Anthem’s mail-order policy may have crossed a legal line

by David Lazarus, Los Angeles Times

Anthem Blue Cross may be breaking California law by requiring some policyholders to buy their prescription drugs from a single mail-order pharmacy, according to the state attorney general’s office.

Anthem, the state’s largest for-profit health insurer, had notified members with conditions such as HIV/AIDS and cancer that they will have to buy their medications from the mail-order pharmacy CuraScript or pay full price at a retail drugstore.

Other Anthem members, including those with chronic conditions such as diabetes, face no such requirement.

"California law clearly states that no one can be discriminated against because of a medical condition," said Lynda Gledhill, a spokeswoman for Atty. Gen. Kamala D. Harris. "If patients are being required to get their prescriptions from a certain pharmacy because of their condition, that is likely illegal."

She declined to comment on specific measures officials may take if Anthem proceeds with its policy switch, but stressed that the attorney general’s office "treats very seriously cases involving restricting access to care."

Darrel Ng, an Anthem spokesman, said the insurer’s policies "do not discriminate on the basis of disease states, and they are reasonable and compliant with applicable laws." He also said other insurers have similar policies.

I sought the attorney general’s opinion after the California Department of Managed Health Care voiced concern that Anthem hadn’t done a good enough job informing people about the change, which was scheduled to take effect Jan. 1 but has been delayed until March 1.

Along with the postponement, Anthem said it would clarify possible exemptions to the new rule. But that didn’t mollify critics.

"This is still a very serious issue," said David Balto, a Washington antitrust lawyer and former policy director for the Federal Trade Commission. "It affects some of the most vulnerable people in society."

When I broke the news in November that Anthem was imposing the new requirement for so-called specialty medications used to treat major illnesses, the insurer said the limitation would help keep costs down for patients and businesses.

State healthcare officials didn’t challenge that assumption. But they said Anthem failed to make it clear that some members may be able to avoid the mail-order-only requirement.

"That was our primary concern," said Marta Green, a spokeswoman for the Department of Managed Health Care. "There are individuals for whom a mail-order pharmacy may not be appropriate."

For example, people taking a variety of meds may benefit from face-to-face contact with a pharmacist, rather than dealing with a mail-order drugstore’s call center. A pharmacist, for instance, would be in a better position to explain how different drugs interact.

Or consider the case of Irvine resident Jeffrey Beckwith, 60, who had a liver transplant in 1995 and ever since has received 90-day refills for his specialty meds. He told me that, thanks to Anthem’s policy change, he’ll now only get 30 days’ worth of pills at a time.

Anthem’s Ng said the company will "highlight the process to request a hardship waiver" so that Beckwith and others could try to avoid using the mail-order pharmacy.

Ng provided a copy of the revised notice being sent to people requiring specialty meds. It says at the very bottom that "if this specialty mandate poses a hardship for you, you may file a grievance with Anthem" or request a form to seek an exemption.

Balto, the former FTC official, has been retained by retail drugstores to challenge Anthem’s requirement. He said cutting off personal access to a pharmacist can have dire consequences for people with HIV/AIDS who may require a "cocktail" of drugs to manage their condition.

"You may have to take them in a particular order or at particular times," Balto said. "As you go, you may have to adjust your doses. Not being able to speak with your own pharmacist can have very serious repercussions."

California’s Unruh Civil Rights Act (Section 51 of the Civil Code) specifies that all people must be treated equally "no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status or sexual orientation."

Section 12926.1 of the California Government Code says that "physical and mental disabilities include, but are not limited to, chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis and heart disease."

Meanwhile, Sections 54 and 55 of the Civil Code state that people with disabilities or medical conditions "have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings (and) medical facilities, including hospitals, clinics and physicians’ offices."

As Balto sees it, Anthem’s mail-order requirement for people with serious medical conditions, but not for other members, is clearly discriminatory.

"We’re talking about these people being forced into mail-order," he said.

Anthem’s Ng cited rival Humana as being among insurers that "already require that their members get their specialty medications ‘ including HIV ‘ via delivery in California."

However, Marina Renneke, a Humana spokeswoman, said such requirements are determined by employers offering health benefits, not the insurer.

Green at the Department of Managed Health Care said only that the Knox-Keene Health Care Service Plan Act of 1975, which regulates most managed-care plans in California, doesn’t prevent an insurer from using mail-order drugstores for pharmacy benefits.

But with the attorney general opening the door to legal proceedings, it seems likely that Anthem’s move will be challenged in the form of either an official investigation or a civil lawsuit.

Anthem is correct to seek lower healthcare costs. A mail-order pharmacy may be more efficient in many cases than a retail drugstore.

But it shouldn’t be "my way or the highway," not when people’s lives are on the line. Offer a discount for shopping at the pharmacy of Anthem’s choosing, but don’t punish people for going to the same drugstores that all other members are free to use.

It’s unfair. And it may be illegal.