More Deception from Express Scripts!
https://pharmacistactivist.com/2024/September_2024.shtml
The lead commentary in the August issue of The Pharmacist Activist was, “Express Scripts Attempts to Change its Identity,” that responds to its full-page advertisement in major newspapers. The PBM has followed that with another full-page ad that continues the deception and lies, but provides no transparency regarding its operations, rebates from pharmaceutical companies, steering patients to its own pharmacies, and other “facts” which they accuse its critics of ignoring. The new ad begins with the following pronouncement in large type.
WE FIGHT FOR YOUR HELP EVERY DAY.
TODAY, THAT MEANS FIGHTING THE FTC.
The text of the ad notes:
“We feel we have no choice but to sue the Federal Trade Commission. This was an extremely difficult decision to make so we want to make ourselves unequivocally clear as to why.”
(Editor’s comment: This may be the first time that Express Scripts has attempted to be “unequivocally clear,” but it is just another charade).
“But their report about the Pharmacy Benefit Manager industry published on July 9, 2024, leads us, as well as an FTC Commissioner, to believe that the agency is not acting in the public interest. That is why we are calling on the FTC to retract the report.”
(Editor’s comment: A majority of the FTC Commissioners approved the report but Express Scripts prefers that the public knows the opinion of the one Commissioner who dissented).
“We’re advocates for affordability, not misinformation.”
(Editor’s comment: The large increase in drug prices during Express Scripts’ “watch” contradicts any claims of success in achieving affordability).
“…programs we’ve developed result in up to 27% higher medication adherence and 23% fewer inpatient hospitalizations. The FTC’s report fails to acknowledge any of these findings.”
(Editor’s comment: Express Scripts can provide very specific data when it considers it to be in its own interest to do so. There are some references provided in very small type at the bottom of the advertisement. The two references provided as the source of the two statistics noted are attributed to Evernorth, the parent company of Express Scripts. There is no reason to think that this self-generated report is any more credible than the other claims made by Express Scripts).
“Reports outlining how PBMs pass nearly 100% of rebates and fees to employers, labor unions, government agencies, and health plans.”
(Editor’s comment: The most revealing word in this statement is “nearly.” Express Scripts is able to identify the specific percentage of rebates but refuses to do so. Does 90% qualify as “nearly?” 75%? 51%? The claims processed by the three major PBMs have a cost of billions of dollars. Even if they retain only a small percentage of the fees and rebates, the amount is huge. The rebate game is a self-enrichment contest that creates an incentive for higher drug prices and benefits only the PBMs and pharmaceutical companies. Everyone else loses – it is fraudulent and must be terminated).
“We’re advocates for facts, not conjecture.”
“We’re advocates for objectivity, not bias.”
“We’re advocates for due process, not convenient timing. Billions of data points were provided by the PBMs to the FTC in response to their demands.”
(Editor’s comment: “Billions of data points” suggest that the PBMs were responsive to the FTC’s request for information. However, the FTC was delayed and frustrated in addressing concerns about PBMs because they did not respond in providing requested information on a timely basis and most likely are still withholding information needed for a complete analysis of its operations and monopolistic practices. The allegation by Express Scripts that the FTC used “convenient timing” in issuing its report is disingenuous. The FTC had announced its plan to sue Express Scripts and other PBMs. It is actually Express Scripts that is exercising “convenient timing” by suing the FTC as a preemptive action before the FTC filed its lawsuit. Express Scripts is taking a page out of Walmart’s playbook when, several years ago in anticipation of a lawsuit by the federal government for its role in opioid overdosage deaths, Walmart sued the federal government. Walmart’s lawsuit was dismissed and the one filed by Express Scripts should also be dismissed).
“We’re advocates for people. We’re advocates for health.”
“Pharmaceutical companies set and raise drug prices. PBMs lower them.”
(Editor’s comment: PBMs receive larger rebates for the most expensive drugs. More expensive drugs are often placed in the more favorable tiers of their formularies, even when less expensive alternatives are available. Patients, employers, and taxpayers pay more. Pharmacists are also victims of the greed, fraud, and policies of the PBMs, and many pharmacies have closed because they can’t survive financially).
The Express Scripts suit against the FTC seeks to have the agency retract its report that is critical of the PBMs… To challenge the statements in the FTC report, Express Scripts primarily relies on the “research” of an economist who essentially concludes that the FTC’s claims about the PBMs “are not supported by the data.” The economist’s conclusions are strongly refuted in a comprehensive analysis by 46Brooklyn Research in its detailed report of September 20, “Express Scripts, Inc. vs. The Federal Trade Commission.” The CEO of 46Brooklyn Research is Antonio Ciaccia whose investigations exposed the PBM fraud in Ohio several years ago.
The FTC lawsuit
On September 20 the FTC sued the three largest PBMs. The title and subtitle of the FTC press release are noted below:
“FTC Sues Prescription Drug Middlemen for Artificially Inflating Insulin Drug Prices”
“Caremark, Express Scripts, Optum, and their affiliates created a broken rebate system that inflated insulin drug prices, boosting PBM profits at the expense of vulnerable patients, the FTC alleges.”
The FTC press release includes the following allegations:
“CVS Health’s Caremark, Cigna’s ESI (Express Scripts), and United Health Group’s Optum, and their respective GPOs (group purchasing organizations)…have abused their economic power by rigging pharmaceutical supply chain competition in their favor, forcing patients to pay more for life-saving medication.”
“The three PBMs created a perverse drug rebate system that prioritizes high rebates from drug manufacturers, leading to artificially inflated insulin list prices…even when lower list price insulins became available that could have been more affordable for vulnerable patients, the PBMs systemically excluded them in favor of high list price, highly rebated insulin products.”
Rahul Rao, the Deputy Director of the FTC’s Bureau of Competition, notes: “Caremark, ESI, and Optum–as medication gatekeepers–have extracted millions of dollars off the backs of patients who need life-saving medications. The FTC’s administrative action seeks to put an end to the Big Three’s exploitative conduct and marks an important step in fixing a broken system…”
“…the PBMs are not the only potentially culpable actors–the Bureau also remains deeply troubled by the roles that drug manufacturers like Eli Lilly, Novo Nordisk, and Sanofi play in driving up list prices of life-saving medications like insulin. Indeed all drug manufacturers should be on notice that their participation in the type of conduct challenged here raises serious concerns, and that the Bureau of Competition may recommend suing drug manufacturers in any future enforcement action.”
“The PBMs financial incentives are tied to a drug’s list price, also known as the wholesale acquisition cost. PBMs generate a portion of their revenue through drug rebates and fees, which are based on a percentage of a drug’s list price. PBMs, through their GPOs, negotiate rebate and fee rates with drug manufacturers. Products with higher list prices generate higher rebates and fees for the PBMs and GPOs, even though the PBMs and GPOs do not provide drug manufacturers with any additional services in exchange.”
“The complaint alleges that PBMs keep hundreds of millions of dollars in rebates and fees each year and use rebates to attract clients. PBMs’ clients are payers such as employers, labor unions, and health insurers.”
For many years, pharmacists have been victimized by the deception and fraud of the PBMs, and have been very frustrated in not having our important concerns understood and/or effectively addressed by regulators, legislators, and federal agencies. Although there is much still to be accomplished, it is very encouraging that the FTC has investigated and understands the problems, and has taken action to sue the PBMs. The leaders and membership of the National Community Pharmacists Association (NCPA) are to be highly commended for providing numerous specific examples and other information that have exposed the egregious policies and terms of the PBM programs. The American Pharmacists Association (APhA) has also been very active in this regard, and both of the organizations, as well as others, are strongly supporting proposed federal legislation with bipartisan support to accomplish PBM reform. The time to accomplish this is short. Every pharmacist should contact their Senator and Representative to ask them (if it is not already known) if they are supporting the legislative proposals and urge them to support them. The specific legislative proposals are:
S. 2973/H.R. 5378: the Modernizing and Ensuring PBM Accountability (MEPA) Act;
S. 127: the Pharmacy Benefit Manager Transparency Act;
S. 3430: Better Mental Health Care, Lower-Cost Drugs, and Extenders Act.
Others have also exposed the deceptive actions of the PBMs. Matt Stoller is the Director of Research at the American Economic Liberties Projects, and an expert on monopolies. He is the author of the book Goliath: The Hundred Year War Between Monopoly Power and Democracy, and also writes the Substack publication BIG. His commentary on September 23, “Monopoly Round-Up: Lina Khan, Pharma Middlemen and ‘Tasty Rebates,'” provides excellent coverage of the FTC suit. Using Lantus as an example, he notes that its list price in 2019 was $403 for a one-month supply. During 2019, its manufacturer (Sanofi) was giving OptumRx 80% of the list price to be the preferred insulin for its patients. “That’s just $64 going to Sanofi for the drug, and $339 going to OptumRx as a kickback.” In describing how PBMs work, he states:
“They aren’t just middlemen, they are allocators of what really looks perilously close to organized crime loot to a series of conspirators, from pharmaceutical firms to insurers to benefit consultants to large employers.”
Wall Street Journal editorial
The lead editorial in the September 26 issue of The Wall Street Journal is titled, “Higher Health Premiums for All,” and the subtitle is “Lina Khan piles on the anti-PBM bandwagon, to ill effect for consumers.” I responded with the following letter to the editor:
“I usually agree with and learn from the WSJ’s editorial opinions. However, the apparent obsession with criticizing Lina Khan results in undeserved support for pharmacy benefit managers (PBMs). The PBMs wield more power and control in the selection, distribution, use, and cost of medications than prescribers, pharmacists, and even the pharmaceutical companies. Ironically, the cyclical blame game between the PBMs and Pharma enriches both groups (i.e., list prices and rebates/fees both increase). The policies of the PBMs are economically motivated and override the decisions of prescribers and pharmacists who provide the services and care for individual patients. Patients/consumers are the greatest victims when the decisions regarding medications made by their healthcare providers are challenged, changed, and/or delayed by the PBMs. I and many other health professionals are of the opinion that the PBMs have had a highly destructive impact on the scope and quality of health care, and the attainment of personalized, effective, and safe drug therapy. In many situations, the non-negotiable amount that the PBMs pay pharmacists for the medications they dispense is considerably less than the cost pharmacists pay for the medication. Many pharmacist-owned independent pharmacies have not been able to survive financially and have closed, creating a much larger number of “pharmacy deserts,” resulting in greater inconvenience and delays for patients in obtaining prescribed medications.
The FTC is on target in challenging the PBMs. If it is to be faulted at all, its action should be applicable to all prescription medications and not just insulins.”
It is unlikely that my letter will be published, but I couldn’t be silent after reading it. If any readers can use any or all of the content of this letter in your communications with the media, legislators, or others, please feel free to do so in your own message. It is not necessary to identify me as the source.
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