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 michael@zestoforange.com.

By Michael Kaufman

Home-town pharmacists throughout New York State thought they’d won a significant victory earlier this year with the passage of a bill in both houses of the state legislature that prohibits health insurers from requiring the use of a mail-order pharmacy as a condition of their pharmaceutical benefit coverage. Implementation of the bill would allow people to fill their prescriptions at pharmacies of their own choosing, without penalty of having to pay substantially more money for their medicine.

That was good news for local pharmacies still struggling to survive competition from chains such as CVS and Rite-Aid, as well as Walmart, Costco and some supermarkets. In recent years they have faced an even bigger and more insidious menace. Large employers are pressuring and in some cases forcing workers to fill their prescriptions by mail order. This has hurt home-town pharmacies such as Akin’s in Warwick, where Robert Newhard and his sister Jean, have been dispensing medicine and expert advice to customers as their father did before them. 

“After years of legislative battles to pass this legislation….it passed with only two negative votes,” Craig Burridge, executive director of the Pharmacists Society of the State of New York (PSSNY), happily reported in the August 23 issue of Pharmacy Forum. “This landmark legislation ‘prohibits insurers from requiring the insured purchase prescribed drugs from a mail order pharmacy or pay a co-payment fee differential when such purchases are not made from a mail order pharmacy.’ This legislation takes effect 30 days after the Governor signs it into law.” And therein lies the rub. Governor Cuomo has yet to affix his signature.

Why hasn’t the governor signed a bill that benefits consumers and local small businesses, and which passed with overwhelming popular and bipartisan legislative support? The answer isn’t exactly hard to find. Opposed to the legislation are big pharmaceutical companies, managed care companies and big business in general.  The Business Council of New York State, which issued a statement in May condemning the bill as a “state-imposed coverage mandate [that] will increase overall costs to the health care system, limiting one very real opportunity and option to bend the cost curve in health care without any decrease in access or quality to care….

“Pharmacy networks and mail order pharmacies are tools used by employers and insurance carriers to provide pharmaceutical coverage with ensuring access to the drugs in a cost effective manner,” says the Business Council. “Typically mail order pharmacies are an option to employees, not a mandate, and the option usually is accompanied by passing along the savings to the insured in terms of lower out-of-pocket co-pays. If an insured prefers to use a non-mail order pharmacy, it is the informed choice of that consumer to fill the prescription knowing that the co-pay will be higher. Consumer choice exists within the current system; employers and carriers are doing what they can to identify options to consumers to preserve the benefits while offering lower cost options.”

The New York Health Plan Association, representing 25 managed health care plans in the state, complained: “This proposal enriches community pharmacists at the expense of patients and will result in increased pharmaceutical costs.” They say their “relationships” with mail-order pharmacies enable them “to provide coverage for many rare drugs as well as high-cost drugs at a reduced cost to the consumer.” Included among the approaches to increase mail-order pharmacy utilization are lower co-payments for 90-day prescriptions. And, they add, “Mail-order companies offer special tracking and reporting systems that help plans and patients monitor and manage prescriptions. They also provide 24/7 phone access and support for patients.”

Robert Newhard says he can’t blame financially strapped customers for taking advantage of the lower cost 90-day prescriptions—something that he and other local pharmacies are now prohibited from providing. But he bristles at the suggestion that the mail-order companies provide comparable service. Numerous complaints lodged by consumers about Medco, the largest mail-order pharmacy, support his view.  For an up-to-date sampling, see http://www.consumeraffairs.com/rx/medco.html and/or http://www.consumeraffairs.com/rx/medco_delays.html.

Medco, incidentally, is a spinoff of pharmaceutical giant Merck.  In 2004 the company agreed to pay $24.9 million to settle state and federal complaints that accused Medco of violating consumer protection and mail fraud laws by switching patients to drugs that were said to add to costs for patients and their health plans. According to The New York Times, the Justice Department “accused Medco of receiving $430 million from Merck, its former parent, to switch patients to more expensive drugs like Merck’s Zocor.” It seems that some people have indeed been “enriching themselves at the expense of patients,” but it isn’t community pharmacists like the Newhards. According to the Times, Medco also “agreed to start telling patients, doctors and employers about billions of dollars in annual rebates that it has received from drug manufacturers for promoting their products.”

Newhard points to the front door of his store, on which is posted his home phone number so customers can reach him directly in case of an emergency when the pharmacy is closed. “All we’re asking for is an equal playing field,” he says.

There ought to be a law….and there is one. It is just waiting for the governor’s signature in Albany. The Newhards and other community pharmacists are asking customers to call the governor’s office at 518-474-1041 or go online at www.governor.ny.gov and urge that he sign the bill into law. Just click on “contact,” enter “A5502-B” as the subject and “Insurance” as the topic.

Michael can be reached at michael@zestoforange.com.