The supreme court case CVS v. Doe came to an end when CVS Health sat down with the Bazelon Center for Mental Health Law, the Disability Rights Education and Defense Fund (DREDF), the American Association of People with Disabilities (AAPD) and the National Council on Independent Living and decided to work together to seek policy solutions to protect equitable access to health care for all Americans and the fundamental rights of people with disabilities.
The court case began when CVS Health, a company delivering care across America through nearly 300,000 employees – including more than 40,000 physicians, pharmacists, nurses, and nurse practitioners, changed a policy related to their CVS-managed prescription drug plan, which would have required people who need “specialty medications” to receive them by mail, instead of at their local pharmacy. In light of those policy changes, five individuals living with HIV sued over the requirement, arguing that it effectively prevents them from receiving needed care for their condition and represents discrimination based on their disability.
On October 29, disability rights organizations filed friend-of-the-court briefs, urging the Supreme Court to uphold disability rights by rejecting CVS’s attempt to dismantle non-discrimination protections under Section 504 of the Rehabilitation Act. In the case, CVS was arguing that Section 504 of the Rehabilitation Act does not protect against claims of “disparate impact,” or when neutral policies or practices have disproportionate impacts on a protected class, in this case, people with disabilities.
Together, several disability rights organizations, including the Bazelon Center for Mental Health Law and the Disability Rights Education & Defense Fund, filed an amicus brief arguing that the Supreme Court should not decide the issue of whether disparate impact claims are permitted under Section 504 in this case because the claims brought are, at their core, claims concerning the differential treatment and failure to make reasonable accommodations rather than disparate impact claims. The groups argued that long-standing Supreme Court precedent makes clear that most discrimination against people with disabilities comes from “benign neglect” or thoughtlessness — and that removing the ability to get relief from such discrimination would undermine the entire purpose and history of Section 504.
The Rehabilitation Act was passed in 1973 alongside with the Americans with Disabilities Act. These acts were the foundation for improved accessibility and inclusion of individuals with disabilities. Before the Rehabilitation Act, people with disabilities had no resource to challenge discriminatory practices. “The Section 504 regulations were finalized in 1977 after years of serious negotiation between the disability community and government and business representatives,” said Judith Heumann, a board member of DREDF, a California-based national nonprofit law and policy center dedicated to protecting and advancing the civil and human rights of people with disabilities. “We knew that we had to cover neutral policies — we are so often excluded that way. So that’s what we did. It was foundational,” she adds. Heumann, one of the leaders of the disability rights movement featured in the 2020 award-winning documentary Crip Camp, fought alongside many other disability activists and succeeded when CVS Health had a conversation with the disability rights groups and agreed to find a solution in a team effort.
“We have a long track record of supporting the essential and foundational legal protections for people with disabilities and ensuring that marginalized populations can access affordable health care and medicines in their community,” said David Casey, Senior Vice President, Workforce Strategies and Chief Diversity Officer at CVS Health. “Our agreement to pursue policy solutions in collaboration with the disability community will help protect access to affordable health plan programs that apply equally to all members. As a result, we will not pursue the matter further before the Supreme Court.”
The supreme court case was stopped and CVS Health showed that they care about what people with disabilities have to say. “CVS Health engaged in an honest dialogue with disability community representatives and listened carefully to our concerns about what was at stake for disabled people with the question before the Supreme Court,” said Judith Heumann. Heumann and others, including disability law expert Chai Feldblum and the Bazelon Center’s Jennifer Mathis, took part in the discussions with CVS Health. “We look forward to continuing this important work in partnership and thank CVS Health for its commitment to preserving disability rights.”
