January 21, 2015 Practice Points

Class Action Filed Based on Access to HIV/AIDS Medication

By Nick Kacprowski

On December 19, 2014, an anonymous plaintiff filed a lawsuit against health insurer Aetna, Inc. and related companies in the U.S. District Court for the Southern District of California. The plaintiff brings his claims on behalf of a class of all persons nationwide enrolled in or covered by a health care plan administered by Aetna that includes a drug benefit, who are prescribed HIV/AIDS specialty medications, and who are required to participate in Aetna's new drug plan. The plaintiff also seeks to represent a subclass of California residents.

The plaintiff alleges that through a change in its health plans implemented on January 1, 2015, Aetna requires HIV/AIDS patients enrolled in its plans to purchase their medications by mail order through a company called ASP, a wholly-owned Aetna subsidiary. As a result of the change, community pharmacies will be considered "out of network," meaning that to continue purchasing HIV/AIDS medications from the community pharmacies, patients may see monthly cost increases of many thousands of dollars. The plaintiff claims that this change effectively forces patients to purchase through the mail order plan, which negatively effects their health and privacy. The plaintiff claims that HIV/AIDS patients also pay additional costs even if they purchase through the mail order plan.

The plaintiff alleges that patients will be harmed by switching to the mail order plan because they lose the opportunity to consult face-to-face with their community pharmacist on matters such as side effects and negative drug interactions. He also claims that the mail order requirement, coupled with restrictive procedures for obtaining refills and the potential for refills to be lost during processing or in the mail, creates a threat of missed dosages of their life-saving drugs. The plaintiff claims that because many HIV/AIDS medications must be constantly refrigerated, patients face privacy violations if they live in apartment buildings or must have their drugs delivered to their work places due to work schedules, since it increases the likelihood that neighbors and coworkers will learn of their HIV status.

The plaintiff brings 14 causes of action under the Affordable Care Act, ERISA, the Americans with Disabilities Act, California Unfair Competition Law, common law restitution, breach of the duty of good faith and fair dealing, violation of California's Unruh Civil Rights Act, and for declaratory relief. The attorneys representing the plaintiff and seeking to represent the class are Edith Kallas and Alan Mansfield of Whatley Kallas LLP, in its New York and San Diego offices, and Harvey Rosenfeld and Jerry Flanagan at Consumer Watchdog in Santa Monica. The case is styled Doe v. Aetna, Inc., 14-CV-2986-LAB-DHB.

Keywords: LGBT, HIV, AIDS, litigation, health insurance

Nick Kacprowski is with Alston Hunt Floyd & Ing in Honolulu, Hawaii.

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