Bombshell FTC Lawsuit Against PBMs
The Federal Trade Commission (FTC) unveiled a bombshell lawsuit against the Big 3 pharmacy benefits managers (PBMs) – CVS’ Caremark, Cigna’s Express Scripts, and United’s OptumRx – charging that the PBMs have used formulary placement and rebates to rig the system and disadvantage the American public at the point of sale. The FTC says that the PBMs use the formulary and rebate scheme to line their pockets and to attract business, leaving diabetics dependent on insulin with high prices and often an inability to pay.
Now I have defended PBMs in the past for some of the good they do. I believe the brand drug makers are the real culprits in the drug pricing problem in America. But I also welcome the lawsuit as we need to change the drug price paradigm. Yes, prices are the main culprit and brand drug makers shoulder that blame. But the perverse rebate system also creates high prices, perverse incentives, a lack of transparency, and often means consumers get little or no benefit of discounts at the point of sale. It also materially impacts the adoption of generics and biosimilars in the market. Those rebates are kept by the PBM, health plans, or employer group clients.
In his years at the White House, Donald Trump had proposed eliminating rebates by changing the anti-kickback statute. While there are pros and cons to doing so, I wonder if the time has arrived to go this road. The current construct can no longer be countenanced.
I am a little disturbed by the sole focus on PBMs as the culprits here. Certainly, brand drug makers bear as much blame here. I do not think the so-called manipulation of the market and anti-competitive behavior is limited to the PBMs, although much of it appears to have begun with exclusionary formularies more than a decade ago. The FTC did put brand drug makers on notice they could be next, but should the FTC have waited if they were not ready to file against the brand drug makers?
I would say that the FTC faces an uphill fight to win given the posture of courts of late. But change needs to happen. The suit alone will shine a new light on the PBM transparency movement and usher forward reforms from Capitol Hill.
There is also the question of corporate responsibility. While some companies have done so, why aren’t more companies demanding in their PBM agreements that rebates get passed through at the point of sale?
PBMs and brand drug makers should get ready for the brave new world of antitrust lawsuits and activity. I think a Harris administration will be very active on this front and a Trump administration may be more active than in the past as well.
Additional articles: https://www.fiercehealthcare.com/payers/ftc-formally-sues-pbms-over-insulin-prices-and-warns-manufacturers and https://www.beckershospitalreview.com/legal-regulatory-issues/ftc-sues-nations-3-largest-pbms-10-notes.html and https://www.managedhealthcareexecutive.com/view/ftc-sues-pbms-for-artificially-hiking-insulin-prices
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#pbms #drugpricing #branddrugmakers #ftc #antitrust
https://www.modernhealthcare.com/legal/express-scripts-optum-cvs-caremark-ftc-complaint-insulin