Anthem and Express Scripts legal battle exemplifies our dysfunctional financing system

Anthem, Express Scripts Face Legal Challenge Over Prescription Drug Prices

By Julie Appleby
Kaiser Health News, July 1, 2016

Anthem and its pharmacy manager Express Scripts overcharged patients with job-based insurance for prescription drugs, alleges a lawsuit that seeks class action status for what could be tens of thousands of Americans.

It’s the latest wrinkle in a battle that has already pitted the major national insurer and its pharmacy benefit manager (PBM) against each other in dueling legal actions — and further illustrates the complicated set of factors that determine what consumers pay for prescription medications.

The case alleges that insured workers paid too much because Express Scripts charged “above competitive pricing levels” and Anthem, in effect, allowed those higher prices as part of a 10-year contract deal with the pharmacy management firm.

Recently, some independent pharmacists have complained that some PBMs are charging insured consumers more than the cash price for some generic drugs.

And for years, questions have been raised about whether the industry fully discloses how much it is actually saving insurer and employer clients — and what portion of those savings are actually passed along to consumers.

“It’s such a complicated web of intermediaries that stand between consumers and the prices they pay,” said Erin Fuse Brown, an assistant professor of law at Georgia State University College of Law. “As a result, no one knows if they’re getting ripped off.”

Anthem’s lawsuit aims to end its contract with the PBM and seeks $15 billion in damages for what it alleges was the PBM’s failure to renegotiate lower prices for prescriptions. Anthem used to run its own PBM, but sold it to Express Scripts in 2009 as part of the contract deal, court documents show.

In its counterclaims, Express Scripts said the insurer rejected several proposals to renegotiate prices. In addition, Express Scripts’ legal document says Anthem was offered a choice of “less money up front but lower pricing” or a bigger upfront payment “with higher pricing for Express Scripts’ services.” It chose the higher prices over the course of the contract in exchange $4.6 billion more in upfront fees, according to the PBM’s counterclaim. That money, Express Scripts’ documents allege, was then used by Anthem to buy back its own stock, rather than passing it along to health plan members. The stock buyback “applied upward pressure to Anthem’s stock price, thereby enriching shareholders and management,” the filing alleges.


Decoding Big Pharma’s Secret Drug Pricing Practices

By Robert Langreth, Michael Keller and Christopher Cannon
Bloomberg, June 29, 2016

The pharmaceutical industry has long said that list prices aren’t a reliable indicator of what Americans pay for prescription drugs because big customers, including health insurers and pharmacy benefit managers, negotiate discounts. But a Bloomberg analysis of 39 medicines with global sales of more than $1 billion a year showed that 30 of them logged price increases of more than double the rate of inflation from 2009 to 2015, even after estimated discounts were factored in. Only six drugs had price increases in line with or below inflation.

(A large number of specific examples are provided in the article.)



By Don McCanne, M.D.

Pharmaceutical companies, insurers and pharmacy benefit managers each conspire, with each other and independently, to get the maximum financial gain that prescription drug market dynamics will allow. Health care funds pour into these industries, and patients end up the losers.

What would it be like if pharmaceutical firms all converted to non-profit status and then negotiated earnestly with the public stewards of a single payer national health program? Health care funds would no longer be drained off to passive investors and to exorbitant executive salaries and benefits, and patients would end up the winners.