An HIV patient is using an anti-Obamacare provision in the Ohio Constitution to sue the state for forcing him to use CVS pharmacies if he is to receive benefits under a government program that helps with drug costs.

Edward J. Hamilton of Columbus filed suit this week in the Ohio Court of Claims against the state Department of Health in connection with the department's HIV Drug Assistance Program, which requires participants to get their medicine through the national CVS pharmacy chain.

And a letter by the department that was attached to Hamilton's lawsuit tells patients in the drug-assistance program that “CVS Caremark will provide ALL of the medications covered on the formulary.”

Hamilton didn't agree with the politics that led to a 2011 constitutional amendment saying that no law “shall compel, directly or indirectly, any person, employer, or health-care provider to participate in a health-care system.”

However, he said, it's applicable to a program that drives some Ohio HIV patients from the pharmacy of their choice to CVS — including its mail-order business, which he said has forced him to face delays getting lifesaving drugs, sent him empty bottles and created other problems.

Explaining why he decided to use the constitutional provision to take on the drug program's restrictions, Hamilton, a longtime HIV activist, said: “You might as well use their own poison on them. It's like holding a mirror up to a witch.”

The suit is related to another that was filed last week against the state health department in the Court of Claims and one that was filed against CVS in federal court in Ohio in March. The suits seek damages from those defendants over a mailing by CVS to 6,000 drug-program participants that printed “HIV” above the names of the addressees, making the confidential health information available to anyone who saw the letters.

Because of his dissatisfaction with CVS, Hamilton does not participate in the drug-assistance program. His suit accuses the Department of Health of making the “public-policy choice to steer and mandate over 6,000 persons in the Ohio Drug Assistance Program to use CVS Health and all related entities (including Caremark LLC, CVS Pharmacy and its CVS Specialty and its mail-order pharmacies) in violation of Article 1, Sec. 21 of the Constitution of the state of Ohio.”

Hamilton is asking the court to suspend CVS' contract with the health department until the requirement that all medicines in the drug-assistance program come from CVS is removed. He's also seeking unspecified damages and attorney fees.

“We have not been named in this lawsuit and have not had the chance to review the allegations or underlying facts,” CVS spokeswoman Christina Beckerman said in an email. “However, CVS Caremark’s highest priority is assuring patient access to clinically appropriate drugs while managing overall health-care costs for our clients, and we offer our clients multiple clinical tools and pharmacy network options targeted at achieving both of these goals.”

Since March, The Dispatch has been examining pharmacy benefit managers such as CVS Caremark. The company, the country's seventh-largest by revenue, has a close relationship with state agencies. For example, four of the state's five Medicaid managed-care organizations contract with CVS to manage about $3 billion a year in prescription benefits.

Health department spokesman Russ Kennedy said the agency wouldn't comment on issues related to a lawsuit — including a question about why it agreed to a state contract spending state and federal funding for HIV drugs that locked out all pharmacies but CVS.

Hamilton said that for program participants, the choice is to use CVS or lose assistance.

“We're deprived of assistance even though the state applied to the federal government in our name,” he said.

mschladen@dispatch.com

@martyschladen