Express Scripts Inc. and Anthem Inc. are accused in a proposed class action of breaching their ERISA fiduciary duties by entering into a 10-year, multibillion-dollar prescription-drug agreement that caused plan participants to overpay for benefits (Burnett v. Express Scripts, Inc., S.D.N.Y., No. 1:16-cv-04948, complaint filed 6/24/16).

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The lawsuit is the latest development in the $15 billion battle between Anthem and Express Scripts. In March, Anthem sued Express Scripts for allegedly overcharging for prescription drugs in violation of the parties’ agreement.

Two months later, two health plan participants sued both companies under the Employee Retirement Income Security Act challenging Express Scripts’ alleged overbilling.

The latest lawsuit, filed June 24 in the U.S. District Court for the Southern District of New York, is brought by participants in three medical plans sponsored by Verizon Communications Inc., AmTrust Financial Services Inc., and LG&E and KU Energy LLC. The plans have more than 26,000 participants combined.

Billion-Dollar Agreement

In December 2009, Express Scripts paid approximately $4.67 billion to Anthem for the exclusive right to provide pharmacy benefit management services, the complaint says. Under this agreement, Express Scripts supports Anthem’s business in over 24 states and services more than 15 million of its members.

According to the complaint, Anthem breached its ERISA duties by entering into an agreement with Express Scripts that was imprudent and not in the best interests of its members. In addition, Anthem allegedly failed to properly monitor and prevent Express Scripts from overcharging.

The complaint alleges that Anthem used Express Script’s nearly $5 billion payment to fund stock buybacks in 2009 and 2010, which ultimately enriched Anthem’s stockholders and management, rather than passing this money through to participants.

Read more >>

A report from the International Foundation of Employee Benefit Plans asked employers how they are managing prescription drug costs and responses revealed that, among other expense-saving methods, 18% of organizations are setting limits for specialty and biotech drugs.

The estimated price tag for treating a patient with a specialty drug is high. For some chronic conditions, a year of treatment with a specialty drug can exceed $100,000. In many cases, specialty drugs represent only about 1% of all prescriptions but account for one-quarter to one-third of total drug spend.

The most popular cost-controlling methods for organizations are tiered pricing and a mail-order drug service, with 89% and 82% of employers currently implementing these initiatives. As for drug formulary lists, 71% of organizations have this tool in place, and 63% are using a pharmacy benefit manager (PBM).

Tyrone’s comment:  CMS conducted an analysis to determine whether or not preferred networks and mail-order drug service deliver on the purported savings. The conclusion is that in some cases they do not. The difference maker is likely two things: negotiation skills and level of PBM industry knowledge.

Other techniques include:

• Reference-based pricing/cap on certain drugs – 6%
• Collective purchasing groups – 14%
• Coverage of select over-the-counter drugs – 15%
• On-site or near-site pharmacy – 16%
• Discontinued or limited coverage of cosmetic/lifestyle drugs – 17%
• Preferential pricing agreements (negotiated with pharmacies/manufacturers) – 18%
• Drug card program – 28%
• Preferred provider networks – 35%
• Mandated use of generic drugs when available – 37%
• Prior authorization/utilization management – 38%
• Step therapy/therapeutic substitution – 46%

Employers are finding it necessary to vigilantly watch prescription drug prices. They are striving to keep costs controlled by trying new approaches like using five or more tiers for cost sharing, where the highest tier is for the highest-priced drugs—usually specialty drugs. Moving forward, employers will continue exploring unique cost-saving measures like referenced-based pricing.

by Julie Stitch

There are two levels of service a consulting firm can perform on a group pharmacy benefit plan: review and audit. In truth, many plan sponsors believe they’re buying an audit when in fact they’re receiving only a review. Because the identification of risk is vastly different between the two consulting services, plan sponsors and their agents should know the differences.

[Figure 1]

Review

The problem is that a review provides only limited assurance and is substantially narrower in scope when compared with an audit.

• A review does not include an investigation of the plan sponsor’s internal control system or its risk of excessive overpayments, which could be an area of interest for CEOs, CFOs and plan administrators.
• A review does not use true acquisition cost reference-based pricing. For the most part, a review checks for contract compliance. Errors found during a review are likely just billing mistakes and don’t account for all risks. Risk is measured by exposure to overpayments.
• A review costs less than an audit and, as a result, is often viewed as the preferred option (see figure 1).
• Reviews disclose overpayments related specifically to contract terms. It does not help to disclose payments over AAC (average acquisition costs) or withheld manufacturer revenue which the PBM retains as a service fee or hidden cash flow.

The lesson here is that a company should hold an in-depth discussion in advance of the consulting firm’s initial engagement to ensure that there is sufficient value in performing a review, or determine whether a different option would be better fit. Ultimately, a review is a very effective option for companies that are comfortable with the limited assurance given in the report.

Audit

An audit provides the highest level of assurance that the plan sponsor is free from excessive overpayments. Under an audit, the pharmacy benefit management consulting firm is required to:

• Obtain an understanding of the client company’s internal controls and assess hidden cash flow (paid) risk.
• Corroborate figures and disclosures included in the final report by obtaining audit evidence through inquiry, physical inspection, observation, third-party confirmation, examination, analytical procedures and other procedures.
• The audit is usually substantially higher in cost than a review. However, the evaluation of risk (overpayments) is more substantial compared to a review.

Often overlooked, in far too many PBM contracts, is how much cash the PBM actually generates for itself; on a per client basis. I have a simple equation that every consultant, broker and benefits expert should employ to calculate PBM service costs but few do.  Here it is absence of charge:

When plan sponsors can account for PBM service revenues they make better decisions about their pharmacy spend. In addition, they will discover the key to cost-containment in the pharmacy benefit is primarily mitigating the PBMs profit not the pharmaceuticals.

Some might bark at this notion but keep this in mind. Offering a pharmacy benefit is inherently expensive thus the key is not to overpay. Groups achieve this by making sure they benefit more from the PBMs buying power than the PBM itself.

Choosing an audit or a review is mainly a question of your needs and the needs of your stakeholders. Should cost be considered? Yes, but it should not be the driving factor unlike the choice for a PBM vendor. Proper planning and discussions with your cross-functional team should yield the right decision for your company – one that will fulfill your needs in the most cost-effective manner.

This document is updated weekly, but why is it important?  Healthcare marketers are aggressively pursuing new revenue streams to augment lower reimbursements provided under PPACA. Prescription drugs, particularly specialty, are key drivers in the growth strategies of PBMs, TPAs and MCOs pursuant to healthcare reform. 

The costs shared below are what the pharmacy actually pays; not AWP, MAC or WAC. The bottom line; payers must have access to “reference pricing.” Apply this knowledge to hold PBMs accountable and lower plan expenditures for stakeholders.

Step #1:  Obtain a price list for generic prescription drugs from your broker, TPA, ASO or PBM every month.


Step #2:  In addition, request an electronic copy of all your prescription transactions (claims) for the billing cycle which coincides with the date of your price list.

Step #3:  Compare approximately 10 to 20 prescription claims against the price list to confirm contract agreement.  It’s impractical to verify all claims, but 10 is a sample size large enough to extract some good assumptions.

Step #4:  Now take it one step further. Check what your organization has paid, for prescription drugs, against our pharmacy cost then determine if a problem exists. When there is a 5% or more price differential (paid versus actual cost) we consider this a problem.

Multiple price differential discoveries means that your organization or client is likely overpaying. REPEAT these steps once per month.

— Tip —

Always include a semi-annual market check in your PBM contract language. Market checks provide each payer the ability, during the contract, to determine if better pricing is available in the marketplace compared to what the client is currently receiving.

When better pricing is discovered the contract language should stipulate the client be indemnified. Do not allow the PBM to limit the market check language to a similar size client, benefit design and/or drug utilization. In this case, the market check language is effectually meaningless.

Collectively, the approaches outlined below have enabled employers to save 20-55% less per capita on health benefits versus a standard employer approach. Cost savings compound over the years. While too many employers accept annual premium increases of 10% or more, wise employers are converting overspending on healthcare into delivering better value to their stakeholders, whether they are employees, union members, citizens or shareholders.

Habit #1: First things first: Value-based primary is the bedrock of the highest-functioning health systems

Value-based primary care stands in stark contrast to the milk-in-the-back-of-the-store primary care model that has been a pervasive driver of the scourge of over-treatment. Grassroots change at the city level is recognizing the importance of primary care and how it can attract major employers. IBM IBM +0.85% is a leading example of how wise organizations recognize that health benefits are the second biggest cost input into their business. Like any other item in their supply chain, they will shift to high-value suppliers. It turns out that locating jobs in high-value healthcare communities boils down to those communities with the strongest foundation of valued-based primary care.

Habit #2: Be proactive managing pharmacy benefits

Successful Rx management has been described as playing whack-a-mole. The pharmacy benefits management (PBM) industry has many firms that are well known for hidden fees, shell game pricing and taking drug manufacturers’ money to promote specific drugs.

There are three pillars to manage drug cost and quality:

• Review PBM arrangements to determine the “spread” (PBM profit) and whether more favorable terms are available.
• Formulary changes that create a large financial impact with next to no disruption.
• Carefully manage specialty drug acquisition and use.

This document is updated weekly, but why is it important?  Healthcare marketers are aggressively pursuing new revenue streams to augment lower reimbursements provided under PPACA. Prescription drugs, particularly specialty, are key drivers in the growth strategies of PBMs, TPAs and MCOs pursuant to healthcare reform. 

The costs shared below are what the pharmacy actually pays; not AWP, MAC or WAC. The bottom line; payers must have access to “reference pricing.” Apply this knowledge to hold PBMs accountable and lower plan expenditures for stakeholders.

Step #1:  Obtain a price list for generic prescription drugs from your broker, TPA, ASO or PBM every month.


Step #2:  In addition, request an electronic copy of all your prescription transactions (claims) for the billing cycle which coincides with the date of your price list.

Step #3:  Compare approximately 10 to 20 prescription claims against the price list to confirm contract agreement.  It’s impractical to verify all claims, but 10 is a sample size large enough to extract some good assumptions.

Step #4:  Now take it one step further. Check what your organization has paid, for prescription drugs, against our pharmacy cost then determine if a problem exists. When there is a 5% or more price differential (paid versus actual cost) we consider this a problem.

Multiple price differential discoveries means that your organization or client is likely overpaying. REPEAT these steps once per month.

— Tip —

Always include a semi-annual market check in your PBM contract language. Market checks provide each payer the ability, during the contract, to determine if better pricing is available in the marketplace compared to what the client is currently receiving.

When better pricing is discovered the contract language should stipulate the client be indemnified. Do not allow the PBM to limit the market check language to a similar size client, benefit design and/or drug utilization. In this case, the market check language is effectually meaningless.

Look closely at ads for most medications that appear in magazines, on TV or on the internet. Along with an extensive list of side effects and possible uses, you’ll find an offer to explore options that will make it easier for patients on commercial insurance to afford the expensive meds.

They’re called copayment coupons and cards, discounts and patient-assistance plans. These financial breaks for consumers are part of a $7 billion effort by pharmaceutical firms in 2015—up from $1 billion in 2010—designed to help patients access drugs they otherwise can’t afford, according to IMS Health.

While the coupons have improved patient compliance, drug manufacturers are covering all or part of the copays to bypass efforts by insurers and pharmacy benefit managers to rein in the rising price of drugs. One key strategy is to put lower copays on lower-cost preferred drugs and raise copays on higher-priced medicines that may not offer additional value for their higher cost.

The patient-assistance portion of such drug company programs, designed to help patients access the most expensive meds, represents only 5% to 10% of the $7 billion, according to IMS. The rest goes for coupons.

“Coupons eliminate members’ cost share for high-cost brand medicine, removing the financial incentive for them to choose a lower-cost generic or preferred brand,” said Patrick Gleason, director of health outcomes at Prime Therapeutics, a St. Paul, Minn.-based PBM. “This circumvents formulary design, putting the insurer on the line to pay for more non-preferred brand-name medicine—at a price that is often inflated to recapture manufacturer revenue lost from offering coupons in the first place.”

One example: A patient with rosacea, the common skin disorder, told Modern Healthcare how her dermatologist prescribed Monodox, an oral antibiotic that is generically known as doxycycline monohydrate. The branded version is made by Exton, Pa.-based Aqua Pharmaceuticals.

She said that the medicine would cost $1,200 a month without insurance and $800 a month through her Blue Cross plan. But the dermatologist’s office gave her a one-year copay coupon that whittled her out-of-pocket cost down to $30 a month.

A generic doxycycline monohydrate would cost as little as $41 in the Chicago area, according to GoodRx.com, which conveniently links to coupon offers. Aqua did not respond to a request for an interview. The patient said her dermatologist never mentioned a generic was available. The FDA Orange Book lists over a dozen companies that have the right to manufacture doxycycline monohydrate.

Holly Campbell, senior director of communications at Pharmaceutical Research and Manufacturers of America, the Washington, D.C.-based trade group, defended copay offset coupons and patient-assistance plans.

“Today, too many patients find that they are facing very high cost-sharing that puts their ability to stay on a needed therapy at risk. Some patients face coinsurance as high as 40%, and it is becoming increasingly common that patients must meet a deductible before any prescription-drug coverage applies. In such cases, patients often are less adherent to therapy, which can lead to long-term problems for patients and the healthcare system,” she said.

Campbell noted that payers have tools, such as copays and step therapy, to prevent patients from accessing certain medicines without first meeting plan protocols. She stressed that the vast majority of all prescriptions—including those eligible for patient assistance—are filled using generics or plan-preferred brands.

Tyrone’s comment: There are always three sides to a story. In this scenario, we have pharmaceutical manufacturers on one side, PBMs on the other and somewhere in the middle is the truth. Pharmaceutical manufacturers need to start offering more coupons when there isn’t a therapeutically equivalent product available or fewer options. Then the argument “we’re doing this for patients” would have significantly more weight. Next, PBMs should pass-through 100% of all manufacturer revenue (not just rebates) back to the plan sponsor and eliminate profit-taking from network spreads and excessive mail-order mark ups. PBMs would then raise admin fees to offset some of the lost cash flow. Everybody wins including patients and those cutting the checks – plan sponsors! There you have it, the truth.

Couponing is on the rise. In a report released in May, the Boston-based Tufts Center for the Study of Drug Development said that there are copay coupons for over 700 medications now, up from about 75 in 2009. IMS Health found that 10% of prescriptions used a copay card in 2015, up from 3% in 2010.

Dr. Joseph Ross, an internist at Yale University School of Public Health, said manufacturers use coupons because they help attract patients and enhance revenue. Ross co-authored an analysis of the phenomenon titled “Prescription-drug coupons—no such thing as a free lunch” in the New England Journal of Medicine in September 2013. Researchers found 62% of coupons (231 of 374) were for brand-name medications for which lower-cost therapeutic alternatives were available.

Crestor (rosuvastatin calcium), which reduces LDL or bad cholesterol and went generic this year, will be the next coupon battleground. London-based AstraZeneca, which makes Crestor, offers coupons that enable patients to pay as little as $3 a month for a drug that retails at about $200 a month. Watson Pharmaceuticals of Parsippany, N.J., received Food and Drug Administration approval for the first generic in April and others are expected.

There’s a lot at stake: Crestor had U.S. sales of $6.3 billion in 2015, ranking it fourth on IMS Health’s list of top-selling medicines in the U.S. Mike Crichton, vice president of cardiovascular at AstraZeneca, offered a humanitarian motive to coupons: “We have to prioritize access and affordability so that patients who need our medicines have access to them,” he said. “We offer savings cards as an option for eligible patients to help reduce the burden of cost at the pharmacy level.”

Ross of Yale said coupons may help individual patients make ends meet, but are harmful to the overall health system and insurance plans that pick up most of the costs.

Eileen Wood, chief pharmacy officer at CDPHP, an Albany, N.Y., not-for-profit health insurance plan, said manufacturers make up every dollar spent on copay coupons and patient assistance plus 20%. “The drug companies are not giving away anything. They have to have a return to their stockholders,” she said. “So if a patient-assistance program is giving $1,000 away, they have to add $1,200 to the cost of the drug.”

To fight back against the tactic, PBMs are beginning to exclude drugs with coupons when cheaper clinically equivalent alternatives are available. “Payers are responding to rising drug costs with new, more restrictive formulary management policies,” said Joshua Cohen, a Tufts health economist. “With prescription-drug spending in the U.S. having grown more than 8.5% in 2015, and projected to continue rising, PBMs are likely to expand their exclusion lists.”

By Howard Wolinsky

[Figure 1]

A commodity is a good or service which has no distinguishable characteristics among the good or service. Here are some examples of a commodity:

Corn
Soybeans
Rice
Coffee
Wheat
Gold
Live Cattle
Natural Gas
Oil

In other words, one barrel of oil, a bushel of wheat or ounce of gold is essentially the same or indistinguishable from another of its variety. The opposite of a commodity is a specialty good or service. Most PBMs attempt to differentiate their services out of the commodity class because the only way to compete in a commodity market is on price.



On the other hand, specialty goods and services warrant higher prices because of a specific feature or benefit. In the procurement of PBM services, buyers wrongly place high importance on a “perceived” benefit. This is different from a specific benefit or feature. The cost of services depends heavily on the PBMs pricing model.

Traditional or Legacy

• The PBM discloses cash flows in the sponsor’s contract. Learn more about this here.

Pass-Through

• PBM passes through all rebates and network prices to the sponsor (no spread pricing).

Fiduciary or Binding Transparency

• The PBM provides full accounting w/auditing provisions, passes through all manufacturer revenue and more competitive drug pricing than industry norms.

Commodity products are differentiated by price only as they are homogeneous or the same. Don’t fall for the marketing spin or it will lead to excessive remuneration to your TPA, ASO or PBM. Generally speaking pharmacy benefit managers offer the same services (see figure 1) and differ only in the price you pay for said services. 

This document is updated weekly, but why is it important?  Healthcare marketers are aggressively pursuing new revenue streams to augment lower reimbursements provided under PPACA. Prescription drugs, particularly specialty, are key drivers in the growth strategies of PBMs, TPAs and MCOs pursuant to healthcare reform. 

The costs shared below are what the pharmacy actually pays; not AWP, MAC or WAC. The bottom line; payers must have access to “reference pricing.” Apply this knowledge to hold PBMs accountable and lower plan expenditures for stakeholders.

Step #1:  Obtain a price list for generic prescription drugs from your broker, TPA, ASO or PBM every month.


Step #2:  In addition, request an electronic copy of all your prescription transactions (claims) for the billing cycle which coincides with the date of your price list.

Step #3:  Compare approximately 10 to 20 prescription claims against the price list to confirm contract agreement.  It’s impractical to verify all claims, but 10 is a sample size large enough to extract some good assumptions.

Step #4:  Now take it one step further. Check what your organization has paid, for prescription drugs, against our pharmacy cost then determine if a problem exists. When there is a 5% or more price differential (paid versus actual cost) we consider this a problem.

Multiple price differential discoveries means that your organization or client is likely overpaying. REPEAT these steps once per month.

— Tip —

Always include a semi-annual market check in your PBM contract language. Market checks provide each payer the ability, during the contract, to determine if better pricing is available in the marketplace compared to what the client is currently receiving.

When better pricing is discovered the contract language should stipulate the client be indemnified. Do not allow the PBM to limit the market check language to a similar size client, benefit design and/or drug utilization. In this case, the market check language is effectually meaningless.

On June 1, 2016, in the southern district of Texas Federal Court, United HealthCare administered self-insured ERISA plan, AT&T Inc. and its Plan Administrator Larry Ruzicka were sued in federal court. According to the complaint: “This dispute arises out of Defendants’ ongoing and systematic ERISA violations consisting of an elaborate scheme to abstract, withhold, embezzle and convert self-insured Plan Assets.

An almost identical separate suit was filed against another United HealthCare administered health plan, GAP Inc. less than 30 days before this case was filed.  According to industry experts, more and more CEO’s, CFO’s and Plan Administrators are exposed to tremendous liabilities due to poorly managed or “Head in the Sand” monitoring practices. As we have written about and predicted, this is evidence of the growing trend of self-insured health plans being exposed to tremendous liability by TPAs.

Tyrone’s comment:  It’s simple, if a plan sponsor doesn’t have full auditing rights they’re likely overpaying; not just for medical, but pharmacy claims as well. These overpayments can lead to lawsuits against the CEO, CFO and others. “We didn’t know…” is no longer an excuse. For starters, do you know how much your company (or client) pays the PBM for providing pharmacy benefit management services? This is different from plan costs. Somewhere hidden in the plan costs are the PBM’s service revenues. To not know this dollar amount is negligent. Click here to learn more.

One of the serious problems these cases present to the self-insured health plans is inaccuracies on the Form 5500/Tax filings. ERISA requires IRS Form 5500 reporting to be accurate. AT&T, GAP Inc. and others may be reporting incorrect amounts on direct and indirect compensation, for example, based on the alleged facts of these cases.

The Court Case Info: RedOak Hospital, LLC v. AT&T Inc., AT&T Savings and Security Plan and Larry Ruzicka, in the United States District Court for the Southern District of Texas, Houston Division, Case 4:16-cv-01542, Filed on 06/01/16.

According to court documents, REDOAK Hospital Plaintiff filed a DOL EBSA Complaint on the alleged overpayment offset by the Defendants Plan, and the plan’s co-fiduciary, UHC, prior to filling this ERISA lawsuit, alleging:

“This dispute arises out of [AT&T’s]ongoing and systematic ERISA violations consisting of an elaborate scheme to abstract, withhold, embezzle and convert self-insured Plan Assets that were approved and allegedly paid to Plaintiff for Plaintiff’s claim, to purportedly, but impermissibly, satisfy a falsely alleged overpayment‖ for another stranger claim, especially when the stranger is a plan beneficiary of a fully-insured plan that is insured by the Plan’s co-fiduciary, United Healthcare (hereinafter, “United”).[AT&T] knew or should have known that the Plan’s overpayment recovery provisions cannot be triggered until there is an allegation of overpayment by the Plan to the Plan Beneficiary subject to this action, and that converting the Plan Assets by a fiduciary or co-fiduciary of the Plan, in this case United, to the use of another, and ultimately its own use, to pay to its own account is absolutely prohibited under ERISA statutes. [AT&T] and United have conspired and engaged in many other embezzlement schemes, including, but not limited to, making deductions on entitled claim payments through the misrepresentation that a Viant/Multiplan contract is in place with Plaintiff; this action is only challenging the cross-plan offset embezzlement scheme discussed in detail below.”, according to court documents.

According to RedOak attorney Ebadullah Khan, this and the Gap Inc. case represent the first of many more cases the hospital intends to bring for the same alleged violations. Kahn told Law360, “Prior to seeking judicial review for this case, RedOak Hospital had exhausted any and all internal/administrative appeal requirements,” Khan went on to say, “The cross-plan offset practice at issue in this case is the most common form of denial for RedOak Hospital, and as a result RedOak Hospital is preparing to file approximately 100 more cases similar to this AT&T complaint.”

As we have accurately predicted, the No. 1 health care claim denial in the country today is the overpayment recoupment and claims-offset.

Click here to read more.