The Highs, The Lows, & The WTH’s: PUTT’s 2021 Year in Review

Dec 19, 2021

If you thought 2021, aka the follow-up to When Satan met 2020, seemed like a mixed bag of forward momentum and frustrating setbacks in the move to reform PBMs, you’re in good company. As we look over the year that was 2021, we’re encouraged by many of the high points (Louisiana Independent Pharmacies Association v. Express Scripts; Comer Forum on Drug Pricing) and positively puzzled over the rest (UnitedHealth Acquiring Change Healthcare?). You be the judge as we recall this year’s highlights:

January was a time of hope and relief as the first COVID vaccines became available to high-risk members of the public. Not surprisingly, Walgreens and CVS locked up contracts with the federal government to vaccinate residents in nursing homes and long-term care facilities, only to fumble nearly every step of the way. West Virginia made national news when its independent pharmacies quickly and efficiently vaccinated its most vulnerable populations; proving once again who the true healthcare heroes are. The fledgling Arizona Independent Pharmacy Coalition (founded and supported by PUTT members) introduced their first anti-PBM transaction fees legislation, while Florida Small Business Pharmacies Aligned for Reform (SPAR) introduced aggressive Medicaid managed care reform legislation. Overall, 43 states introduced 111 pieces of legislation intended to rein in PBM abuses and overreach.

Spirits were high in February following NCPA’s landmark announcement of a lawsuit to end DIR fees. The celebration was somewhat subdued, however, upon learning that NCPA’s lawsuit wasn’t so much about ending DIR fees as moving said fees to the point of sale. Following an in-depth conversation with NCPA CEO Doug Hoey, PUTT President Scott Newman and Executive Director Monique Whitney sought additional legal counsel to examine options for suing to end DIR fees. Meanwhile, Louisiana Independent Pharmacies Association (LIPA) took Express Scripts to court over state law requiring payment of a 10-cent provider fee that funds Louisiana Medicaid. Express Scripts claimed Medicare preempted the fee requirement and moved to dismiss the case; U.S. District Court Judge James Cain saw no reason to dismiss and ruled to hear the case.

Fickle March swept in with the end of IndyHealth, an independent pharmacy and pharmacy-organization owned Medicare D health plan with a strong concept but an unfortunately-timed roll out (thank you, global pandemic). We all cheered when Wisconsin passed their PBM reform bill, SB 3, after a year-long battle, and Michigan took a strong stand against PBMs with their proposed legislation HB 4348 (affectionately known as “the kitchen sink bill”).

Following a controversial 60 Minutes segment in which it was alleged well-to-do friends of Governor DeSantis may have received early access to the COVID vaccine over poorer communities, PUTT Vice President Dawn Butterfield helped organize a vaccine clinic in Belle Glade, Florida, vaccinating more than 100 residents. PUTT organized media attention on the clinic, highlighting again the need to protect independent pharmacies that serve rural and economically challenged communities.

By April the public had full access to COVID vaccines, and pharmacies gave it their best shot(s) to help end the pandemic, though the emergence of new variants and mixed public receptiveness to the vaccines would ultimately delay long-term health and economic relief. PUTT founder Dave Marley shared his “Manifesto to Dismantle Traditional PBMs” on the PUTTcast and PUTT hosted a webinar update on the “PUNCH” lawsuit (which is still taking pharmacies as client defendants. Learn more here)

In May we took up arms against UnitedHealth Group’s intent to acquire Change Healthcare, a health IT company pharmacies know as “the switch” — the entity responsible for routing the claim to the correct insurance company, then routing the response back to the pharmacy (source: pharmcompliance.com). PUTT spoke out against the proposed acquisition, including sending a letter to the U.S. Department of Justice in opposition. A small but promising victory in Arizona meant no pharmacy will have to pay PBM transaction fees on commercial or ERISA plans effective October 1st, and Maryland quietly paved the way for removal of ERISA language from state law with their passage of HB 601.

With many state legislative sessions coming to an end, June and July are when PUTT switches to “free-market solution” mode. With an eye toward supporting the “Relocalizing Care” movement, PUTT participated in the Mitigate Partners conference in Florida, including a brief presentation on incorporating small business pharmacies in the “Main Street” healthcare solution. PUTT’s “Pharmacy and Pharmacy Patient Protection Act” — proposed model legislation banning PBM practices including patient steering — saw intense debate at the American Legislative Exchange Council (ALEC) annual meeting in Salt Lake City. PUTT Executive Director Monique Whitney and American Pharmacies general counsel Miguel Rodriguez presented the proposed legislation, winning support from ALEC’s HHS committee public sector members but mixed reaction from private sector members, many of whom represented insurance companies. The bill was ultimately held back from a vote to allow for further stakeholder discussion and negotiation.

Attorney Mark Cuker’s (PUNCH lawsuit) MAC pricing win in July, along with the good news that LIPA’s lawsuit would be heard in U.S. District Court, helped make the transition from July to August much happier and more productive than the dog days of summer tend to be. In August PUTT teamed with LIPA general counsel J.R. Whaley to catalog PBM-related lawsuits while the National Federation of Independent Business (NFIB) took a public stand for the rights of independent pharmacies to be protected from PBM abuse.

In September PUTT hosted its Annual Summit in Orlando, Florida with spotlight presentations by Michael Wright and Miguel Rodriguez of the Texas Pharmacy Business Council on the passage of their landmark PBM legislation bills HB 1763, which prohibits retroactive fees, and HB 1919, their anti-patient steering legislation. Greg Reybold of American Pharmacy Cooperative Inc. discussed the “now what” of the U.S. Supreme Court’s groundbreaking Rutledge v. PCMA decision that cleared the way for states to regulate certain PBM business practices. Trevor Daer, principal at Granite Peak Analytics, discussed a case study on fair reimbursements, and Carl Schuessler of Mitigate Partners gave an insider’s view on the benefits of implementing relocalizing care programs into pharmacy business. Legislative panelists Sen. Nancy Barto (R-AZ), Sen. Fred Mills (R-LA), Sen. James Skoufis (D-NY), Rep. Jackie Toledo (R-FL), and Del. Nicholaus Kipke (R-MD) rounded out the event with encouraging insights into PBM reform in their states.

With the onset of October PUTT joined the grassroots campaign to include the Grassley-Wyden Medicaid managed care reform language in the Biden Administration’s reconciliation (“Build Back Better”) bill, then in November joined the rest of the country in applauding the outcome of the 8th Circuit Court of Appeals decision in PCMA v. Webhi.

November continued to be a powerful month for the conversation to end PBM abuse, with sparks flying at the “Comer Forum” on drug pricing, in which PUTT friends and people we generally fangirl/fanboy over testified before a panel of Republican Congressmen and Congresswomen on the factors escalating drug prices. Our favorite moment: when Rep. Diana Harshbarger (R-TN) said she’d waited 35 years to have the hearing. “I understand this problem,” she said. “You can’t solve a problem unless you understand it, and I understand this problem.” (emphasis added by us, but she was seriously badass)

And on the topic of badass, as we come to the end of this year we’re bursting with pride to see PUTT Vice President, Dawn Butterfield, ranked #14 in the list of The 50 Most Influential Leaders In Pharmacy. Our podcast, the PUTTcast, had more trailblazing guests this year than we can count, and with the unwavering assistance of the Pharmacy Podcast Network, we have even more great shows in the works for the upcoming year. We’re looking ahead to 2022 with optimism and enthusiasm, but also with a fierce determination to see more wins than losses, more forward movement, and fewer setbacks. Together we can do this.

We thank you for your enduring support of PUTT. We couldn’t do what we do without you, and we appreciate all you do for your patients, your communities, and your industry.

We wish you the warmest and brightest of holidays,
The PUTT Board