Archive for the ‘Federal False Claims Act’ Category

Public Disclosure Bar Does Not Preclude a Qui Tam Suit against Medtronic

Thursday, June 14th, 2018

In United States ex rel. Forney v. Medtronic, Inc., Judge Edward G. Smith of the United States District Court for the Eastern District of Pennsylvania ruled in favor of the Relator by denying medical device manufacturer, Medtronic’s request for summary judgment.  Judge Smith ruled that Relator Forney was not barred by the public disclosure bar because she is an original source that “materially added” to the publically disclosed allegations of fraud against Medtronic.

The Underlying Fraud Allegations

Relator Forney worked at Medtronic for 16 years until she was terminated in 2012.  She alleges that Medtronic routinely provided free services to individuals who made decisions about device purchases for the purposes of inducing these healthcare professionals to purchase Medtronic devices.  Her amended complaint alleges two main categories of inducements: (1) free device checks and device examinations performed on implanted pacemakers and (2) free practice management consulting during which providers were counseled on how to code for maximum reimbursements.  Relator Forney argues that these services are illegal kickbacks.

Medtronic Claims Public Disclosure Bar

In their motion for summary judgment, Medtronic contended that all of the Relator’s allegations were the subject of prior FCA claims and were therefor barred by the public disclosure bar.  Medtronic pointed to five different qui tam cases (Onwezen, Schroeder, Stokes, Doe, and Burns) and argued that they all qualified as valid prior public disclosures that described substantially the same fraud as the Relator’s amended complaint.

The Court’s Findings

After reviewing the five cases, the Court found that only two of them were valid public disclosures.  The Court determined that the other three cases did not qualify because these cases did not satisfy the government-involvement requirement.   According to Judge Smith, when the government declines to intervene in a qui tam case, it cannot be a party for the purposes of the government-involvement requirement.  Next, the Court turned to the issue of whether the two valid prior public disclosures (Onwezen and Schroeder) served as a bar to the relator’s claims.

The court held that while Relator Forney’s allegations were substantially similar to the other cases, she had knowledge that was independent of the disclosures, making her an original source.  The court found that she provided extensive details to the government that materially added to the factual background possessed by the government from the two prior cases.  Accordingly, the Court denied Medtronic’s motion to dismiss.

New York Doctor Sentenced to Four Years in $100 Million Lab Kickback Scheme

Friday, June 1st, 2018

The beat goes on…

According to a May 31, 2018 filing in New Jersey federal court, Dr. Thomas Savino of Staten Island was sentenced to four years imprisonment and three years’ supervised release, and was ordered to pay a $100,000 fine and forfeit $27,500 for his part in the Biodiagnostic Laboratory Services fraud. Evidence produced at trial last fall showed that Dr. Savino received at least $25,000 from the lab in exchange for his referrals, which generated approximately $375,000 for the lab. In October 2017, Savino was convicted of multiple offenses for his role in the kickback scheme, including conspiracy to violate the anti-kickback statute and wire fraud. All told, the scheme resulted in $100 million in false claims to government and private health care programs.

With Dr. Savino’s conviction and sentencing, the case has resulted in 53 convictions, including 38 doctors. Earlier this month, four former Biodiagnostic sales employees also received prison sentences ranging from 21 to 41 months, and a fifth ex-employee received three-years’ probation for their part in the kickback scheme.

Back in June of 2016, Biodiagnostic pled guilty and was required to forfeit its assets. In December 2017, the founder of the lab company, a former nurse, testified during the government’s prosecution. He described how he built a $150 million business from scratch using a marketing plan built primarily on bribing doctors to use his lab. The physicians involved were bribed with luxury automobiles, impossible-to-get concert tickets, and trips to the Caribbean and the Super Bowl in private jets, as well as prostitutes and strippers at high-end gentlemen’s clubs. Although 40 physicians were charged, the lab owner testified that he paid off more than 100 physicians to keep referrals flowing to his lab.

The scheme came to light when one of the doctors receiving kickbacks gave an old iphone to a girlfriend. After their breakup, she discovered texts revealing the bribe scheme and provided them to authorities.

Ex-BlueWave Execs and Former HDL CEO Hammered with $111 Million Judgment

Wednesday, May 30th, 2018

What Happened?

On May 23, 2018, the U.S. District Court for the District of South Carolina, Judge Richard M. Gergel, imposed a $111 million judgment against former Health Diagnostics Laboratory (“HDL”) CEO, Latonya Mallory, and former BlueWave Healthcare Consultants (“BlueWave”) owners, Floyd Dent III and Robert Bradford Johnson. Mallory, Dent, and Johnson, who had been found liable by a jury in January for violations of the False Claims Act (“FCA”), argued that the judgment amounts to a violation of the Due Process Clause and the Eight Amendment’s prohibition on excessive fines. The court rejected these arguments.

The Litigation Rundown

An amended qui tam Complaint filed by Relators Scarlett Lutz and Kayla Webster initially named Dent, Johnson, and Mallory as co-conspirators in a nationwide scheme where BlueWave would “market” laboratory tests performed by HDL and another lab, Singulex, Inc., to physicians by offering them sham process and handling fees for each test ordered. The realtors were represented by Marc S. Raspanti, Pamela C. Brecht, and Douglas E. Roberts of Pietragallo Gordon Alfano Bosick & Raspanti; and William J. Tuck, P.A.

The United States intervened in the Lutz-Webster Complaint, and two complaints filed by other relators, and the claims against Dent, Johnson, and Mallory proceeded to trial in Charleston, South Carolina, after HDL and Singulex settled the claims against them. After intervention and at the government’s request, the Court froze numerous assets – including real property and bank accounts – belonging to Dent and Johnson.

On January 31, 2018, the jury found Dent, Johnson, and Mallory responsible for submitting or causing to be submitted 35,074 false claims that were tainted by the sham fees and for which federal health care programs paid $16,601,591. Because the FCA calls for the trebling of damages as well as the imposition of penalties for each claim submitted, and because the government sought civil penalties for some of the false claims, Dent, Johnson, and Mallory’s obligation climbed into nine figures.

Faced with a massive financial obligation, Dent, Johnson, and Mallory contended that the judgment would violate the Excessive Fines Clause of the Eighth Amendment. Following “well-settled” precedent, the district court rejected that argument in a written opinion and order, noting that punitive damages and penalties are not typically viewed as “fines,” as that term is used in the Eighth Amendment. Moreover, even if the Excessive Fines Clause were applicable to civil FCA judgments, “substantial deference” should be afforded to the legislature, which prescribes penalties for each false claim submitted. Here, the United States was circumspect in terms of the penalties it sought, opting to request the minimum $5000 per claim and only then for some of the false claims submitted. Thus, there was nothing grossly disproportionate about the judgment.

Dent, Johnson, and Mallory also raised due process objections under the Fifth Amendment based on the alleged excessiveness of the judgment. But the Court found that the statutorily determined ratio of punitive damages to compensatory damages passed constitutional muster. The Court imposed the $111 million judgment, for which Dent, Johnson, and Mallory will be jointly and severally liable.

The Take Away

This judgment serves as a stark reminder about the severity of consequences facing those defendants who go to trial and are found liable for FCA violations. Johnson, Dent, and Mallory were found responsible for submitting, or causing the submission of, false claims that cost the government $16 million. That obligation ballooned into more than $111 million due to the FCA’s provisions regarding treble damages and fines and penalties.

It Is So Ordered: Improper Attempts to Assert Attorney-Client Privilege Will Not Be Tolerated

Tuesday, May 29th, 2018

On May 21, 2018, Judge Lawrence F. Stengel of the US District Court for the Eastern District of Pennsylvania granted Relator Gohil’s motion to compel calling for the production of hundreds of attorney-client privilege-asserted documents in a False Claims Act dispute.

In the underlying case, United States of America ex rel. Yoash Gohil v. Aventis Pharmaceuticals, Inc.,et al., Gohil, a Senior Oncology Sales Specialist at Aventis (now Sanofi), filed a qui tam action against his former employer, Sanofi-Aventis U.S., Inc. and its subsidiaries. Gohil alleged Sanofi illegally advertised its chemotherapy drug Taxotere for unapproved or off-label uses and paid kickbacks to doctors who prescribed such uses. The former employee alleged that these practices caused health care providers to submit false claims under the False Claims Act. As a result of Aventis’s unlawful marketing practice, Gohil alleged, Taxotere’s revenues increased from $424 million to $1.4 billion from 2000 to 2004.

Sanofi argued Gohil’s claims were barred by the six-year statute of limitations and were precluded by the First Amendment because free speech extends to commercial speech, including untruthful speech regarding Taxotere. Judge Stengel denied the motion finding Sanofi had fair notice of the claims, and there was not enough information to decide the First Amendment issue.

Fast-forwarding to discovery, in Gohil’s motion to compel discovery responses, Gohil argued Sanofi improperly attempted to claim privilege by broadly categorizing communications with third parties such as marketing firms, employees, or emails with attorneys merely copied to assert privilege, as “consultants involved in giving of legal advice.” Judge Stengel rejected Sanofi’s argument and ordered the defendant to hand over the documents.

The Court’s order directs Sanofi to turn over “all documents related to the PACT program,” a program offering aid for treatment payment to qualified individuals. The Court’s order includes documents maintained by third-party vendors, databases, documents related to contract negotiation, documents related to the destruction of any PACT documents, and documents related to PACT reimbursement managers.

Ultimately, attorney-client privilege will only shield from discovery those communications and documents related to obtaining legal advice. The Court found any attempt to conceal pertinent documents by asserting unfounded attorney-client privilege will not be tolerated.

FCA Suit Stealer Gets Guideline Sentence

Monday, March 19th, 2018

What Happened?

Jeffrey Wertkin, a former Akin Gump Strauss Hauer & Feld LLP partner who previously had worked at the Department of Justice (“DOJ”), received 30 months’ imprisonment for offenses related to his theft and attempted sale of a sealed government whistleblower complaint to a cyber-security company being investigated by the DOJ. The sentence was at the low end of Wertkin’s 30-37-month range under the U.S. Sentencing Guidelines and far more than the year-and-a-day sentence that his attorney had requested.

The Rundown

In November 2017, Wertkin pleaded guilty in the U.S. District Court for the Northern District of California to two counts of obstruction of justice, in violation of 18 U.S.C. § 1505; and one count of interstate transportation of stolen goods, in violation of 18 U.S.C. § 2314.  As he transitioned from his role as a civil prosecutor at the DOJ to Akin Gump’s Washington D.C. office, Wertkin stole approximately 40 sealed complaints. In November 2016, he cold-called general counsel at a Silicon Valley company and left a voicemail offering to provide information about a complaint that implicated the company for a fee.  The general counsel called the FBI, and, after a series of monitored phone calls with the general counsel, Wertkin – dressed in a wig and sunglasses – was arrested in a Sunnyvale, California hotel, at which he intended to exchange the complaint for more than $300,000 in cash.

In a lengthy and well-crafted sentencing memorandum, Wertkin’s counsel, Cristina Arguedas of Arguenda Cassman & Headley LLP focused on his undiagnosed anxiety and depression, the personal struggles caused by a taxing career, the aberrant nature of his misconduct, and the steps he had taken towards rehabilitation, including his cooperation and his embrace of mental health treatment. Arguedas submitted 85 character letters on Wertkin’s behalf.

In its filing, the government, which requested a mid-guidelines sentence of 34 months, focused its attention on Wertkin’s position of public trust when he stole the complaints and the continuing nature of his course of conduct. At the sentencing hearing, the government keyed in on the number of potential victims, noting that, after being charged, Wertkin had staged his office at Akin Gump to make it look as though the complaints had been mailed to him by the DOJ.  That act of obstruction initiated an investigation into blameless DOJ attorneys.

The Take Away

Though crediting Wertkin’s struggles with mental health issues and his significant support from the community, the Court fashioned a guidelines sentence. Among other factors, the need for general deterrence weighed heavily on the Court. While Wertkin, who had forfeited his law license, would never engage in this kind of activity again, the Court had to send a message that these matters are taken seriously.

A Simple Fix to Preserve the Status Quo in Light of Escobar

Friday, March 9th, 2018

The Supreme Court’s ruling in Escobar creates a new tension between CMS’s historical “pay and chase” framework and the idea that when the government continues to pay claims when it has information regarding potential fraud, the conduct involved is not material to the payment decision. Admittedly, it would be premature to commence administrative proceedings to debar providers at the inception of an investigation. However, we humbly suggest a relatively simple and straightforward solution that allows both sides (CMS and providers) to maintain the status quo during an investigation.

When facts are brought to light that, if supported, may be material to CMS’s decision to pay, the agency should issue a notice to the entity submitting the claims:

This communication is notice to your organization that we are in possession of information regarding conduct which, if established, may be material to the decision to reimburse your organization and other individuals or organizations impacted by these reimbursement decisions for claims submitted by you or on your behalf. You are on notice that past and future claims for reimbursement are impacted by this information. This notice also applies to any entities contributing to the claims for reimbursement submitted by you or on your behalf to CMS.

Ten Questions That Should be on Every Health Care Lawyer’s Radar in 2018

Thursday, February 15th, 2018

1. How far will the Supreme Court’s materiality ruling in Escobar extend?

2. Will there be any type of legislative “fix” to the Escobar ruling, and its growing progeny, being decided by scores of federal courts?

3. Will CMS more aggressively scrutinize provider submitted claims to avoid the gutting of multiple fraud investigations based on Escobar? If so, how will CMS accomplish this task?

4. Does the Department of Justice’s guidance issued on January 10, 2018, portend its future view of Escobar?

5. How will the intense mergers and acquisitions of health care providers “shake out” in the wake of the erosion and possible demise of the Affordable Care Act?

6. Will due diligence take on a new dimension in light of breakneck health care consolidation?

7. Will corporate health care compliance efforts keep up with a rapidly changing health care landscape, which includes for-profit entities, non-profit entities, and public agencies – many of which are consolidating?

8. What is the scope and appetite of State Attorneys General for robust health care investigations?

9. Will kickback investigations increase in light of the Escobar ruling?

10. Will Congress finally fix the massive Medicare Part D Prescription Drug Program to allow the United States government to negotiate the best possible prices for all Medicare beneficiaries?

When Is a Kickback Not a Kickback? Third Circuit Says It Must Be Linked to Specific False Claim

Thursday, February 1st, 2018

What Happened?

In affirming the district court’s entry of summary judgment in favor of Accredo Health Group, Inc., and its co-defendants, the U.S. Court of Appeals for the Third Circuit held that a plaintiff alleging a False Claims Act (“FCA”) violation based on an anti-kickback theory must show that (1) a particular patient was exposed to a kickback-tainted referral, and (2) a provider submitted a claim for reimbursement pertaining to that patient.

The Rundown

In United States ex rel. Greenfield v. Medco Health Solutions, Inc., et al., the relator sued Accredo Health Group, a specialty pharmacy that provides home health care for hemophilia patients, and its affiliates (collectively, “Accredo”). Accredo made donations to numerous hemophilia-related charities, two of which, according to the relator’s allegations, recommended Accredo as a provider for hemophilia patients. Relator Greenfield moved for summary judgment before the district court, arguing that Accredo’s donations-for-referrals scheme violated the Anti-Kickback Statute (“AKS)), 42 U.S.C. § 1320a-7b(b), and that the scheme ran afoul of the FCA, 31 U.S.C. § 3729 et seq., because (1) some of the referrals were directed towards Medicare patients, and (2) when submitting Medicare claims for payment, Accredo falsely certified that it had complied with the AKS. Accredo cross-moved for summary judgment on the ground that the record lacked evidence that any Medicare patient had purchased prescriptions because of Accredo’s donations to specific charities.

Without reaching the question whether Greenfield had established a kickback scheme, the district court granted Accredo’s motion for summary judgment, while denying the relator’s motion for the same relief.  It held that an FCA claim based on an anti-kickback theory requires the plaintiff to show that, as a result of the AKS violation, the defendant received payment from the federal government in violation of the FCA. Greenfield could not do that, in the Court’s view, because there was no evidence that any Medicare patient chose Accredo due to its charitable donations.

Greenfield appealed, and the U.S. Court of Appeals for the Third Circuit affirmed the district court’s grant of summary judgment in favor of Accredo. But it rejected the district court’s imposition of a “but-for” causation requirement. The Court analyzed the language of the AKS, amended in 2010 to provide that “a claim that includes items or services resulting from a violation of [the statute] constitutes a false of fraudulent claim for the purposes of [the FCA].”  According to the Court, the “resulting from” language was too broad to require proof that the Medicare patient would not have chosen the provider but for the kickback. Were the district court’s interpretation correct, the both AKS drafters’ intention to strengthen the government’s ability to punish fraudulent activities, and its revisers’ intention to bolster whistleblower actions based on medical care kickbacks would have been thwarted.

However, the Court held that a plaintiff must still provide evidence of the actual submission of a false claim to prevail at trial.  Demonstrating that a kickback scheme exists is not enough; a plaintiff must establish that the underlying medical care is connected to the breach of the AKS.  Because Greenfield could point to no “record evidence that shows a link between the alleged kickbacks and the medical care received by at least one of Accredo’s . . . federally insured patients,” the district court correctly entered summary judgment for Accredo.

The Take Away

The Court rejected both (1) Greenfield’s position that that taint of a kickback scheme is enough to infect all referrals to Medicare patients, and (2) Accredo’s argument – adopted by the district court – that a plaintiff must prove that federal beneficiaries would not have used the relevant services absent the kickback scheme. Its middle-ground position, requiring evidence that shows a “link” between kickbacks and care, is sure to spawn future litigation regarding how strong and of what character that connection must be.

4th Circuit Finds Misrepresentations about Medical Necessity for Urinalysis Testing are Material

Friday, November 3rd, 2017

The United States Court of Appeals for the Fourth Circuit has affirmed a District Court’s judgment on a husband and wife’s health care fraud convictions.  The Appellate Court found that medical necessity was a “critical prerequisite to payment” and insurers would not have knowingly paid for medically unnecessary urine drug tests.

Joseph Webb and Beth Palin, husband and wife, had been convicted of billing Medicare and private insurers for unnecessary urine drug tests.  Palin owned Mountain Empire Medical Care, an addiction medicine clinic. Palin also owned Bristol Laboratories, which processed urine drug tests ordered by physicians at her addiction medicine clinic and elsewhere.  Webb assisted his wife in the operation of both of these facilities.  Bristol Laboratories performed two types of urine tests: a basic, inexpensive “quick-cup” tests and a more sophisticated and expensive “analyzer” test.   Most referring physicians did not designate a specific type of test.  Webb and Palin decided for them.  While uninsured patients received the “quick-cup” test, insured patients routinely received both the “quick-cup” and the “analyzer” test.  Bristol Laboratories billed both government payors and private insurers for the more expensive “analyzer” test.  After a bench trial, they were found guilty of health care fraud.  Once the Supreme Court issued their ruling in Escobar, however, the couple moved for an acquittal or a new trial.

The couple attempted to overturn their convictions by arguing that Escobar has established a new materiality standard that applies to all criminal fraud statutes.  They further argued that under the new standard, their misrepresentations were not material.  The 4th Circuit Court disagreed that a new materiality standard has been established: “We do not believe the Supreme Court intended to broadly ‘overrule’ materiality standards that had previously applied in the context of criminal fraud. And we doubt the Court’s examination of how materiality applies under ‘implied false certification’ FCA cases transfers to all cases charging fraud, or even all cases charging health care fraud.”

Despite noting that they doubt that a new materiality standard applies, the 4th Circuit panel considered the argument that a new standard had been established.  The Court found that there was ample evidence to show that the insurers would not have knowingly paid for medically unnecessary tests.  The Court then applied the Escobar materiality standard, stating, “If materiality ‘looks to the effect on the likely or actual behavior of the recipient of the alleged misrepresentation,’ as provided in Universal Health, the misrepresentations here were material: insurers would not have paid for the sophisticated tests had they known those tests were unnecessary.”  The Court found that even if the Escobar standard applied, the couple’s misrepresentations were material.  Additionally, the Court found that any error on the part of the District Court was harmless because the verdict would have been the same absent the error.

All of Webb and Palin’s arguments fell short, and the 4th Circuit affirmed their convictions for health care fraud.

PBMs – Goliaths of Healthcare Operating in the Shadows

Friday, July 7th, 2017

The Pharmacy Benefit Management (PBM) industry is the Goliath of healthcare. PBMs have a huge impact on prescription healthcare that is little understood outside of the pharmacy industry. According to a November 2016 report, PBMs in the United States have revenues of $423 billion, they experienced 11-16% growth between 2011 and 2016, and they employ a workforce of at least 30,000. Additionally, Congressional testimony revealed that the top PBMs nearly doubled their profits over the past five years. The breadth and depth of the role that PBMs play in the lifecycle of a prescription drug is unequaled in healthcare. PBMs touch, in one aspect or another, nearly every drug dispensed nationally.  But if you ask the average consumer who their particular PBM is, or even what a PBM does, few could answer those questions.

PBMs are middle men, “third-party administrators” that act as on behalf of private insurers to provide all of the services needed to manage a prescription benefit. PBMs provide drug plan design services, meaning that they assist insurers in designing and maintaining the formulary, which determines what medications are covered under a particular plan. PBMs also negotiate with drug manufacturers to obtain favorable drug prices and related manufacturer rebates. Once a drug program is implemented, PBMs are supposed to assist in controlling these drug costs. Through their mail order and retail pharmacy networks, PBMs determine the drug costs and dispensing fees paid by insurance companies and by beneficiaries through copays. PBMs also process and pay claims for virtually every prescription dispensed across the country every day. Companies that operate some of the largest PBMs (i.e., CVS Health and EnvisionRx), through related entities, also control huge swaths of the specialty, mail order, and retail pharmacy industry. These wholly-integrated PBMs control the entire prescription benefit process – from designing the drug programs to dispensing prescriptions.

Due to their historical involvement in commercial prescription benefit plans, PBMs play a central role in Medicare Part D, Medicaid, and other government-sponsored prescription drug programs. However, PBMs significantly impact both commercial and government-funded prescription programs, including Medicare Part D, Medicaid, prescription programs for state and federal employees, and healthcare benefits for our military, including Tricare.

Government agencies and private insurers are David to the PBM Goliaths. Identifying, quantifying, and controlling fraud, waste, and abuse in government-funded prescription drug programs, particularly as it relates to the PBM industry, is difficult at best. One of the greatest hurdles to prescription benefit oversight is the lack of transparency between the government agencies that fund drug benefits and PBMs that manage them.

Government agencies lack access to the PBM’s relationships with both drug manufacturers and their pharmacy networks, and significant related hidden income streams. One such income stream is related to the PBMs’ negotiations with drug manufactures to set drug prices paid by the PBM, as well as related volume-based rebates that are earned on specific drugs. PBMs share these rebates with drug benefit sponsors. A second income stream for PBMs results from the role PBMs play in setting drug costs and dispensing fees paid to the PBM’s network of retail, mail order and specialty pharmacies. When prescriptions are dispensed to beneficiaries, the PBM profits from the difference or “spread” between the price the PBM negotiates with drug manufactures and the price the PBM charges its network pharmacies.

The government also lacks access to the pharmacy claims data received by the PBM. It is unable to compare the pharmacy data to claims data that PBMs submit to insurance companies. In the Part D program, this same claims data is submitted to the Centers for Medicare and Medicaid Services, (“CMS”). This lack of transparency in PBM operations is an impediment to both identify and control pharmacy benefit overpayments, particularly in Medicare Part D.[1]

Although there is a recognized need for transparency between the government and the public, on one side, and the PBM industry on the other, these efforts have yet to bear fruit. For example, even before the Part D program was added to Medicare in 2006, the General Accounting Office (GAO) highlighted the need for transparency and fairness should the Medicare drug benefit be outsourced to private insurers and PBMs. Ten years later, in January of 2013, the Office of Inspector General (OIG) called for CMS to amend Part D regulations to provide its auditors with direct access to information from pharmacies and PBMs. During September of 2015 hearings before the House Judiciary Committee on the State of Competition in the Pharmacy Benefits Manager and Pharmacy Marketplaces, witnesses addressed the concentration in the PBM industry, the ownership relationships between PBMs and retail pharmacies, and the lack of transparency in PBM operations negatively impacts competition and inures to the detriment of both health insurance plans and the ultimate consumer. One witness highlighted the lack of transparency in both rebates earned by PBMs and in prices that pharmacies were paying PBMs for drugs. Representatives of the PBM industry argued that transparency with regard to drug prices would result in price fixing.

In March of 2017, Senator Ron Wyden (D-Oregon) introduced S-637, “Creating Transparency to Have Drug Rebates Unlocked (C-THRU) Act.” The bill is focused on just one aspect of PBM secrecy – the rebates paid by drug makers to PBMs. In response, the PBM industry has again argued that secrecy in rebate negotiations is essential to allow PBMs to obtain the best prices and to prevent manufacturers and pharmacies from colluding with competitors. Whether the C-THRU Act even makes it out of the Senate Finance Committee is yet to be determined.

The process to create legislation or regulations that require transparency in the PBM industry is a very long and uncertain one.  In the near term, only an industry insider can identify conduct that results in overpayments in Part D and other government-funded prescription programs. Meanwhile, PBMs continue to control the pharmacy industry, operating unchallenged and largely in secret, to create gigantic profits.

 

[1] See The American Consumer Institute’s “Pharmacy Benefit Managers: Market Power and Lack of Transparency.” http://www.theamericanconsumer.org/wp-content/uploads/2017/03/ACI-PBM-CG-Final.pdf