9^th Circuit Court of Appeals ruled earlier that HIV patients may make a discrimination claim under the Affordable Care Act against CVS for requiring HIV patients to use mail-order pharmacies or to go to a few of CVS’s selected specialty pharmacies, where patients say they are not getting full service

In 2018, AHF warned the U.S. Department of Justice that the then-proposed CVS merger with Aetna would create a monopoly-like behemoth that would harm patients, which appears to be the case here with pharmacy choice

AIDS Healthcare Foundation (AHF), the largest global AIDS organization, filed a brief of amicus curiae with the Supreme Court of the United States earlier today in CVS Pharmacy, Inc. vs. Doe, a case set to be heard and decided by summer 2022.

In December 2020, the U.S. 9^th Circuit Court of Appeals ruled in Doe vs. CVS Pharmacy, Inc. that people living with HIV can state a discrimination claim under the Affordable Care Act against CVS Pharmacy, Inc., for requiring them to use mail-order pharmacies to obtain HIV/AIDS medications or to go to one of a few designated “specialty” pharmacies that are little more than pick-up stations, as part of in-network pharmacy services for private insurance plans. CVS appealed the ruling and the Supreme Court agreed to hear the case. In its brief, AHF asks the Supreme Court to affirm the earlier judgement of the Ninth Circuit.

“For people living with HIV/AIDS, real specialty pharmacies and pharmacists that focus on HIV/AIDS and in-person treatment provide demonstrably superior care than do mail-order pharmacies and retail pharmacies. We believe that CVS’s denial of choice in pharmacy services for HIV/AIDS patients is both wrong and discriminatory,” said Jonathan M. Eisenberg, Deputy General Counsel -- Litigation for AHF.

AHF’s amicus curiae brief focuses on three primary arguments:

1. That U.S. Statutory Law Requires Courts to Protect People Living with HIV/AIDS from Disability Discrimination by Healthcare Providers,
2. That Coerced Use of Mail-Order Pharmacies Is Highly Detrimental to People Living with HIV/AIDS, and
3. That Coercing People Living with HIV/AIDS to Use Mail-Order Pharmacies Is a Disability-Rights Violation, by Both Intent and Impact.

“CVS said to people living with HIV that they can only go to a few of its selected pharmacies and/or be compelled to utilize its PBM’s mail order pharmacies. Patients asserted they weren't getting full service there, which discriminated against them. They wanted to keep their current pharmacies which provide more comprehensive and specialty services,” said Tom Myers, Chief of Public Affairs and General Counsel for AHF. “We filed this amicus brief to support HIV/AIDS patients’ legal arguments in the case before the Supreme Court and to defend patients’ rights and choice in their pharmacy services.”

The December 2020 9^th Circuit Court ruling validated AHF’s earlier warning of the CVS threat to the HIV response back in 2018. See AHF press statement (Nov. 28, 2018) “CVS-Aetna Merger is Bad for HIV Patients.”

AIDS Healthcare Foundation (AHF), the largest global AIDS organization, currently provides medical care and/or services to over 1.6 million individuals in 45 countries worldwide in the US, Africa, Latin America/Caribbean, the Asia/Pacific Region and Eastern Europe. To learn more about AHF, please visit our website: www.aidshealth.org, find us on Facebook: www.facebook.com/aidshealth and follow us @aidshealthcare.

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Real specialty pharmacies and pharmacists that focus on HIV/AIDS and in-person treatment provide demonstrably superior care than do mail-order and retail pharmacies. We believe that CVS’s denial of patient pharmacy choice is both wrong and discriminatory.