Express Scripts Too Big to Obey Law?

By Michael Kaufman

A couple of months ago I got a letter from Express Scripts, the company that manages the prescription benefit for our family’s health plan. The purpose of the letter was to inform me that if I continued to use my local pharmacy in Warwick to fill my prescriptions instead of the mail-order service offered by Express Scripts, the price of my medications would go up for the rest of the year. As if to let me know that this was no mere form letter (and that Big Brother really is watching me), it included names of the medications prescribed by my doctor.

I filed the letter where I file all the letters I receive from Express Scripts—the garbage pail—and gave it little thought until recently, when I went to Akin’s Pharmacy to fill my prescriptions. My doctor was on vacation but before he left he gave me a second set of prescriptions so I would not run out of medicine while he was away. Unfortunately, he had written the wrong date on them and the pharmacy was unable to fill the order until it was corrected. I was out of medicine….but with the assistance of pharmacist Robert Newhard the situation was promptly resolved. But I wondered what would have happened if I’d been using Express Scripts? And what if the lack of medicine were to have a serious impact on my health?

I told Newhard about the letter. Aside from my annoyance at the invasion of privacy I wondered how this letter from St. Louis-based Express Scripts squares with New York State law. Almost three years have passed since the state legislature passed a bill that prohibits insurers from requiring patients to get prescriptions through the mail. Insurers get around this by offering mail order pharmacy as an “option” and then sending ominous letters to people who prefer to use a local pharmacy of their own choosing. Also passed was an amendment requiring local pharmacists to accept the same reimbursement rate as mail-order pharmacies. But does Express Scripts have the right to dictate the amount of my co-pay at my local pharmacy?

“They don’t pay any attention to the law,” said Newhard. “They don’t care about the patients. All they care about is their profits.” And they have a lot of profits to care about: Express Scripts is the largest pharmacy benefit management (PBM) organization in the United States, with 2013 revenues of $104.62 billion. Founded in 1986 as a result of a joint venture between a retail chain of more than 79 pharmacies and a managed healthcare care company, Express Scripts was purchased by New York Life Insurance Company in 1989. Since then it has acquired a host of other PBMs, including its purchase in 2012 of Medco Health Solutions for $29.1 billion.

Both Medco, a spinoff of pharmaceutical giant Merck, and Express Scripts have brushed aside accusations of fraud and legal challenges. New York State Attorney General Eliot Spitzer filed a lawsuit against Express Scripts in 2004 alleging that the company had kept tens of millions of dollars in drug rebates owed to the state. The suit charged that Express Scripts had overstated the cost benefits of switching to certain preferred medications. The company settled the suit in 2008, agreeing to pay $9.3 million to Pennsylvania and 28 other states to resolve claims of deceptive business practices. It also agreed to change its business practices and pay up to $200,000 in reimbursement to patients.

But as of 2011, when the New York State law was passed, little had changed, at least according to one Warwick resident, who wrote at the time, “I HATE Express Scripts but have to use them. ALWAYS, ALWAYS late, and when I call, which is every time, I get….nothing even remotely helpful.” It seems little has changed since then either.

Michael can be reached at


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One Response to “Express Scripts Too Big to Obey Law?”

  1. kristen bolomey Says:

    How would I find out if florida has similar laws or if their is a class action suit for customers pending?

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