CVS Spoken Rx Settlement Agreement

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This page is a settlement agreement between CVS and the American Council of the Blind. Talking prescription labels are now available in every CVS store in the United States. The CVS talking label program is called Spoken Rx. Talking labels help blind people take their medication safely. They also help others who cannot read a standard print label. Spoken Rx is the first talking label reader built into the mobile application of a national pharmacy chain. For people without a mobile device, CVS also offers a stand-alone speaker. It can read the Spoken Rx labels. This agreement has details about the Spoken Rx program. There is also a press release about Spoken Rx sent out on November 30, 2021. CVS and ACB worked on this initiative using the process called Structured Negotiation. That strategy allows people to work together to solve legal problems without conflict, lawsuits, or run-away costs. The second edition of Lainey’s book on Structured Negotiation was published in October 2021.

screenshot of CVS webpage with the headline "“Hi! It's your prescription talking.” There is an image of a mobile phone and a prescription bottle with a big heart around it.

Congratulations to CVS and the American Council of the Blind. Posted here is the talking prescription label settlement agreement reached by ACB, CVS, and an individual CVS customer. The agreement describes the nation’s first in-app talking label technology offered by a major pharmacy. It is available in every CVS location in the United States.

The parties reached this agreement in Structured Negotiation — no lawsuit was needed or filed. The Law Office of Lainey Feingold and Linda Dardarian of the Oakland, California firm of Goldstein, Borgen, Dardarian & Ho were the lawyers for ACB in the negotiation. Kim Charlson, former president of the ACB and an international expert on talking labels was integral to these negotiations.

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SPOKEN RX SETTLEMENT AGREEMENT

This Settlement Agreement (the “Agreement”) and the related and incorporated document entitled Confidential Addendum to Settlement Agreement (collectively referred to as the “Full Agreement”) are entered into by and between the American Council of the Blind (“ACB”) and Anita van der Linden (collectively referred to as “Claimants”), and CVS Pharmacy, Inc. (“CVS”). Claimants and CVS are collectively referred to as the “Parties.”

RECITALS

A
ACB is a non-profit organization that provides advocacy services on behalf of individuals who are blind or who have visual impairments. ACB is incorporated in Washington D.C. and has its place of business in Alexandria, Virginia.
B
Anita van der Linden is a blind CVS customer and a resident of California.
C
CVS owns and operates a nationwide retail pharmacy chain, with stores in California and other states across the United States. CVS also provides certain retail pharmacy services through its website located at www.CVS.com.
D
In February 2014, ACB and CVS entered into a Settlement Agreement after engaging in Structured Negotiation under which CVS agreed to provide talking prescription labels through cvs.com mail order to customers with visual impairments across the United States. During the implementation period of that Settlement Agreement, the Parties began negotiations to expand CVS’ talking prescription offerings.
E
In or about January 2016, Claimants and CVS entered into a Structured Negotiations Agreement whose principal goal was to address the availability of talking prescription labels for medications dispensed at CVS stores (as compared to through cvs.com).
F
Since entering into Structured Negotiation as described above, the Parties have worked together in good faith to expand CVS’ audible Prescription Label Information offerings. As a result, CVS developed Spoken Rx™, a CVS proprietary solution that reads aloud label information as described in this Agreement. Spoken Rx is the first in-app prescription reader to be developed by a national retail pharmacy.
G
The Parties enter into the Full Agreement to settle and resolve the disputes between them that arise out of or are related to the issues set forth in their 2016 Structured Negotiations Agreement.

NOW, THEREFORE, in consideration of the recitals outlined above, and for other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Incorporation of Recitals.
The recitals outlined above are incorporated by this reference into the terms and conditions of the Full Agreement.
2. Duration of Agreement.
The Full Agreement shall become effective on November 1, 2021 (the “Effective Date”) and shall remain in effect until October 31, 2023 (the “Expiration Date.”).
3. Spoken Rx Definition and Details.
As further described below, Spoken Rx is a CVS proprietary solution that reads aloud Prescription Label Information. Spoken Rx offers CVS Pharmacy patients audible versions of Prescription Label Information in two formats: One format includes Prescription Label Information encoded on an RFID sticker placed on a prescription container dispensed by CVS Pharmacy personnel (“Spoken Rx RFID Sticker Information” or “Spoken Rx Sticker”). The other format of Spoken Rx includes audible versions of additional Prescription Label Information available through the CVS mobile app for iOS and Android (“Spoken Rx Enhanced App Information”).

3.1. Accessing Spoken Rx RFID Sticker Information.
As described below, there are two ways for CVS Pharmacy patients to access information encoded on a Spoken Rx RFID sticker:

3.1.a. Through the CVS Pharmacy Mobile Application.
3.1.a.a.
As of the Effective Date the CVS Pharmacy app will read aloud the following information encoded on the Spoken Rx RFID Sticker when a patient opens Spoken Rx in the CVS mobile app and places their mobile device next to the Sticker: (i) Patient Name, (ii) Drug Name/Dose, (iii) Directions for Use, (iv) Pharmacy Address, and (v) Pharmacy Phone Number.
3.1.a.b.
On or before July 1, 2022, CVS will include the following additional Prescription Label Information on the Spoken Rx RFID Sticker: (i) the phone number for the patient’s home pharmacy store, (ii) the discard-after date for the medication in the container, and (iii) warning information that mirrors warning information appearing on the printed prescription label.
3.1.b. Through the CVS Spoken Rx Stand-Alone Speaker.
As further described in Section 3.13 below, CVS is working to develop and obtain a stand-alone RFID reader device that does not require the use of a smart phone, tablet, or similar iOS or Android mobile device to read aloud the Spoken Rx RFID Stickers.
3.2. Accessing Spoken Rx Enhanced App Information.
CVS Pharmacy patients using their mobile device to access the Spoken Rx RFID Sticker Information will be able to obtain Spoken Rx Enhanced App Information as follows

3.2.a.
On or before December 31, 2021, the Spoken Rx Enhanced App Information will include an audible version of the following Prescription Label Information: (i) Prescriber Name; (ii) Quantity; (iii) Number of Refills by Date; (iv) Date Filled; (v) Complete important Information (Warning Labels); (vi) Pharmacy Advice; and (vii) Time of Day to Take Medication.
3.2.b.
On or before December 31, 2021, where Medguides and/or Monographs are available for a particular medication, the Spoken Rx Enhanced App Information will include audible versions of Medguides and Monographs for medications dispensed with a Spoken Rx RFID chip.
3.3. Unanticipated Delay.
In the event that CVS receives information indicating that the Spoken Rx Enhanced App Information described in Sections 3.1.1.2, 3.2.1 and/or 3.2.2 is reasonably likely to be delayed beyond the dates specified, CVS shall provide reasonable notice to Claimants. The Parties shall then meet and confer as to a mutually agreeable timeline for the availability of the Spoken Rx Enhanced App Information under this Section. Disputes regarding the timeline will be handled as a dispute pursuant to this Agreement.
3.4.
CVS has solicited and, in good faith, considered input from the ACB in designing and implementing Spoken Rx. CVS agrees to maintain Spoken Rx, subject to the enhancements described in Section 3 and its subparts, in a substantially similar format to that in existence as of the Effective Date. To the extent that CVS considers any material modifications to the design or user experience of Spoken Rx, CVS will notify the ACB in advance and, in good faith, consider feedback from the ACB on the proposed modifications. No material modifications to the design or user experience will diminish the accessibility or usability of Spoken Rx.
3.5. Requesting Spoken Rx.
CVS patients may obtain Spoken Rx RFID stickers upon request by speaking with a pharmacist inside a CVS Pharmacy store, by calling 1-800-SHOP-CVS, or by calling their local CVS Pharmacy store and speaking with the pharmacist. The Spoken Rx Enhanced App Information is available to CVS patients without additional request, as long as the patient has a profile on the CVS Pharmacy mobile app, has linked their prescriptions to their profile, and has requested that their prescriptions be filled with Spoken Rx RFID stickers attached.
3.6. No Cost to Patients.
Spoken Rx will be available at no cost to the patient.
3.7. Language.
Spoken Rx RFID Sticker Information is available in English and Spanish. Spoken Rx Enhanced App Information is available in English, as well as in Spanish when a patient’s profile reflects Spanish as their preferred language.
3.8. Account Flag.
Patients who request Spoken Rx RFID stickers will have a flag added to their prescription profile in CVS’s dispensing system so that the patients’ future prescription medications will be filled with Spoken Rx RFID stickers on their prescription containers without the need to request Spoken Rx for each subsequent prescription or refill. To ensure continuity of service, patients already enrolled in Spoken Rx who change CVS retail locations are encouraged to notify the pharmacy at their new location.
3.9. Pharmacist Contact.
Other than when requesting Spoken Rx as described in this section, CVS will not require a patient to speak to pharmacy staff when picking up any prescription with a Spoken Rx RFID sticker, including the first time a Spoken Rx prescription is filled, except as otherwise required by law and/or procedures applicable to patients irrespective of visual impairment or the use of Spoken Rx.
3.10. Home Delivery.
If a particular CVS store has a home delivery option for prescriptions, those delivery options are available for prescriptions filled with the Spoken Rx Sticker.
3.11. Feedback on the Ability of Blind People to Obtain Spoken Rx Enhanced App Information.
Once prior to, and once following the launch of the Spoken Rx Enhanced App Information described in Section 3.2, CVS will work with ACB to convene (and will convene) a hosted demonstration for groups of blind and/or visually impaired users to evaluate and give feedback on the Spoken Rx Enhanced App Information. CVS will consider all feedback provided during these sessions in good faith and notify ACB in writing as to which feedback will and will not be incorporated into the CVS app within a reasonable time after each feedback session held pursuant to this section. CVS will compensate ACB and participants in an amount agreed to by CVS and ACB. Disputes regarding compensation and incorporation of feedback will be handled as a dispute pursuant to this Agreement.
3.12. Availability of Spoken Rx in CVS Stores.
As of the Effective Date, all CVS Pharmacy retail locations have been equipped to offer Spoken Rx and are able to provide prescriptions affixed with Spoken Rx RFID stickers to patients upon request.
3.13. Spoken Rx Stand-alone Reader Pilot.
In order to make Spoken Rx available to individuals who do not use a smart phone, tablet, or similar iOS or Android mobile device, CVS will develop and make available a stand-alone device that will read Spoken Rx RFID Stickers aloud (a “Stand-alone Reader”). By no later than November 1, 2021, CVS will make a Stand-alone Reader available upon request to CVS Pharmacy patients at no cost to the patient. If CVS receives information indicating that the availability of the Stand-alone Reader is reasonably likely to be delayed beyond November 1, 2021, CVS shall provide reasonable notice to Claimants. The Parties shall then meet and confer as to a mutually agreeable timeline for the availability of the Stand-alone Reader under this Section. Disputes regarding this timeline will be handled as a dispute pursuant to this Agreement.

3.13.a.
Spoken Rx Enhanced App Information will be available to patients using the Stand-alone Reader by (i) calling their local pharmacy store; (ii) calling 1-800-SHOP-CVS; or (iii) using CVS.com to access their patient profile.
3.13.b.
Nothing in this Section 3.13 shall obligate CVS to provide more than one Stand-alone Reader to a patient at no cost to the patient.
3.13.c.
Unanticipated and/or temporary supply chain disruptions and/or reasonable delays in obtaining additional orders of the Stand-alone Reader shall not be considered a violation of this Section 3.13 so long as CVS takes Reasonable Efforts to obtain a sufficient supply of Stand-alone Readers commensurate with patient demand.
3.13.d.
Information Collection during the Stand-alone Reader Pilot. During the Pilot described in this section, CVS will record the following information in a central location:

i.
Name and contact information of individuals requesting a Stand-alone Reader.
ii.
Location of the CVS store(s) from which the individuals receive their CVS prescriptions.
iii.
Positive and negative feedback from the individuals who have requested a Stand-alone Reader as reported to 1-800-SHOP-CVS and/or counsel for CVS by Claimant ACB or Claimants’ Counsel.
3.13.e. Review of Stand-alone Reader Pilot.
CVS, Claimants, and Claimants’ Counsel shall meet virtually on an agreed upon date approximately six months after CVS begins offering the Stand-alone Reader. Ten days before the meeting CVS will inform Claimants and Claimants’ Counsel of the number of CVS patients who have requested the Stand-alone Reader. CVS will also share feedback from these patients, without names or contact information for the patients. At the meeting the Parties will discuss whether the Pilot should continue, whether the Prescription Label Information available via the Spoken Rx RFID Sticker should be expanded, and any other issue relevant to the Stand-alone Reader and/or the Spoken Rx RFID Sticker.
4. Training and Information to CVS Patients.
CVS has developed job aids and other instructional materials for pharmacists at retail pharmacy stores on: (i) how to use the Spoken Rx encoder device;(ii) how to help patients with setting up and using Spoken Rx; and (iii) policies and procedures for providing prescription containers with the Spoken Rx RFID sticker to CVS patients as set forth in this Agreement. As of the Effective Date, those materials have been made available to all CVS retail locations nationwide and are available for review at any time on CVS’s retail pharmacy intranet system. Throughout the Duration of this Agreement, Claimants and/or Claimants’ Counsel may report patient experiences at specific store locations, and CVS will ensure that pharmacy personnel at those locations receive refresher training as to the procedures for making Spoken Rx available to patients as seamlessly as possible. In addition, CVS and ACB have developed a Frequently Asked Questions document to provide guidance directly to patients seeking to have their Prescription Label Information communicated via the Spoken Rx RFID Sticker. A copy of the Frequently Asked Questions may be provided to individuals who are blind and others who have difficulty reading standard print labels who are interested in Spoken Rx. The Parties shall update the Frequently Asked Questions document as needed.

4.1.
Following the launch of the Spoken Rx Enhanced App Information described in Section 3.2, CVS will update its communications to reflect those enhancements, as follows:

4.1.a.
Within sixty (60) days of the Effective Date CVS will update its FAQs, job aids and training materials disseminated to stores to ensure that all pharmacy personnel in all stores are sufficiently familiar with both the availability of Spoken Rx Enhanced App Information and the Spoken Rx RFID Sticker so they can properly instruct CVS patients in accessing both formats of Spoken Rx. CVS will provide periodic refresher training on these materials.
4.1.b.
CVS will update the Spoken Rx landing page within 90 days of the Effective Date to reflect the availability of Spoken Rx Enhanced App Information and the availability of the Stand-alone Reader.
4.2.
ACB (or Claimants’ Counsel) may advise CVS patients to contact 1-800-SHOPCVS (1-800-746-7287) with questions about Spoken Rx. Alternatively, ACB or Claimants’ Counsel may notify counsel for CVS via email.
4.3.
CVS has also developed a web site dedicated to Spoken Rx where patients can obtain additional information. As of the Effective Date, CVS has solicited and, in good faith, considered input from ACB in designing and implementing the Spoken Rx web page. CVS will notify ACB in advance and, in good faith, consider feedback from ACB on any proposed modifications to the Spoken Rx landing page, including but not limited to the updates described in Section 4.1.2. No material modifications to the Spoken Rx web page will diminish the accessibility or usability of the page.
4.4. CVS Mobile Application Accessibility and Updates.
CVS will continue to use Reasonable Efforts (defined in Section 10.10 below) to develop, design, and maintain the CVS Pharmacy mobile applications for iOS and Android, including all features, functionality and content of Spoken Rx, to meet the Web Content Accessibility Guidelines (WCAG) 2.1 AA. CVS will use Reasonable Efforts to include updates to Spoken Rx features, functionality and content in release notes for the CVS Pharmacy mobile app.
5. Maintenance of Other Accessible Prescription Label Initiatives.
Throughout the Duration of this Agreement, CVS will continue to offer audio, braille, and large print labels through cvs.com for delivery to both a CVS patient’s store or home. In the event that CVS determines that discontinuing any of the offerings described in this section is appropriate, it will notify Claimants at least 120 days before any changes to existing programs are made and the Parties will meet virtually to discuss CVS’s proposed plans. If the Parties cannot agree about CVS’s proposed plans at least 90 days before CVS seeks to implement them, either party may submit a Notice of non-compliance pursuant to Section 8.1 of this Agreement.
6. Joint Press Release.
On July 8, 2020, the Parties issued a joint press release announcing the availability of Spoken Rx at select CVS Pharmacy locations. Within 30 days of the Effective Date, the Parties will issue a second joint press release announcing further milestones in the Spoken Rx program.
7. Meetings During the Duration of the Agreement.
At the request of Claimants or CVS, and not more than once per quarter during the Duration of this Agreement, the Parties will meet to discuss implementation of this Agreement or any other issue related to technology or services for CVS customers with visual impairments. At least ten days before any such meeting the Parties will let each other know the topics for discussion.
8. Dispute Resolution Procedures.
8.1.
Any Party who believes that another Party has not complied with any provision of the Agreement shall provide that Party with a Notice of non-compliance that identifies each alleged act of non-compliance and provides a statement of the remedial action sought. The Parties shall meet and confer to resolve the alleged non-compliance within 90 days after receipt of each Notice. If the alleged non-compliance is not resolved during this 90-day period, either Party may submit their dispute to nonbinding mediation before a mediator affiliated with JAMS, or such other mediator as the Parties may jointly designate. If the dispute is not settled in mediation within a reasonable period of time, the dispute shall be submitted to binding arbitration before an arbitrator affiliated with JAMS. The arbitration hearing shall be conducted in accordance with the JAMS Streamlined Arbitration Rules & Procedures.
8.2.
The Mediation / Binding Arbitration provisions of this Agreement provide the sole and exclusive means for resolving any dispute that may arise between the Parties pursuant to this Agreement throughout the Duration of this Agreement. Claimants shall not, during the Duration of this Agreement, individually or collectively initiate legal or administrative action against CVS in any court of law or regulatory entity for any reason related to the subject matter addressed in this Agreement, including but not limited to the accessibility, usability or effective communication of CVS’s prescription label information to individuals with visual impairments.
9. Notice or Communication to Parties.
Any notice or communication required or permitted to be given to the Parties hereunder shall be given in writing by email or United States mail, addressed as follows:

To Claimants:

Linda M. Dardarian
Goldstein, Borgen Dardarian & Ho
155 Grand Avenue, Suite 900
Oakland, CA 94612
Email: ldardarian@gbdhlegal.com

Lainey Feingold
Law Office of Lainey Feingold
Email only: LF@LFLegal.com

To CVS:

Elizabeth Leifel Ash
CVS Pharmacy, Inc.
2100 E. Lake Cook Rd.
Buffalo Grove, IL 60089
Phone: (847) 559-4674
Email: elizabeth.ash@cvshealth.com

10. Miscellaneous Terms.
10.1.
The Full Agreement compromises disputed claims. The Full Agreement shall not be treated as an admission of liability by Claimants or CVS at any time, for any purpose.
10.2.
Nothing in this Agreement shall prohibit isolated or temporary interruptions in service or access due to maintenance, repair.
10.3
This Agreement has been reviewed by the Parties and their respective attorneys and advisors. The Parties have had a full opportunity to negotiate the terms and conditions of this Agreement. Accordingly, the Parties expressly waive any common law or statutory rule of construction that ambiguities should be construed against the drafter of this Agreement. The Parties agree, covenant, and represent that the language in all parts of this Agreement shall be in all cases construed as a whole, according to its fair meaning.
10.4
This Agreement and the Confidential Addendum entered into herewith are made and entered into in the State of California and shall in all respects be interpreted and enforced pursuant to the laws of the State of California, without regard to or application of any of California’s conflict of laws rules.
10.5
This Agreement and the Confidential Addendum entered into herewith, constitute a single, integrated written contract expressing the entire agreement of the Parties. There are no other agreements, written or oral, express or implied, between Claimants and CVS with respect to the subject matter hereof. The Parties acknowledge and agree that they execute the Full Agreement voluntarily and for their own purposes, and that they have not relied upon representations, statements or promises made by any of the other Parties, or by their respective agents or attorneys.
10.6.
This Agreement and the Confidential Addendum cannot be modified orally or by implication. This Agreement and the Confidential Addendum may only be modified pursuant to the terms of a written instrument that is signed by all Parties, and that expresses the Parties’ intent to modify this Agreement or the Confidential Addendum.
10.7.
The Parties to the Full Agreement agree, covenant, and represent that each and every provision of the Full Agreement shall be deemed to be contractual, and that they shall not be treated as mere recitals at any time or for any purpose. Therefore, the Parties further agree, covenant, and represent that each and every provision of the Full Agreement shall be considered severable. If a court of competent jurisdiction finds any provision of the Full Agreement to be invalid or unenforceable for any reason, that provision, or part thereof, shall remain in force and effect to the extent allowed by law, and all of the remaining provisions of the Full Agreement shall remain in full force and effect and enforceable.
10.8.
Each Party and Claimants’ Counsel shall sign one copy of this document and each such copy shall be considered an original. This document may be executed in counterparts and facsimile, electronic, and PDF signatures shall be accepted as original.
10.9.
No Party to the Full Agreement has heretofore assigned, transferred or granted, or purported to assign, transfer or grant, any of the claims, demands, or cause or causes of action disposed of by the Agreement. The Full Agreement shall bind any assigns and successors of the Parties.
10.10.
As used in this Agreement, the term “Reasonable Efforts” shall mean those efforts that a reasonable entity in CVS’s position would take to comply with the terms of this Agreement. The Parties agree, covenant and represent that the term Reasonable Efforts as used in this Agreement does not require CVS, except as otherwise expressly required in this Agreement, to alter its product offerings or to take any actions that are impossible, impracticable, or unlawful, or to take any actions that would result in an undue burden or fundamental alteration as those terms are defined in Title III of the Americans with Disabilities Act, the Department of Justice’s Title III regulations and applicable case law, or to take any actions inconsistent with applicable law. If CVS believes that any of its obligations hereunder will result in an undue burden or fundamental alteration, it shall notify Claimants in writing as soon as reasonably possible, specifying the particular action that could not be performed and the specific reason for the non-performance. Claimants and CVS will thereafter meet and confer regarding CVS’s notice. Any dispute regarding the applicability of this section, or any future action to be taken, that remains after the meet and confer session will be resolved pursuant to the Dispute Resolution provisions of this Agreement.
10.11.
The persons executing the Full Agreement each represent and warrant that they have the authority to enter into the Full Agreement, and to resolve the matters set forth in the Full Agreement, on behalf of the Party for whom they are executing the Full Agreement, and that no further approval is necessary in order for the Full Agreement to be binding on the Party for whom they are executing.