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July 29, 2021

Supreme Court grants cert in an ACA Section 1557 case

The Supreme Court granted cert in CVS Pharmacy, Inc. v. Doe, an Affordable Care Act Section 1557 case in which the plaintiffs who have HIV challenged their employer sponsored health plan provisions requiring the use of CVS’s mail order specialty pharmacy for their specialty HIV medications on disparate impact grounds. Section 1557 of the Patient Protection and Affordable Care Act (“ACA”) creates a private right of action for discrimination on the basis of race, sex, age, and disability in federally funded health programs and activities. 42 U.S.C. § 18116(a). This private right of action incorporates the “enforcement mechanisms” of other federal antidiscrimination statutes, including the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits disability discrimination. The Supreme Court declined to consider if such claims extend to the facially neutral terms and conditions of health insurance plans.