Another social war based on a hypothetical premise ?

 

According to these charts the number of deaths from Rx opiates were relatively flat between 2010 to 2019 (.0038%). While this graph shows Rx opiates … the question is how many of those Rx opiates were obtained LEGALLY.  During that same time frame we know that the DEA cut the opiate production limits to the pharma industry was cut around 50%. What we don’t know of those OD deaths from Rx opiates, how many were LEGALLY OBTAINED ?  Which automatically makes those Rx opiates obtained thru some sort of diversion— ILLEGAL OPIATES.

The VERTICAL RED LINE is when the CDC Opiate Dosing Guidelines were implemented

CDC reported 38,000 over dose drug death in 2010 https://www.cdc.gov/nchs/data/nvsr/nvsr65/nvsr65_10.pdf and in 2020 90,000 drug over dose deaths.  https://usafacts.org/articles/drug-overdose-deaths-hit-a-record-high-in-2020/

Within those DRUG OVER DOSE DEATHS is an estimated 15,000 from the use/abuse of NSAID’s from intestinal bleed outs.

It would appear to be obvious – to those paying attention – which many involved with the war on drugs are not – that steepest increase of OD’s involving illegal fentanyl, Cocaine, and Methamphetamine seems to start around the time that the CDC opiate dosing guidelines came out.

Apparently those involved in fighting the war on drugs are hyper-focused on their agenda.. the same agenda that started in 1970… started by a bigoted, racist, opiophobic attorney – that just happened to be the President of the United States – “tricky dick nixon”

 

In An Instant, The DEA Took A Grandfather’s Hard-Earned Life Savings – hard to tell the criminals from law enforcement

In An Instant, The DEA Took A Grandfather’s Hard-Earned Life Savings

https://www.forbes.com/sites/instituteforjustice/2021/09/02/in-an-instant-the-dea-took-a-grandfathers-hard-earned-life-savings/

How did the life savings of a 58-year-old New Orleans grandfather end up in the federal government’s hands, possibly forever? It’s a complicated story, but the simple answer is that law enforcement has a “see cash, seize cash” policy at our nation’s airports.

If you walk through New Orleans’ historic Roosevelt Hotel on the weekend, you are likely to hear Kermit Warren chatting up a customer at his shoeshine stand. Kermit is a New Orleanian through and through, so you might hear about how he worked at Central Grocery making its famous muffuletta sandwiches, or about his time as a longshoreman on the Mississippi River docks, or when he helped the Army Corps clean up after Hurricane Katrina. And one subject excites him more than anything else: his sons and grandson.

But a year ago, the shoeshine stand was quiet. With travel and business grinding to a standstill because of COVID-19, Kermit was laid off. But being the hard worker that he is, Kermit saw a future in a family business: hauling and selling scrap metal with his younger son Leo.

Through many different jobs, two things remained consistent for Kermit. One, he set aside cash every week to save for a rainy day or to eventually leave an inheritance for his family. Two, he used his spare time to haul and sell scrap metal, often with Leo’s help. When he was laid off, Kermit had managed to save nearly $30,000 cash.

But to make a full-time living from scrapping, he and Leo needed a second tow truck. Kermit’s brother and Leo scoured the internet and thought they found the right truck at the right price outside Columbus, Ohio. Kermit negotiated the purchase for a cash price, and he and Leo flew up to Ohio on one-way tickets, planning to drive the truck back.

But when Kermit got a good look at it, he realized the tow truck was too heavy and had features that he didn’t need and that would make the insurance more than he could afford. So Kermit held on to his money and headed to the Columbus Airport. Going through security, he was briefly stopped by TSA screeners when they noticed the cash. But the screeners (rightly) told him it was legal to travel with cash and that he could go to his gate. What they did not tell Kermit is that they had also called the Drug Enforcement Administration (DEA).

Before their plane started boarding, Kermit and Leo were confronted by three DEA agents. The agents refused to listen to Kermit’s reasons for traveling with cash or look at his correspondence with the truck company and photos of the truck. Kermit, whose other son is a former New Orleans police officer, panicked about the imminent snatching of his life savings and told the agents untruthfully that he was a retired New Orleans police officer, before quickly coming clean. They seized the money, gave him a receipt, and let Kermit and Leo fly home. They had no reason to suspect that Kermit or his cash had ties to any crime.

Months later, the federal government filed a civil forfeiture complaint in court to keep Kermit’s money forever. The complaint is revealing because it shows just how thin of a case the government needs when it brings charges against property instead of people.

The DEA has no alternative explanation for how Kermit came to have nearly $30,000. The government just says that it thinks Kermit’s money is connected with illegal drugs, but not in any specific way.  Apart from the questioning at the airport, Kermit was never interviewed again. Unsurprisingly, neither Kermit nor Leo was charged with any crime.

But convicting people for crimes or actually stopping drugs from hitting the streets isn’t really the point. Federal law enforcement has a strong incentive to seize cash and keep it through civil forfeiture because the profits flow directly into accounts they control. And flyers are a prime target for cash grabs because everyone has to pass through security screening.

It is completely legal to fly domestically with any amount of cash, and cash is not on the list of items that the TSA prohibits flying with. Yet TSA routinely detains people and tips law enforcement off when it detects cash. The Institute for Justice is representing Kermit to get his life savings back and has represented others who had cash seized all over the country: Pittsburgh, Houston, Wilmington and Phoenix, just to name a few.

IJ also brought a national class action lawsuit squarely aimed at ending these practices that turn flyers into law enforcement piggy banks. There are many reasons to carry cash, and Americans don’t deserve to be treated like criminals just because they choose to fly with their hard-earned money.

Kermit is struggling to pay his bills, but he is back working at the Roosevelt a few days a week now. As the head deacon of his church, he talks often about how he has faith that justice will prevail.

1960 called: it wants pts to have medical freedom and restore doctor/patient rights back

A chronic pain patient advocate asked that I share this.
****
We Are Americans and Should Be Proud 🇺🇸
Through the years of fighting for pain patient’s rights and doctor’s rights, the dynamics has changed.
I recall feeling united with people with one goal, medical freedom.
Through the years, I noticed that there were more good people than bad. I noticed a few pain patients really didn’t seem to be pain patients at all and started to cause division.
Good research was being done to prove that removal of pain medication really had no positive change on addiction and overdoses, in fact, things were getting worse. We saw good doctors being judicially persecuted. We saw pain patients were developing additional health conditions due to untreated/under treated pain. We also were losing friends due to death from untreated pain and suicide. Still we forged on.
While many of us are still fighting for our rights for medical freedom, I am now watching posts from, (what I used to consider) top advocates that used to use the constitution to fight for medical freedom. Those same advocates turning around and putting that same constitution in the shredder. Are we really living in the same country? You can not be for medical freedom and want restoration of doctor/patient rights, then support mandates that have no constitutional basis.
Did those advocates stop to think that some people that suffer from chronic pain were people that were pressured into a medical procedure in the past? These people were not allowed medical freedom in the past, and now they are stuck with a life of pain. Now, these advocates are wanting to help the government push something into people’s bodies (that they know nothing of the person’s medical situation).
Also, for you that thought this whole fight was about chronic pain and unintended consequences, and that’s all it was about, well it’s time to open your eyes. This has never been just about not treating chronic pain. This has always been about control, and taking away our freedoms, one at a time.
When we ask the government for more help, that help comes with strings. That means the government can decide if you get a test, procedure, medication, etc. Did you know that some states are collecting data about what medication is being prescribed for certain conditions? Did you know that some states have added all prescription medications into their prescription drug data base? This is laying the foundation for the government to be your doctor. Do you want the government to be your doctor?
As an advocate, my focus has always been about patient/doctor rights and my fight remains, medical freedom. Other advocates that I used to look up to, I no longer do. They are using politics in a divisive manner. These constitution shredding advocates think a communist medical system will treat their pain? Either choose pushing for America to remain a free country, or let it fall (and all of us with it). This isn’t a political thing, this is an American thing. Start loving this country.
We need to fight for this country and medical freedom. We need to fight, as strong as our Veterans have for this country, who now deserve the best care. God bless the USA. 🇺🇸
Anonymous American medical freedom fighter.

H.R.3259 – NO PAIN (MED) Act

H.R.3259 – NOPAIN Act

https://www.congress.gov/bill/117th-congress/house-bill/3259/text

Ms. Sewell (for herself, Mr. McKinley, Ms. Kuster, and Mr. Fitzpatrick) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

This Act may be cited as the “Non-Opioids Prevent Addiction In the Nation Act” or the “NOPAIN Act”.

Don’t you just love it… Ms Sewell is another Fxxxx attorney attempting to practice medicine without a license and is so DAMN SMART that she apparently believes that addiction has nothing to do with mental health issues… presuming that addiction is a PERSONAL CHOICE and or a opiate itself is ABSOLUTELY ADDICTING.  Of course, we have a estimated 30-40 million addicted to the two drugs Alcohol and Nicotine and contribute to the deaths of about 550,000/yr… but.. apparently NO CRISIS HERE !

It would be nice if Ms Sewell understood that under/untreated chronic pain can lead to/cause Addison’s disease – which can be fatal if untreated when its source is known.  Additionally, just give pt a NSAID  & Tylenol which is unlikely to help manage chronic pain… but.. the pt could end up, because of under/untreated pain, with eye and kidney damage from taking those meds and possible a hypertensive crisis… followed by a stroke and/or death.   Hypertension has always been referred to as the “silent killer”… pt can experience eye and kidney problems from the NSAID and the Tylenol  can cause liver damage.  Not to mention the potential of GI bleeds, and it is claimed that 15,000 die every year from the use/abuse of NSAID and GI bleed outs.

The House only has about a 4 Democratic majority… so hopefully… at least 5 House Democrats will have some common sense and vote against this poorly conceived bill.  Since Ms Sewell and the other supporting this bill …. if any of these Representatives you are one of their constituents and a chronic pain pts… remember them when you vote next year and TOSS THEIR ASSES OUT OF THE HOUSE.

When Prior Authorization Practices Go Too Far

Aetna is owned by CVS HEALTH

https://www.medpagetoday.com/opinion/second-opinions/94454

When millions of Americans had to delay or cancel their routine or non-emergent care due to the COVID-19 pandemic last year, it was frustrating, but it also made sense. The health and protection of patients had to come first.

Now, although safety protocols and vaccines are helping physicians resume appointments as usual, thousands of patients remain stuck in a backlog of needed care because their physicians are facing down a different crisis, a crisis that is man-made: an insurance company-imposed pre-approval process for all routine cataract surgeries.

Aetna — the nation’s third-largest insurer — instituted a new pre-authorization requirement for all cataract surgeries, effective July 1. It’s a decision that was made with little notice to physicians and without data to support it. For patients who need cataract surgery to restore their vision, the new policy has created delays and disruptions in care. People who need surgery shouldn’t have to fight through a tangle of red tape to receive the care their physicians have prescribed.

Cataract surgery has an extremely high success rate. It enables patients to see clearly again so they can resume daily activities, such as driving and reading. Cataract surgery also helps people avoid injuries from falls or motor vehicle collisions. At times, cataract surgery is urgently required in order to treat other vision-threatening retinal conditions. Approximately 4 million Americans undergo this type of surgery every year without insurance companies questioning their physicians’ judgement. In fact, no other major medical insurer has burdened patients and providers with these unnecessary delays.

But, thanks to Aetna’s recent decision, tens of thousands of Americans are now sitting and waiting in an ever-growing logjam of care. According to the American Academy of Ophthalmology and the American Society of Cataract and Refractive Surgery, patients have been told that their surgeries could be delayed weeks while their doctors attempt to gain pre-authorization.

Some providers have been forced to cancel entire weeks of scheduled surgeries because of the policy. An “instant” online approval portal provided by Aetna has been only intermittently operational, forcing healthcare staff to spend hours on the phone to fight for care that their patients need.

When prior authorization emerged two decades ago, it was largely aimed at expensive new diagnostic tests or drug therapies. But today, it seems to serve as a way for insurance companies to practice medicine without a license — making critical healthcare decisions without key information or training, and potentially causing avoidable harm to patients. In fact, the American Medical Association has found that 94% of doctors say their patients have experienced delays in care due to prior authorization — and 30% say the process has led to a serious adverse event for a patient in their care.

Congress can step in and stop this troubling trend for American seniors. The Improving Seniors’ Timely Access to Care Act (H.R. 3173) — currently introduced in the U.S. House of Representatives — is a bipartisan bill that would help rein in prior authorization practices. Although it only applies to Medicare Advantage plans, the legislation would be a significant first step toward reforming a costly, frustrating, and dangerous industry practice that negatively affects patient care.

Prior authorization reforms are also taking place at the state level, though most laws do not go far enough. Advocates and lawmakers should take note of model legislation from the American Medical Association and enact safeguards that protect constituents of all ages from insurers’ prior authorization oversteps.

In the meantime, Aetna must immediately reverse its troubling prior authorization policy for all cataract surgeries so that sight-restoring surgery is not needlessly disrupted.

As we have seen during the COVID-19 pandemic, sometimes care delays — for the safety of patients and providers — are reasonable. But, delaying care so insurers can attempt to save money while usurping trusted providers’ medical decisions is completely unreasonable. And it needs to stop now.

Advocates: come and go and SOME ARE JUST RAN OFF

Infighting in the Pain Community Made Me Leave Advocacy

 

 

 

 

 

 

 

Some people in the chronic pain community seem intent to PUSH OUT some of the most vocal and visible advocates…  Another one just announced her departure a couple of days ago.  I don’t blame Caylee from walking away… I have had some of these narcissistic, self-serving, self-centered … so called advocates – come after me.

Fortunately, I have fairly tough skin and I just am able to ignore their “childish attacks”…  I just figure that I just hit a fairly “large nerve”

Maybe it is just me, but I often notice that there seems to be few, if any, of the chronic pain pts has much – if any – support from their spouse  – if the spouse is still around – what about Brothers/Sisters, kids and/or if parents are still around.  OH…they are not advocating for your pain being under/untreated ?  I am sure that they will attend your funeral and they will all agree that you are ” at peace and not in pain any more ”  and they will get on with their life !

There is suppose to be 100 million chronic pain pts … put how many are actually trying to advocate for themselves and others…  I don’t see the numbers … at least being visible ..anywhere on the internet.

I can’t count the number of strong advocates that have thrown up their hands and walked away over the 10 years that I have had my blog. Some I am sure were basically “chased away” …others got tired of the lack of unity within the community and/or the lack of numbers involved with the community.

If you are part of the community – or just a chronic painer standing on the side line – and you see a major advocate – or any chronic painer – being attacked … you need to stand up for the person being attacked.

As prescribers are abandoning more and more pts… no chronic painer need to stand by idle while watching advocates being chased off…  until one day you find yourself with no advocates but the ones who have been chasing off advocates that they don’t agree with – or – feel  that “their power/authority/dominance” is being threatened and those left in the community will have to go along with whatever processes they think is the way to go…. whether it is the right or wrong path.

 

 

Flu season is on the way, and it could be brutal

It is best if people get their flu shot the last of Sept – first of Oct… Flu season typically doesn’t start showing up until Nov and it takes two weeks post shot for blood titters to get to sufficient blood levels.  At some time after that point, blood titters start to fade and “flu season” can continue to be active until March.

Flu season is on the way, and it could be brutal

https://ncpa.org/newsroom/qam/2021/09/09/flu-season-way-and-it-could-be-brutal

NBC News reports that health officials are urging people to get their flu shots now, as two studies warn that this flu season could be a miserable one. Getting the shot now is an attempt to prevent further strain on hospitals already overwhelmed by COVID-19 and other viruses. It is almost impossible to predict what will happen in any flu season, but this year, a combination of factors could make this winter particularly tough, experts say. Children are back in school, often in communities that have eased up on mask mandates and physical distancing measures. And since flu was minimal to nonexistent last year, people were not exposed to the virus, potentially undermining the protection they’d normally have.

Interesting blog that is REALLY NOT FOND of DEA and Pharmacists “who are not comfortable” and refuse to fill Rxs

Someone shared this blog hyperlink ( https://youarewithinthenorms.com/ ) with me… it would appear that it has been around for about two years…  I have only read a few posts but definitive whoever is contributing to this blog… has NO USE FOR THE DEA and that breed of pharmacists who believes that they have the instilled belief that they have the right to basically practice medicine without a license and working on a very limited about of medical information about the pt that they are more than comfortable with refusing to fill a prescription because “I’m not comfortable”…

For the record… “I’m not comfortable” is not a valid clinical reason for refusing to fill a Rx… it is an EXCUSE based on the pharmacist’s person opinion generally based on their own personal biases or phobias.

One of the basics of the practice of medicine is the starting, changing,stopping a pt’s therapy… thus any pharmacist outright refusing to fill a legit Rx without contacting the prescriber… Is, most likely, practicing medicine without a license.

If the Pharmacist believes that there is a potential LEVEL ONE drug interaction, the pt is allergic to the medication and/or the prescribed dose is way outside of what is recommended by FDA. The pharmacist has a duty to explain this to the pt and inform the pt that the pharmacist is unable to fill the Rx until the prescriber has been contacted to clarify his/her concerns.  If the pt elects to take the Rx back and try to get it filled at another pharmacy… that is the pt’s option.

The Pharmacist also has the duty to put notes on the pt’s medical records in the pharmacy’s computer system of the advice provided to the pt… and the pt decided not to have their Rx filled at this particular pharmacy… In healthcare, there is a very important saying “if IT is not documented… it didn’t happen…”  It his type of situation, the pharmacist had some valid clinical reason(s) to HOLD UP the filling of the pt’s Rx(s) and the pt decides not to take the pharmacist’s advice and find another pharmacist that would fill the Rx.

If for some reason, the pt filled a complaint with the Pharmacy board about “denial of care”,  if the BOP followed up with an investigation… in all likelihood that the complaint would be dismissed with no action.

 

https://youarewithinthenorms.com/

Don’t hold your breathe to see this Administration to negotiate medication prices

This is how clueless this administration is about the price of medication.  The graphic at the bottom of this post demonstrates where the BULK of money the pt pays at the counter really goes to…  Over the last few years the major PBM middlemen have been bought/merged/acquired by insurance companies. So the middle of that graphic should be JUST TWO ENTITIES… Some believe that this was done so that their excessive gross profits could be buried within the P&L statement and balance sheet of the insurance company. The PBM industry was founded around 1970 and as they gained control over more and more of the Rx market place their profits have exploded.  Mostly from discount/rebates/kickbacks from the Pharmas to have their particular med on their approved formulary… meaning no PA for the prescriber to deal with.   PA takes time to deal with and time is money.  All medications under Medicare Part D are provided by FOR PROFIT INSURANCE COMPANIES.  I don’t understand how this administration believes that they can negotiate prescription prices from the Pharmas… when the insurance/PBM industry have been manipulating the medication prices that people pay. In 2020, most/all of the part D programs put abt a $435 annual deductible on their programs… Since most Medicare folks were paying abt $30/month premium… they basically OVER DOUBLED the out of pocket expenses for most Medicare folks. $360/yr premium plus $435 deductible…  Medicare folks was now paying $795/yr before the first medication benefit was paid.  Our Part D program estimated that I would not meet my deductible until Nov.  I didn’t hear any large number of Medicare folks RAISING HELL about this cost increase. President Trump has an agreement with insulin makers that as of April 2021 … all type 1 diabetics would only pay abt $30/month for their insulin… instead of the typical $200-$300/month under current pricing structure and President Biden … revoked that as soon as he got into office… and now he is concerned about the cost of medications.  The overall annual cost of treating a Type 1 diabetic is one of the more expensive diseases.  The Insurance/PBM industry has one of the largest “pots of money” to fund lobbying.  The lobbying industry – as a whole – spend $9+ million PER DAY on the 535 members of Congress … to persuade the members of Congress to get them to pass or vote on bills that a particular industry wants it their way.

 

 

White House unveils plan to cut prescription-drug prices

https://www.foxbusiness.com/politics/white-house-unveils-plan-to-cut-prescription-drug-prices

A Biden administration plan to lower prescription drug prices offers the first detailed road map of administrative actions the White House would support in addition to legislation aimed at driving down costs.

The plan, to be released Thursday, backs legislation from congressional Democrats, including a push to empower the federal government to negotiate for drug prices in Medicare and pass those lower costs along to the private sector. The road map goes further, however, by outlining administrative actions by agencies and departments that could come in concert with possible legislative changes.

Administrative measures include testing reimbursement for drugs in Medicare based on the clinical value they provide to patients and offering federal funding for research into new treatments, according to the plan viewed by The Wall Street Journal.

The Biden administration plans to take administrative actions, as well as legislative to lower prescription drug prices. (iStock)

Medicare is the health program for people aged 65 and older and younger people with disabilities.

“The Biden-Harris administration remains committed to making health care more affordable for American families, and this plan outlines one key way we will do that,” Health and Human Services Secretary Xavier Becerra said in a statement. “By promoting negotiation, competition and innovation in the health care industry, we will ensure cost fairness and protect access to care.”

The plan aims to bolster support for drug-pricing legislation by showing how administrative action could complement action from Congress. But Democrats remain divided over the scope and speed of the legislation, and the pharmaceutical industry is already ramping up its opposition to a number of the legislative options.

PhRMA, a trade group for drug manufacturers, held a press call Wednesday to criticize plans to enable price negotiation for drugs in Medicare, saying it will reduce funding for the development of new treatments.

“It’s really a smokescreen for implementing new government price controls,” said David Ricks, chairman and chief executive of Eli Lilly & Co. “We cannot and will not support policies that hurt patient access.”

Republicans also have opposed Medicare drug-price negotiations and have called for more bipartisan approaches to lower costs.

The plan, the result of weeks of meetings with industry, patient groups and others, stems from an executive order signed by President Biden in early July that tasked Health and Human Services with developing the road map in 45 days. The report was done but hadn’t been made public yet.

The president called for the plan to include initiatives to combat high drug prices, beef up domestic pharmaceutical supply chains and address what the plan calls price gouging.

The 29-page plan is built around three broad principles: support for price negotiation with drug manufacturers and limits on drug-price increases, promotion of industry competition, and support for public and private research into new treatments, according to a copy of the report.

The plan, for example, says legislation could prohibit pharmaceutical companies from paying generic competitors to hold off on marketing their versions of brand-name drugs. Administratively, the Food and Drug Administration and the U.S. Patent and Trademark Office would then develop solutions so that drug manufacturers can’t unfairly use the patent system to discourage competition, according to the plan.

The plan calls for reducing regulatory barriers that may impede or slow the approval of lower-priced generics or licensing of biosimilars – near-identical versions of drugs that can be made once an original patent expires, as well as promoting the lower-cost alternatives.

To spur new drug innovations, the administration would launch an agency at the National Institutes of Health to drive biomedical breakthroughs. Mr. Biden requested $6.5 billion for three years in his fiscal 2022 budget for the NIH, whose focus would be to “foster medical innovations,” including for diseases such as cancer, diabetes and Alzheimers.

Other administrative measures include drug importation programs that reduce costs. HHS could collect data from insurers and third-party benefit managers to improve transparency about prices, rebates and out-of-pocket spending on prescription medications, according to the plan.

HHS could test models that pay for treatment and care in Medicare based on outcomes, in which payments for drugs are directly linked to the clinical value they provide patients.

Mr. Biden in August urged Congress to move drug-pricing legislation as part of a $3.5 trillion budget package. House and Senate Democrats have largely supported the ideas in concept, with the lawmakers in both chambers currently working on legislation to include provisions aimed at lowering the cost of prescription drugs.

Democrats on the House Energy and Commerce Committee are expected to unveil a proposal based on earlier legislation that passed the House enabling Medicare to negotiate on the price of prescription drugs.

The plan also lays out possible legislative approaches that the administration supports for lowering prices. Measures include legislation to slow price increases over time on existing drugs, a cap on the amount Medicare beneficiaries pay out of pocket for drugs and the speeding up of lower-priced alternatives to patented and name-brand drugs.

Efforts to tackle high drug prices have so far made little progress despite bold announcements. Former President Donald Trump had campaigned on letting Medicare negotiate drug prices but retreated from the idea once in office.

The Biden administration has pulled back from Trump-era plans to align payments for drugs with lower drug prices in other countries and curb drug rebates paid to groups that manage pharmacy benefits for companies and the federal government.

CVS Urges SCOTUS to Bar HIV/AIDS Patients’ Disability Bias Suit

CVS Urges SCOTUS to Bar HIV/AIDS Patients’ Disability Bias Suit

https://consumerwatchdog.org/news-story/hiv-bias-suit-against-cvs-tests-bounds-obamacare-protections

Californians with HIV and AIDS are taking on their drug plan middleman in a fight over how they get the medications they need to survive.

Their proposed class action against CVS Caremark—green-lighted by a federal appeals court last month—is testing the bounds of the Affordable Care Act’s antidiscrimination protections and could open the door to more litigation against powerful pharmacy benefit managers (PBMs) that control how drug benefit plans operate.

The case has the potential to bring more clarity to how Obamacare’s antidiscrimination protections are interpreted, said Elizabeth Pendo, a law professor at Saint Louis University Law School, who specializes in disability discrimination.

“These types of cases are incredibly important, and they are coming at a time when there’s a lot of uncertainty because of multiple legal challenges to the expansive idea of health-care access and nondiscrimination that we had during the Obama administration and a more limited or restricted idea of that during the Trump administration,” she said.

‘Disparate Impact’ 

The plaintiffs argue CVS Caremark, which administers and controls their employer health plan’s drug benefits, threatened their health and privacy by forcing them to get their specialty prescriptions filled by mail order or drop shipment to a CVS pharmacy for pickup. They’d have to pay the out-of-network insurance rates or full price to get their drugs at a pharmacy of their choosing.

One potential member of the nationwide class, who spoke with Bloomberg Law on the condition of anonymity, said they would have to pay over $1,300 out of pocket for a 30-day supply of Biktarvy if they used a pharmacy of their choice. The drug, used to help control HIV infection, otherwise costs $300 for a three-month supply under their health plan. The plaintiffs in the case are listed only as John Doe to protect their privacy. 

CVS Caremark said it treats all of its specialty drugs the same and they include treatments for disabled and non-disabled individuals alike. There are over 300 drugs on the list, including contraceptive devices and drugs that treat osteoporosis, arthritis, and asthma. Even though CVS said its policy is not intentionally discriminatory, the individuals with HIV and AIDS say they are being disproportionately impacted by a program that applies to all plan participants.

“Our goal here is to make sure that people with any pre-existing condition, or chronic illness, or disability can get the life-saving medication in a medically appropriate manner, they can get it in a way that doesn’t undermine their health,” said Jerry Flanagan, litigation director for Consumer Watchdog and one of the attorneys representing the patients’ in the case.

The U.S. Court of Appeals for the Ninth Circuit ruled Dec. 9 that the plaintiffs’ Obamacare bias claims could proceed after they were initially tossed out by the district court. The appeals court said patients can bring a claim of disability discrimination under Section 1557 of the ACA if they are disproportionately impacted by a policy. The ACA provision, which is based on existing civil rights laws, prohibits discrimination on the basis of sex, age, or disability in certain health-care programs. 

CVS Caremark asked the full court of appeals on Dec. 23 to overturn the ruling, arguing any limits on a health plan could be challenged under its reasoning.

“If allowed to stand, the panel decision threatens to open the door to ‘disparate impact’ claims based on any number of commonplace plan designs, with potentially enormous costs to the healthcare system,” CVS Pharmacy Inc. and CVS Caremark warned in their petition for a rehearing.

PBMs play an active role in shaping employee health benefits and could find themselves at a greater risk of being sued for discrimination over other decisions if those decisions hurt some health plan participants and not others, one law scholar said.

“There are lots of reasons why distribution and economics would encourage distribution to the home, but PBMs make a lot of other decisions that affect drugs that are a lot less defensible, at least defensible from a social perspective,” said Barak Richman, professor of law at Duke University School of Law, whose research is focused on health-care policy. 

Plan Design 

In July the Ninth Circuit held in Schmitt v. Kaiser Foundation Health Plan of Washington that Section 1557 of the ACA bars discrimination against people with disabilities in the design of insurance plan benefits.

The complaint filed against CVS Caremark is based on the same idea, “that 1557 specifically bars disability discrimination in insurance and benefit plan design,” Pendo said.

But a CVS spokesman said in a statement that PBMs like CVS Caremark are not plan sponsors and don’t make benefit design decisions for clients.

“We offer clients numerous clinical tools and pharmacy network options, including an option for clients to allow members with HIV to fill HIV-related medications at in-network local independent pharmacies and other national chain retail pharmacies,” Mike DeAngelis, senior director of corporate communications, said. “Each client selects the options that best meet its benefit plan objectives.”

Flanagan disagrees. CVS designed the benefit plan and can’t provide an option to a client that is discriminatory, he said, noting that Consumer Watchdog sued the employers involved as well. Those claims were dismissed by the district court and the Ninth Circuit.

“What CVS is trying to do here is paint the Ninth Circuit’s decision as doing something that’s brand new,” he said. “The Ninth Circuit found that Section 1557 merely applies existing civil rights laws and the plaintiffs here have met the requirements of existing law.”

The cases are Doe v. CVS Pharmacy, Inc., 9th Cir., No. 19-15074 and Doe One v. CVS Pharmacy, Inc., N.D. Cal., No. 3:18-cv-01031.

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com