses, Chen pointed out that the company could feasibly coordinate with employers to offer such opt-outs, dismissing the argument that the responsibility lay solely with the employer health plans.

The lawsuit notably accuses CVS of violating the anti-discrimination provisions of the Affordable Care Act (ACA). The 9th U.S. Circuit Court of Appeals revived the lawsuit in 2020 after it was initially dismissed by Judge Chen, who originally found that the mail-order program did not explicitly target HIV patients. However, the appeals court ruled that the program's effects could still be discriminatory.

The Affordable Care Act (ACA), often referred to as Obamacare, incorporates significant anti-discrimination measures designed to ensure equitable access to health care and to prevent unfair treatment based on health status or other protected characteristics. These provisions are fundamental to promoting a more inclusive healthcare system.

One of the core components of the ACA's anti-discrimination efforts is Section 1557. This section explicitly prohibits discrimination in health programs or activities that receive federal financial assistance, are administered by the federal government, or are under entities established under Title I of the ACA. Discrimination is forbidden on the grounds of race, color, national origin, sex, age, or disability.

The application of Section 1557 to the CVS case is particularly relevant because it extends these protections to health insurance and the various entities involved in healthcare delivery, including pharmacies and pharmacy benefit managers like CVS Caremark. Under the ACA, these entities are required to provide services without discrimination based on individuals' medical conditions.

In the context of the lawsuit against CVS, the plaintiffs argue that the mandatory mail-order program for HIV medications constitutes discrimination based on disability (HIV status). They claim that this program denies them full and equal access to health services guaranteed by the ACA. Specifically, they contend that the mail-order requirement restricts their ability to interact directly with pharmacists who are knowledgeable about HIV treatment, a critical component of effective disease management.

The anti-discrimination provisions of the ACA are aimed at eliminating barriers to care like these, which can exacerbate health disparities among vulnerable populations. By requiring that all individuals be treated equitably, the ACA seeks to ensure that everyone, regardless of their health status or other demographic factors, has access to necessary healthcare services without undue hardship or discrimination.

CVS attempted to escalate the matter to the U.S. Supreme Court in 2021 but later withdrew the appeal, choosing instead to continue its defense in the lower courts. This decision followed a brief from the U.S. Justice Department that supported the plaintiffs' position, suggesting the existence of significant evidence of discrimination.

In response to the ongoing lawsuit, CVS stated, "Our CVS Specialty network option is not discriminatory, and we continue to vigorously defend against this complaint." Meanwhile, advocacy groups representing the plaintiffs, such as Consumer Watchdog, argue that the mail-order program severely limits access to knowledgeable pharmacists and other essential support services for people living with HIV.

The plaintiffs are now seeking monetary damages and are pushing for an injunction that would compel CVS to alter its practices, thereby ensuring better access to medications and support for individuals with HIV.