On The Docket
David B. Brushwood, BSPharm, JD
The Affordable Care Act (ACA) incorporates the anti-discrimination provisions of various federal laws, including discrimination on the basis of disability. Persons with disabilities must be given meaningful access to benefits of any health program that is receiving federal funding, and reasonable accommodations may need to be made to provide meaningful access. A federal court in California recently reviewed a lawsuit brought by eight patients living with HIV/AIDS against two PBMs and three affiliated pharmacies.
Background
The patients challenged a health program’s requirement that the patients receive their HIV/AIDS medications either by mail or by pickup at an in-network pharmacy. The patients contended that this requirement raises “numerous privacy and personal liberty concerns.” They alleged that they “paid thousands of dollars out-of-pocket each month to purchase medications at their local retail pharmacy of choice.”
One patient explained, “At my retail specialty pharmacy, they have a little alcove for privacy. I can take my medications out and match it with a list I have of all my drugs. I can meet with my pharmacist and explain any changes I have felt and ask any questions I have. At [the in-network pharmacy], I am within hearing distance of everyone waiting in line, including many people who do not have HIV/AIDS. I can hear other patients’ questions and the pharmacists’ answer. I am concerned with other people finding out about my HIV-positive status.”
Another patient described how on one occasion his mailed medication order was delayed by two days due to inclement weather and that he was leaving the country on the day the medication arrived, so he was not able to retrieve the medication until he returned. As a result, the patient missed at least four doses of his once-daily HIV/AIDS medication.
The patients’ lawsuit alleged that their local pharmacies were “best positioned” to provide “advice and counseling” to patients through “face-to-face interactions,” and “immediately provide new drug regimens as their disease progresses.”
The defendants moved for dismissal of the lawsuit.
Rationale
The judge first noted that “a public entity can be liable for damages if it intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to people with disabilities.” The judge explained that to show “deliberate indifference,” a plaintiff must establish “(1) knowledge that a harm to a federally protected right is substantially likely, and (2) a failure to act upon that likelihood.”
The judge first noted that there had been “multiple communications referencing the need for accommodations” sent by the plaintiffs to the defendants. The judge reasoned that the “plaintiffs’ substantial and numerous communications establish that they alerted the defendants to their need for accommodation, and this satisfies the first element of the deliberate indifference test.”
The judge then cited a U.S. Department of Health and Human Services statement saying that “making drugs available only by mail-order could discourage enrollment by, and thus discriminate against, individuals who have conditions that they wish to keep confidential.” The judge reasoned that the defendants had knowledge that there was a substantial likelihood the program discriminated against people with HIV, and that a harm to a federally protected right was substantially likely.
The defendants’ motion to dismiss was denied.
Takeaways
The outcome of this lawsuit is still undetermined. Nevertheless, several noteworthy judicial observations were made:
Patients living with HIV/AIDS are protected from discrimination on the basis of their disability under federal law.
Pharmacies and PBMs that receive federal funds are covered entities that must give patients with disabilities meaningful access to plan benefits and reasonable accommodation as needed to provide access.
The judge in this case readily accepted the patients’ explanation that the defendants’ program could violate the patients’ right to privacy and that the program could provide substandard pharmaceutical care. ■