Nationally Recognized Expert in Health Care and Life Sciences, Educator, Regulatory Consultant, Patient Access Advocate, Independent Director, and Retired Sidley Austin Partner
The Double Standard that Protects #CMS, #MAPlans, and #PBMs In 2007, 17 years ago, Judge Saris, in the #AWP case, took #drug makers to the watershed for EXACTLY what #CMS, #MedicareAdvantage plans, commercial payers, and #PBMs do to patients EVERY day. What was bad for the goose (manufacturers) is perfectly fine for the many ganders out there. It’s time to throw a flag on this ridiculous double standard. The Case: I’m rereading In re: AWP for the law school course I’m teaching in the Fall, and, as happens each time I read it, my head explodes. Judge Saris was merciless in her criticism of how Average Wholesale Price, because it did not reflect rebates and other discounts, affected patients. “Disturbingly”, Saris wrote, “the patient was a vulnerable victim” of AWP as the means to peg both #reimbursements and #copays. This was so, she said, because the “inflated” AWPs that did reflect rebates and discounts, meant that “the Medicare patient was required to make a co-payment” that was itself “inflated”. With obvious disgust, she concluded her rant by intoning that ”manufacturers understood well the harmful impact that publishing inflated AWPs had on the elderly cancer patient” through the inflated copays they paid. I wish that some of Judge Saris’ outrage could now be turned towards #Congress, #HHS, #CMS, MA plans, and their #PBMs. All of these “ganders” are responsible for inflated Part D “negotiated prices” that impose the very same kind of inflated #costsharing “percentages” on vulnerable patients. The “ganders” know that—but they have enshrined inflated prices in Part D “negotiated price” and profit of off it. The same dynamic exists in the commercial insurance market. The ganders don’t care. #InflationReductionAct supporters will say: “Ah ha—but that is the beauty of the the IRA. It will mean truly negotiated prices where a net price will be the basis of the cost share.” Well, I fear that is doubly wrong. First, that only applies, if it applies at all, to #IRA “selected drugs”. So many patients using so very many other #drugs are necessarily subjected to exactly the kind of inflated copays that Judge Saris decried under the #PartD statute’s “negotiated price” deception. Second, I’m skeptical that patients even get the benefit, at least in the early years of the IRA, of “select drug” copay rates, which, on paper, will be lower. Why’s that? As I have said before, I’m not understanding why plans and PBMs won’t push patients using those select drugs to high list/high rebate alternatives—forcing patients to continue to pay the inflated copays Judge Saris found “[d]isturbing”. Lower copays on paper that aren’t actually accessed don’t mean nothin’. Why hasn’t 17 YEARS been sufficient to systematically fix this #patientharm? Senator Sanders, let’s stop the finger pointing exercise, and just fix this problem. #lifesciences #drugpricing #managedcare #healthcare
John Storey
1mo
Federal Trade Commission has no war room with no chalkboard with no real leadership
Ann Lewandowski
1mo
Yes and yes! Time to remind OIG that rebates are simply kickbacks by another name and allowed by government exemptions to the AKBS. Also, what class is this and where will you be teaching?
Health Policy Regulatory and Legislative Expertise; Market Innovator
1moI think it’s a problem in the law with how the 25 percent cost share is set in Medicare. I hope the Finance’ proposal which is a good start goes through. But looking at the politically inspired dishonest rhetoric around the basic Part D premium increase for the lower cost) below national avg) plans, I fear that the drive for further improvements in cost sharing may be waning.