HIV patient sues state over rule to use only CVS for needed drugs
A man with HIV is using an anti-Obamacare provision in the Ohio Constitution to sue the state for forcing him to use CVS pharmacies if he is to receive benefits under a government drug-assistance program.
Edward J. Hamilton of Columbus filed suit this week in the Court of Claims against the Ohio Department of Health in connection with the department’s HIV Drug Assistance Program, which requires participants to get their medicine through pharmacy giant CVS.
And a letter by the Ohio Department of Health that was attached to Hamilton’s lawsuit tells patients in the drug assistance program, “CVS Caremark will provide ALL of the medications covered on the formulary.”
Hamilton didn’t agree with the politics that led to a 2011 constitutional amendment that said no law “shall compel, directly of indirectly, any person, employer, or health care provider to participate in a health-care system.” However, he said, it’s applicable to a program that drives some Ohio HIV patients away from the pharmacy of their choice and to CVS’ — including its mail-order business, which he said has forced him to face delays getting life-saving drugs, sent him empty bottles and created other problems.
Explaining why he decided to use the constitutional provision to take on the drug program’s restrictions, Hamilton, a longtime HIV activist, said, “You might as well use their own poison on them. It’s like holding a mirror up to a witch.”
The suit is related to another that was filed last week against the state health department in the Ohio Court of Claims and one that was filed against CVS in federal court in March. They are seeking damages from those entities over a mailing by CVS to 6,000 drug program participants that printed “HIV” above addressees’ names, making the confidential health information available to anybody who saw the letters.
Because of his dissatisfaction with CVS, Hamilton does not participate in the drug assistance program. His suit accuses the Ohio Department of Health of making the “public policy choice to steer and mandate over 6,000 persons in the Ohio Drug Assistance Program to use CVS Health and all related entities (including Caremark LLC, CVS Pharmacy and its CVS Specialty and its mail order pharmacies) in violation of Article 1, Sec. 21 of the Constitution of the state of Ohio.”
Hamilton is asking the court to suspend CVS’s contract with the department of health until the requirement that all medicines in the drug assistance program come from CVS is removed. He’s also seeking unspecified damages and attorney’s fees.
“We have not been named in this lawsuit and have not had the chance to review the allegations or underlying facts,” company spokeswoman Christina Beckerman said in an email. “However, CVS Caremark’s highest priority is assuring patient access to clinically appropriate drugs while managing overall health care costs for our clients, and we offer our clients multiple clinical tools and pharmacy network options targeted at achieving both of these goals.”
Since March, the Dispatch has been examining pharmacy benefit managers such as CVS Caremark. The company, the country’s seventh-largest, has a close relationship with state agencies. For example, four of the state’s five Medicaid managed-care organizations contract with CVS to mange about $3 billion a year in prescription benefits.
Health department spokesman Russ Kennedy said the agency wouldn’t comment on issues related to a lawsuit — including a question about why it agreed to a state contract spending state and federal funding for HIV drugs that locked out all pharmacies but CVS.
Hamilton said for program participants the choice is to use CVS or lose assistance.
“We’re deprived of assistance even though the state applied to the federal government in our name,” he said.
Filed under: General Problems
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