People living with HIV and AIDS have long experienced the pain of discrimination. Some of us remember those dark days when hospital workers would leave trays of food outside the rooms where AIDS patients were dying. There are still incidences when health care providers refuse to treat people with HIV/AIDS. Federal laws against disability discrimination have provided some protection, but those protections are limited.
For example, the Americans with Disabilities Act has an exception when it comes to health insurance that allows insurers to administer plans based on underwriting risks, among other methods. Thus for years, health insurance companies routinely denied coverage to people with HIV and others with pre-existing conditions. Courts upheld coverage denials, exclusions, and caps on benefits that left many people, and not just people with HIV/AIDS, without needed care.
The Affordable Care Act (ACA) changed everything. The ACA not only expanded coverage to people who were previously uninsured, it serves as a sweeping nondiscrimination law, prohibiting insurance companies from denying coverage to those with preexisting conditions, charging women higher premiums than men, imposing monetary caps on essential benefits, or excluding coverage for specific medical conditions. As part of its nondiscrimination framework to transform health care, the ACA includes a new civil rights law – Section 1557 – building upon other civil rights laws to protect and enforce nondiscrimination in health programs and activities.
The Supreme Court is now considering an HIV discrimination case, CVS v. Doe, that could have far-reaching implications for how courts across the country will treat discrimination claims. The plaintiffs, several people with HIV (who, because of stigma, wish to remain anonymous) are challenging a change by their health plans in how they access HIV treatment.
The health plans imposed a new requirement that patients can access HIV and other so-called specialty drugs only through mail order pharmacy, and not through local, community-based pharmacists. The plaintiffs objected, citing their need for privacy and concerns that if their medications are lost in the mail or stolen, they could miss treatment, leading to drug resistance and other serious health implications. The plaintiffs also argue that their relationship with a pharmacist is as important as their relationship with their doctor. HIV treatment is complex, involves a combination of drugs, and has the potential for dangerous drug interactions. Many people with HIV rely on having a strong, trusted relationship with their pharmacist as an important part of their care.
The Supreme Court will decide not only if these individual plaintiffs have a valid claim; but whether anyone can bring a discrimination case challenging a law or policy that may be neutral on its face, but disproportionately impacts a certain group of people, such as persons with disabilities under Section 504 and Section 1557. Commonly referred to as “disparate impact,” such claims have been an important part of protecting civil rights.
The COVID-19 pandemic has laid bare ongoing discrimination and inequality in health care, with disparities in infections, hospitalizations, and deaths for Black, Indigenous, Latinx, and other underserved populations. The Court’s decision in this case could have a tremendous impact on the ability of people to enforce nondiscrimination protections.
The National Health Law Program (NHeLP) has long worked to protect and advance health rights of low-income and underserved individuals and families, including the nondiscrimination protections under the ACA and Section 1557. NHeLP, joined by Disability Rights California, filed an (also known as ‘friend of the court” briefs) in this case, to provide information and perspective to the Court that might not otherwise be addressed by the parties.
NHeLP’s brief focuses on how the ACA transformed health care, including nondiscrimination. NHeLP emphasizes how older, pre-ACA court cases on health care discrimination have limited impact on claims brought under the new provisions of Section 1557.
Other groups also filed amicus briefs, including HIV/AIDS organizations, disability rights advocates, and the U.S. Department of Justice.
Oral arguments in CVS v. Doe are scheduled for December 7. Advocates will be watching closely and hoping that the Court’s decision in this case will not torpedo the rights of people seeking to enforce nondiscrimination protections.
Link to NHeLP amicus brief: Amicus brief from National Health Law Program in CVS v. Doe
Additional NHeLP resources on Section 1557 and nondiscrimination
Blog: NHeLP is a friend of the court in case involving the implementation of the ACA’s Non-Discrimination Provision
Amicus brief: U.S. Court of Appeals for the 9th Circuit – Schmitt v. Kaiser
Issue brief: Trump Administration Eliminates or Weakens Regulatory Protections Against Discrimination in Health Care