Challenge to pharmacy’s opioid control is dismissed

A federal judge on Tuesday dismissed a disability discrimination class action against Walgreens and Costco alleging they illegally refused to dispense opioids to people with chronic pain and other ailments, finding that policies maintained by the companies' pharmacies do not single out disabled people.

"All of Plaintiff's claims rest on the same premise -- that Defendants' policies either exclusively or disproportionately discriminate against disabled persons," U.S. District Judge Charles R. Breyer wrote. "But Plaintiff has not adequately alleged that the policies treat disabled persons any differently than similarly situated non-disabled persons."

The opioid crisis has led to federal regulators limiting the supply and use of opioids in the U.S., encouraging more conservative prescribing practices, strengthening oversight and cracking down on fraudulent prescribing and marketing practices. National pharmacy chains and health insurance companies have implemented similar policies to limit the administration of such drugs.

The lawsuit was brought by chronic pain patients, people in nursing home care and people undergoing cancer treatment, alleging Walgreens and Costco adopted illegally restrictive prescribing policies. It claimed they discriminate against disabled people with opioid prescriptions that exceed the federally recommended dose and duration periods. Smith v. Walgreens Boots Alliance, Inc., 20-cv-05451 (N.D. Cal., filed Aug. 6, 2020).

But Breyer concluded the complaint failed to cite to a policy by the companies instructing their pharmacists not to fill such prescriptions or fill them at lesser amounts so as not to prescribe more opioids than Centers for Disease Control guidance. He pointed to other possible explanations for plaintiffs' burdens fulfilling their prescriptions.

Defendants, the judge explained, could have simply not had the drugs needed to fill certain prescriptions, or they could have been "completing due diligence before dispensing a controlled substance." He emphasized pharmacists are rightfully being increasingly cautious amid the ongoing opioid epidemic.

"Given the absence of specifics, including what specifically triggers the policies' application and how they are applied, it is difficult to infer that a given pharmacist's alleged behavior is the result of the policy, as opposed to situational factors that are unique to a particular customer interaction," Breyer wrote.

The conduct of the companies' pharmacists is consistent with behaviors that they are expected to take, namely checking prescriptions records, requesting additional information when questions arise and declining to fill a prescription when questions remain, according to the judge.

Even if the disputed policies discourage the fulfillment of certain prescriptions, Breyer ruled the lawsuit can be dismissed because people who get opioids are not necessarily considered disabled and cannot pursue claims alleging disability discrimination. He rejected arguments from plaintiffs' attorneys that people with prescriptions exceeding the dose and duration thresholds are "exclusively" or "tend to be" disabled.

The judge noted 65% of opioid prescriptions in 2018 exceed the federally recommended duration period, according to the CDC.

"No well-pled facts render plausible the conclusion that the majority of patients who receive opioid prescriptions exceeding the duration threshold are disabled," Breyer wrote.

Other national pharmacy chains instituted policies similar to those adopted by Walgreens and Costco amid the opioid crisis. Walmart has been accused of refusing to fulfill high dose prescriptions regularly written by certain doctors.

In a 2020 letter to the CDC, the American Medical Association urged the CDC to roll back guidelines that have "arbitrary dosage and quantity recommendations" that have been misapplied by states, national pharmacy chains and health insurance companies.