 It takes courage to call out cheaters, but independent pharmacies are showing courage in spades - and with inspiring results - as PBMs continue to shamelessly game the system to their own profiteering advantage. Below are just a few of the exciting victories we've been following and/or participating in since January 1:
Following the Florida Medicaid Analysis' jaw-dropping report of overt patient steering, specialty pharmacy abuse and PBM non-compliance with the state's Single Preferred Drug List, community pharmacists launched a series of local press conferences calling for immediate reform. Florida legislators have been gridlocked on the PBM reform issue since Rep. Jackie Toledo's HB 961, one of the state's most aggressive PBM legislation bills in years, was tabled in favor of a more neutral committee bill. Refusing to back down, independent pharmacies have scheduled press conferences at their stores over the next two weeks. After a year-long effort to launch meaningful reforms in Wisconsin, Assemblyman Michael Schraa's AB114 PBM reform bill finally got its hearing this month - and saw the bill greatly reduced in strength just hours before the hearing. Undaunted, Wisconsin local pharmacists attended the hearing and testified with their patients, along with patient group representatives, pharmacy audit representatives, a former CVS employee and members of the public in a 6-hour hearing that stretched well into the evening. Assemb. Schraa's wife and daughter, whose treatment at the hands of PBMs prompted the bill, provided emotional testimony that left committee members asking how a bill that had garnered some 99 sponsors couldn't be passed as originally introduced. The following week, SB 100, the companion bill to AB114, had more than 4 hours of testimony from pharmacists, patients and advocates. Track AB 114 progress here. In classic "zero to hero" fashion, Illinois went from virtually no protective legislation for patients and pharmacies two years ago to a series of new bills introduced this session by Senator Andy Manar. Proposed legislation would eliminate certain underhanded practices including below-cost reimbursements and forced mail order. Sen. Manar, a tireless champion for community pharmacy, has been working closely with independent pharmacies to bring change to a state where (for a little while at least) PBM reform seemed all but impossible. With last year's victorious enactment of Senator Fred Mill's comprehensive SB 41 anti-PBM abuse legislation, Louisiana's independent pharmacies are now preparing for the possible topic of PSAO regulation - one the opposition's primary talking points - as the state's legislative session kicks off next month. Louisiana independent pharmacies are also keenly interested in helping their fellow independent pharmacies in other states draft and pass meaningful PBM reform legislation, with the end goal of bringing state reform momentum to the federal government. California pharmacies are fighting back after the state Medicaid program decided to recoup millions lost to PBM spread pricing from pharmacies - the very people who reaped no benefit from spread pricing whatsoever. See our article (below) for how California Pharmacists Association is working to thwart Medi-Cal's misguided efforts. To date more than 100 PBM legislation bills have been introduced, with more on the way. Look for updates on these and other inspiring victories in upcoming issues of this newsletter, and please contact us at info@truthrx.org for more information on how these and other states are winning against PBM abuse.
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 Here it is, less than two weeks into the new year (new decade!) and there are already strong, positive signs in the fight for PBM reform. PUTT is making a bold prediction: 2020 is THE year!
Since January 1:
This is just the beginning. PUTT will continue to update as momentum against PBM fraud, waste and abuse continues. Look for #2020isTHEyear and post your own updates with the same hashtag. Here's to an exciting year ahead!  “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness..”. Against a backdrop as politically charged as Dickens’ A Tale of Two Cities, Congress’ latest attempt to make headway in the drug pricing debacle has resulted in two bills aimed squarely at drug manufacturers while appearing to largely overlook the now well-documented role pharmacy benefit managers (PBMs) play in escalating medication costs.
HR 3, the “Lower Drug Costs Now Act” was introduced by Speaker Nancy Pelosi with the intention of reining in rising drug prices, holding manufacturers to a price cap based on the average price of a selection of brand name medications sold to Australia, Canada, France, Germany, Japan and the United Kingdom. The bill would theoretically lower drug prices for Medicare enrollees by allowing the Centers for Medicaid and Medicare (CMS) options for negotiating pricing in line with that of other countries. HR19, the “Lower Costs More Cures Act” introduced by Rep. Greg Walden (R-OR), also attempts to hold drug prices in check but without the government-imposed price controls. HR 19 appears to at least acknowledge certain PBM practices by including provisions calling for drug pricing transparency, a study of “pharmaceutical supply chain intermediaries and merger” and the end of “abusive spread pricing”. But like the “Pelosi Drug Bill”, it fails to address one of the central most drivers of the high prices consumers pay at the pharmacy counter: true PBM oversight and regulation. As of last week, HR 3 has passed the House and will head next to the Senate, where it is expected to be defeated. Meanwhile the Senate Finance Committee’s “Prescription Drug Pricing Reduction Act” (the “Grassley-Wyden” bill), has been fortified to include prohibiting the PBM practice of collecting post-transaction “retroactive fees” from pharmacies, but does little to address the practice of extracting “pay to play” rebates from manufacturers in exchange for product placement on plan formularies. In its current format, the Grassley-Wyden bill is not expected to make it to the Senate floor for a vote in the near future. Our take on the situation: The shady, “proprietary” and “trade secret” factors that contribute to skyrocketing medication prices are a non-partisan problem that touches every American whether enrolled in Medicare, Medicaid or a private commercial health plan. By failing to directly address the well-documented profiteering tactics of a handful of Fortune 25 corporate bad actors, Congress is failing us: the small business pharmacy providers, the patients and the taxpayers. “..It was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair … in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only,” To be clear, we are not ungrateful. But while we commend our federal legislators for the fair start, the fact is unless they write bills and cast votes with their consciences instead of their PAC pocketbooks, nothing will change. We need true PBM reform, an overhaul at the state and federal level that either greatly regulates or removes PBM middlemen from the healthcare equation. Anything less will only prolong the problem.  Exceptionally smart and talented people make the health benefit decisions for their Fortune 500 corporations, but it continues to surprise us how very few ever think to push back against the multitudes of underhanded PBM practices regularly reported in the business media. Unfortunately, despite evidence to the contrary, it seems the decision-makers in these super successful companies are buying into the rhetoric, absolutely confident they got the “best deal” and have the “best discounts”.
These are real-life comments from people who refuse to believe PBMs and the brokers who control the bidding would ever manipulate the RFP process and from corporate decision-makers who are in over their heads or can’t keep up with all of the antics of the ‘PBMafia’. McKesson Corporation is a Fortune 10 healthcare company and even they were fooled. Purely by accident, it was uncovered that McKesson’s self-insured employee medical plan was utilizing prescription benefits administered by CVS/Caremark that disadvantaged McKesson’s own customers. McKesson owns a PSAO (an entity that signs the required PBM contracts for independent pharmacies), they have independent pharmacies as customers, and they completely missed the unethical tactic that was allowing CVS/Caremark to pay themselves and all other large chains substantially more than their small chain and independent pharmacy customers. Around 6 weeks after the discrepancy was uncovered, miraculously, all McKesson customers began to be paid on par with their large chain counterparts. McKesson Corporation has never officially commented on the issue, but a fundamental change clearly happened. It’s a prime example of how the PBM machine uses every avenue possible to cheat the corporate customers they’re supposed protect, even ones in the healthcare industry. You may be wondering how can this happen. How can employers, even those in healthcare, be so financially exploited? How do PBMs have so much power that they can readily extract so much money from the system? Take a look at these contracts from a PBM obtained from local government entities. Contracts like these are just one of the many power plays PBMs employ. One look and you can see they’re one-sided. What do YOU think? Share your insights & comments with us! To view the redacted contracts discussed in this article, click Here  Like an evil chess Grandmaster, PBMs are incredibly adept game players, exercising diabolical patience and foresight as they craft the long-term cons they sell as "saving money" on behalf of consumers and plan payers. Pharmacists are well aware of the complicated tactics that make up the PBM playbook and result in unnecessary millions charged to end payers every year. Knowing patients and end payers are being ripped off is one thing. Calling attention to the rip off is an entirely different - and extremely risky - matter. But a PUTT member pharmacist is taking a new approach: documenting the perpetuated spread pricing that occurs between the deductible and benefit phases in a patient's plan, and reminding patients they have the right to request a "receivables statement". What is "Perpetuated Spread Pricing"? Imagine this scenario: you're a consumer with normal prescription drug coverage through your employer. It's late January, time for your monthly medication refill. You go to your local drugstore, the pharmacist inputs the script and updates your insurance as per usual. Because you're in the deductible phase, you're charged the full copay and the PBM bills your plan at the contracted rate. You and your health plan repeat this process monthly until your deductible is met and your copay is $0. Now imagine your coworker, a member of your same insurance plan, who takes the same medication and dosage but has met their deductible a little earlier than you. They have a $0 copay and the health plan pays the same contracted rate as before, right? Wrong. When the pharmacist inputs your co-worker's information, it returns pricing based on what should be "contract pricing" but after the deductible is met, the system automatically prices that same medication at "MAC pricing".  This behind-the-scenes switch allows PBMs to continue to charge the health plan the higher contracted rate, but reimburse the pharmacy substantially less, resulting in greater spread - and therefore increased profits - to the PBM.
When the patient is in the deductible phase, they very often pay an average of 235% more for medication that, when the deductible is met, the PBM is now indexing against MAC, and now paying itself more by charging the health plan the contracted rate and reimbursing the pharmacy for the lower-priced MAC rate. Perpetuated spread pricing is a direct violation of the contract between the PBM and the consumer's insurance plan, especially since the medication price charged to the consumer between the deductible and benefit phases is substantially different. Unless two patients with the exact same prescription under the exact same group insurance plan come into the same pharmacy to fill their identical prescriptions at the same time, no one might ever catch on to the discrepancy. It's convoluted consumer defrauding at its finest. Pharmacists legally aren't allowed to disclose this level of information to consumers without risking multiple lawsuits from the PBMs and insurers. The only way for consumers to actually ensure they're not being overcharged is under new state & federal anti-gag clause legislation. Most states have recently passed anti-gag clause legislation. This same legislation allows patients to request a receivables statement when they fill a prescription. If a consumer were to do this each time they filled their prescriptions, they could see actual prescription charges and could compare prices against what their plan says they should be charged. The PUTT member pharmacist discovered this new level of consumer fraud because it was his plan - and one of his co-workers on the same medication - who were charged the different amounts for the same prescription. He filed a formal complaint with his state's department of insurance and was told he "wasn't considered a consumer" and therefore the complaint was thrown out. PUTT encourages members to review your state's anti-gag clause legislation to check for the receivables statement language, and then inform patients of their right to know how much they and their health plan are being charged for their prescriptions. 
In the world of healthcare, pharmacy benefit managers are no better than the playground bullies that try to take your lunch money. Forced mail order is a perfect example. Recently PUTT has begun receiving copies of "choice requirement" emails and mailings from our members that read like a low budget suspense novel. Patient walks into their pharmacy to fill their long-term prescription, days later they receive notice from their insurance carrier's PBM that they will be required to pay the full price of the medication going forward if they don't transfer the prescription to mail order service. (cue the scary music) Privacy rights notwithstanding, steering tactics like this one create a horrible situation where entire families and communities pay the price. It's a prime example of how PBMs care only about their bottom line, not the patients, and certainly not that patient's community. Never mind that this patient may require special assistance from their local pharmacist who knows their medical history & watches for drug interactions between their medications. Never mind that mail order medication is usually shipped to the patient from a distance and can easily be rendered ineffective in treating that patient's condition due to a lack of temperature control during transit, which could cause them to become far sicker than before. Never mind that the required 90 day supply of medication that mail order plans force to be ordered could potentially result in extra medications ending up in the wrong hands and on the wrong side of the law. Never mind that the patient's local pharmacy is the go to hub for healthcare in that particular community and that by forcing patients to use mail order instead of filling their prescriptions locally, that pharmacy could ultimately be forced to close its doors. The list of detrimental outcomes is long and ominous. Job losses, destruction of local business, patient safety issues, illegal drug trafficking, and spoiled medication possibilities swirl like a rip tide effect around these PBM forced "choice requirements". Georgia got it right with their recent anti-steering legislation this past session, but how many more community pharmacies will fall to these over-sized healthcare bullies in other states before legislation is passed to stop the fleecing? How many more patients will become sicker - or worse - from improperly stored medication during transit? How many more prescription drugs will hit the streets due to forced ordering excess? It's time to stop the madness and bring these healthcare bullies to justice. Without PBM regulation, America's prescription drug system is doomed to continue into a downward spiral of monopoly, oligarchy, disease, and patient despair. We all deserve better. Last month independent pharmacy owners, physicians, attorneys, activists and patient advocates from across the country gathered with state legislators at the second annual PUTT Summit for a day and a half of candid discussion on the topic of reining in PBM abuse.
Hosted this year in Austin, Texas, at the historic Driskill Hotel, participants organized in think-tank fashion to honestly assess and collaborate on forward-thinking ideas and strategies to implement in their home states. “This year's presenters really brought the information home in an insightful and engaging manner,” said PUTT President Scott Newman. “Dr. Stephen Schondelmeyer, Dr. Joel Strom, and keynote Greg Reybold challenged us to think about the issues in new, broader ways that I’m certain will empower our collective efforts to stop PBM abuse in our home states.” This year’s Summit included a review of Georgia’s new anti-patient steering law and a presentation by Dr. Stephen Schondelmeyer on “Key Factors Affecting Pharmacy’s Future.” The highlight of the Summit, the State Legislators Panel, featured Arkansas Rep. Jason Rapert; New York Sen. James Skoufis; Georgia Rep. David Knight; Louisiana Rep. Bernard LeBas; and Arkansas Sen. Kim Hammer. Following the Legislative Panel, participants engaged in workshops focused on bills from New York, Louisiana, Tennessee, Oregon, Georgia and other states that had passed progressive anti-PBM abuse laws, analyzing bill language for use in their own states’ future legislation. Legislators, including former Florida Lt. Governor Jeff Kottkamp, participated in the process, lending insight on the legislative process. Following Friday’s work session attendees were treated to a cocktail reception hosted by American Pharmacies at the exclusive Austin Club, once the city’s gala opera house, and then gathered in groups for dinner and a fun night in the heart of Austin’s downtown music district. From the workshops to the after hours cocktails, this year's Summit was a successful combination of information and expertise sharing, networking, and innovative planning. Watch out, PBMs! We're locked, loaded, and ready for battle! As states begin to address the heretofore unchecked practices of pharmacy benefit manager (PBMs) middlemen amidst a rash of publicity and legislation, Georgia has quietly introduced and passed legislation that could change the game for Georgia patients and serve as a model for other states looking to protect patient choice and access to care. This legislation - HB 233 by Rep. David Knight - awaits Governor Brian Kemp’s signature before passing into law May 12th.
While most state legislation, including HB 323 in Georgia, looks to rein in problematic PBM practices, Georgia’s HB 233 takes a new tact – regulating pharmacies that are owned/affiliated with PBMs and insurers through the elimination of patient steering practices. HB 233 specifically prohibits pharmacies owned by PBMs and insurance affiliates from receiving self-dealing referrals and from engaging in data mining for commercial (non-patient care) purposes. The bill also requires pharmacies to disclose affiliates to the Board of Pharmacy and contemplates Georgia Board of Pharmacy oversight. “Though often overshadowed by issues such as DIR fees and spread pricing, PBM-owned pharmacies have been able to engage in patient steering on the grandest of scales, to the point it has become a core business strategy,” says Georgia state representative David Knight. CVS says as much in a statement from CEO Larry Merlo in their 2017 Annual Report: “Over time we have developed new plan designs that save our clients money while simultaneously moving share into our channels. For example, the new plan members we enrolled over the past three selling seasons will contribute an additional 40 million prescriptions to the enterprise in 2018.” Frustratingly, PBMs often take the position that state law requiring regulation is preempted by federal law, thus limiting the scope and impact of many previously-passed state laws Yet pharmacies are subject to significant state regulation. What makes HB 233 unique -- and apparently gives PBMs pause -- is that it targets the very point at which PBMs ARE subject to state regulation - their pharmacies. “It’s a simple yet brilliant strategy that may change the game and provide patients the broadest possible protections. For patients who have been forced into mail order or other PBM-owned pharmacies, there are few issues more important in healthcare than patient steering,” says Scott Newman, PUTT president. “Steering, whether into mail order or a PBM-owned brick-and-mortars impacts the most vulnerable patients. PUTT applauds the State of Georgia for recognizing the need to stop the practice all together.” HB 233 had more than 90 co-sponsors and enjoyed near unanimous support. However, despite the grassroots support, the PBM lobby is currently exerting tremendous pressure in the hopes of getting a veto by May 12, which is the state deadline for Governor Kemp to veto 2019 legislation. In the meantime, the pharmacists and their patients wait, hopeful that patient mandates and steering will soon be a thing of the past.  At a time when prescription drug prices are so high that several states are considering legislation to make foreign prescription drug importation legal, PUTT again warns legislators and consumers that this proposed “solution” will NOT fix the problem of high drug prices.
As pharmacists, our first concern is for patient safety. But we also know (a little too well) how drug prices force some patients into rationing medicine or not filling a prescription, and that legislators are responding to constituents’ concerns for drug cost. Still, foreign drug importation, while it may provide some superficial cost savings, will not provide the kind of choice or value patients need. Consider the proposed plan in Florida. PUTT requested public records for Flagler County’s much-touted CanaRx program, and learned a few things: Lesson #1: Transparency works. Under Florida’s “sunshine laws” we can see the 2018 quarterly cost reports for prescriptions available under CanaRx. On the report, the green highlighted items are prescriptions ALREADY available as generic in the U.S. In the midst of one of the most actively healthcare-focused legislative seasons in years, several states have begun to address the issue of PBM abuse by introducing legislation that attempts to rein in the unchecked power of the middlemen.
In Maryland, Brian Hose and Steve Wienner - two seriously committed pharmacists - led the fight along with the Maryland Pharmacists Association, Epic Pharmacies, and the Independent Pharmacies of Maryland for PBM reform that culminated in the recent passage of three bills that target unfair PBM practices and now require pricing transparency, and the elimination of DIR fees. Because every big legislative win has its roots in small past victories, PUTT asked Brian and Steve to share their story and advice for other pharmacists working at the state level to enact change. "This year was out of the ordinary," said Brian. "A lot of it was due to small changes that have been taking place in the years prior, when the PBMs would give us a small concession and then find a way to skirt the law, which would then set us back two steps. The legislators finally started to see what was going on and made some measurable changes this year." “It's been years and years in front of the legislature,” said Steve. “I think a lot of people don’t realize that you’re not going to be involved for one year and get everything you want.” Both Steve and Brian have spent more than five years actively testifying in front of the Maryland state legislature. They have participated in legislative work groups tasked with finding common ground and/or compromises between independent pharmacies and the PBMs; educated legislators on the intricacies and importance of NADAC; and driven home the value of independent audit firms as non-partisan, trustworthy resources for pending legislation. Since PBM contracts prohibit pharmacies from informing the end payer about pricing and fees, they and their fellow pharmacists worked toward legislation that would allow a work-around. Said Steve, “If I pick up a phone and call them, I can’t say ‘your PBM is screwing me,’ but when the Maryland Insurance Administration drops 50 to 100 appeals on them and says ‘this is a problem and these are the drugs,’ now you have a 3rd party saying ‘you need to investigate that’.” Insight, “outside the box” thinking and absolute tenacity have fueled their motivation to bring about real change in Maryland, which, like other states, has seen the closure of scores of pharmacies as PBMs cut reimbursements, increase DIR fees and use audit penalties as a means to improve their own bottom line. Both Steve and Brian advise pharmacists to stay actively involved throughout the entire legislative process to achieve their ultimate goal. “We saw a big shift this year in the way that government agencies were behind us,” says Brian. “Before, they would try to be an impartial mediator through the process, this year they testified on behalf of these bills, they drafted language that strengthened the bills -- they were very involved.” An added benefit to pharmacists remaining actively involved: Maryland legislators are beginning to understand the added value independent pharmacies provide patients. This is especially important in a state where, on average, there’s a chain drugstore within 10 miles of every citizen. The proof is in the legislation passed. While HB 754 was not passed in its original form, (a sore point for many) these two feel that the combination of all 3 bills lay a solid groundwork for building upon next session. Their advice for pharmacists entrenched in legislative battles in other states? Make sure you have someone in every step of the process. From the hearing to the work groups to the sub-hearing. It’s not easy, but someone’s got to be involved. “We are advocates for our profession. We’ve been doing it for a long time, and we’re glad to see the success,” said Brian. “Everyone has to give back to their profession in some way,” says Steve. “Some do it in academia, teaching, or study; some do trials in their store; the way we personally give back to our profession is through legislative activism.” Some superheroes wear capes. This dynamic duo proudly wears lab coats! |
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