Patient Alleges Chain’s Opioid Policy Violates Antidiscrimination Statutes

Joseph L. Fink III, JD, BSPharm, DSc (Hon), FAPhA;

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December 30, 2024

Pharmacy Times

December 2024

Volume90

Issue 12

Patient Alleges Chain’s Opioid Policy Violates Antidiscrimination Statutes

Author(s):

Joseph L. Fink III, JD, BSPharm, DSc (Hon), FAPhA

Key Takeaways

A pharmacy chain's opioid policy, based on CDC guidelines, faced a lawsuit for alleged discrimination against disabled individuals.
The policy included measures like "blacklisting," dose limits, and bundling with nonopioid medications, allegedly burdening patient access.
The trial court dismissed the lawsuit, finding no evidence of disproportionate impact on disabled persons, a decision upheld by the appellate court.
The appellate court rejected claims of facial discrimination, overdiscrimination, and deliberate indifference, affirming the policy's non-discriminatory nature.

Plaintiff argues that "blacklisting” certain individuals with opioid prescriptions was unlawful.

Facts of the Case

A national pharmacy chain had adopted an opioid dispensing policy for its pharmacists based on guidelines from the CDC and endorsed by the American Medical Association. The policy called for pharmacists to refuse to honor any opioid prescription that exceeded dosage or duration guidance in the CDC publication.

Image credit: steheap | stock.adobe.com

The plaintiff in this lawsuit claimed that the pharmacy chain had improperly adopted the guidelines because those public health guidelines were directed toward physicians and other prescribers, not pharmacists. It was alleged that the adopted guidelines placed a burden on or even prevented patients from receiving prescribed medications at the pharmacies. The claim was that the pharmacy chain had adopted the dispensing policy to protect itself from additional opioid-related lawsuits and in the process had violated antidiscrimination legal requirements as they relate to disabled individuals by preventing their access to opioid prescriptions.

About the Author

Joseph L. Fink III, JD, DSc (Hon), BSPharm, FAPhA, is professor emeritus of pharmacy law and policy and former Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.

It was alleged that the pharmacy’s policy had several facets, including “blacklisting” certain persons with opioid prescriptions, imposing dose and duration limits, requiring bundling with nonopioid medications, and requiring comprehensive medical records.

The defendant pharmacy made a motion with the trial court judge to dismiss the lawsuit because it failed to advance a claim for disability discrimination under federal or state law. The trial court judge ruled in favor of the pharmacy chain, saying the plaintiff had failed to establish that the policies under review applied solely or disproportionately to disabled persons. The trial court judge based that ruling on his conclusion that the plaintiffs had failed to “plausibly allege that persons with chronic or acute pain are exclusively or overwhelmingly disabled.” The plaintiffs appealed the decision to dismiss their lawsuit. The US Court of Appeals agreed with the trial court judge and upheld dismissal of the lawsuit.

The Court’s Reasoning

The appellate court reviewed 3 arguments advanced by the plaintiff. First, the judges reviewed the claim that the policy is discrimination on its face because it “treats individuals differently on the basis of seemingly neutral criteria.” Second, they reviewed what the law labels “overdiscrimination,” meaning the defendant “exhibited a willingness to distinguish among individuals” based on apparently neutral criteria, knowing that some people who are not members of the disfavored group will suffer along with targeted individuals. Third, they reviewed “deliberate indifference,” meaning the defendant pharmacy chain had “knowledge that a harm to a federally protected right is substantially likely.” The appellate panel rejected all 3 arguments, pointing out that “any customer with a prescription exceeding the dose-and-duration threshold might encounter burdens in filling that prescription.” The court concluded that the policy in question “does not deny people with a disability meaningful access to a service that remains open and easily accessible to others.”