On June 7, the Federal Trade Commission (FTC) announced
that it will begin an inquiry into PBM practices – particularly the actions of
the 6 largest PBMs (CVS Caremark, Express Scripts (ESI), Optum, Humana, Prime,
& MedImpact).
The action was anticipated in light of the U.S. Senate confirming,
with Vice President Kamala Harris’ tie-breaking vote, Alvaro Bedoya to fill the
5th FTC Commissioner seat that had been vacant since October 2021.
That confirmation enabled the FTC to get past the failed
2-2 vote on February 17 to approve such an inquiry.
This announcement comes on the heels of recent congressional
and administrative scrutiny of PBMs:
A May 16 request of such action by a
bipartisan group of U.S. Senators: U.S. Senate Finance Committee Chairman
Ron Wyden (D-OR), Ranking Member Chuck Grassley (R-IA), and Senator Mike
Braun (R-IN)
- A May 13 U.S. Senate
Commerce Subcommittee hearing and a May 27 bipartisan introduction of a
Senate PBM bill (attached are PC Federal Alert/Updates with additional
background)
- The over 24,000 public
comments (including a letter from AmerisourceBergen, signed by leaders from Good Neighbor Pharmacy, Elevate Provider Network, and AmerisourceBergen's Specialty Physician Services group) that the FTC received to its
February 24 Request for Information about PBM practices
- And in a related
development, on May 31 the FTC and DOJ announced a June 14-15 joint
virtual public workshop examining antitrust enforcement in the
pharmaceutical industry
Here
is additional information regarding the FTC’s inquiry:
- The FTC is issuing the orders under Section 6(b) of the
FTC Act, which authorizes the Commission to conduct studies without a
specific law enforcement purpose. The companies will have 90 days from
the date they receive the order to respond. Financial penalties are
possible if an inquiry recipient fails to do so and Section 6(f) of the
Act authorizes the agency to
share confidential information with other appropriate enforcement
agencies, subject to appropriate limitations
and confidentiality. The FTC is empowered to make public some
info subject to the restrictions and can release to Congress a report on
its findings with recommendations for legislation.
- The Commission
voted 5-0 to issue the Section 6(b) orders and conduct the study of
PBMs’ business practices. Chair Lina
M. Khan, Commissioner
Rebecca Kelly Slaughter, and Commissioner
Alvaro Bedoya issued
statements. Commissioners
Noah Joshua Phillips and Christine S. Wilson issued a joint
statement.
- The FTC announced that
it is seeking to “shed light” on several PBM practices, including:
- fees
and claw backs charged to unaffiliated pharmacies;
- methods
to steer patients towards pharmacy benefit manager-owned pharmacies;
- potentially
unfair audits of independent pharmacies;
- complicated
and opaque methods to determine pharmacy reimbursement;
- the
prevalence of prior authorizations and other administrative restrictions;
- the
use of specialty drug lists and surrounding specialty drug policies; and
- the
impact of rebates and fees from drug manufacturers on formulary design and the
costs of prescription drugs to payers and patients.
AmerisourceBergen will continue to inform you of our active engagement with key allies such as NCPA, and noteworthy developments on PBM issues which particularly impact
our Good Neighbor Pharmacy and Elevate Provider Network independent pharmacy partners and the patients
they serve.