INSULIN LITIGATION UPDATE - November 6, 2018. At the case management conference for In re Insulin Pricing, Judge Brian Martinotti ruled “pursuant to the interest of justice” that T1DF’s putative insulin class action, Boss v. CVS Health Corporation (Case No. 3:17-cv-01823) will be unconsolidated from the putative class action against insulin manufacturers, In re Insulin Pricing Litigation (3:17-cv–00699). Patients’ claims against PBMs and insurers for rebate capture and misrepresentation of plan cost will no longer be stayed, and can go forward independently from the manufacturer-only action.

In a June 7 letter, T1DF asked Oregon's Gov. Kate Brown to address the oversight failure that has allowed the Oregon Prescription Drug Program to overcharge under- and uninsured Oregonians instead of fulfilling its statutory mandate to offer "lowest possible cost" on prescription drugs to OPDP discount card holders. OPDP discount card holders pay unrebated prices at the pharmacy counter on deep-discount rebated brand drugs like analog insulins. When individuals buy these drugs at the pharmacy counter, payers and bulk purchasers like Moda-administered OPDP receive large manufacturer rebates, amounting to 75%+ of list price. What happens to manufacturer rebates earned when OPDP discount card holders are asked to pay OPDP's current prices, $270.71 for a 10 ml vial Novolog and $269.85 for Humalog? These are not "lowest possible" prices. Even for-profit commercial enterprises like BlinkHealth and GoodRx now charge far less than OPDP does in its discount card program—BlinkHealth's Humalog price is $178.90 per vial, GoodRx prices Humalog at $177.87 Are discount card holders' earned rebates being transferred to other OPDP programs, while under- and uninsured Oregonians pay 3 or 4 times OPDP's net cost for their analog insulin?

HB 4005 should not be needed. The Oregon Prescription Drug Program (OPDP) created in 2003, with expanded access to all uninsured and underinsured Oregonians via 2006’s Ballot Measure 44, should already be delivering to under- and uninsured individual Oregonians net price transparency and the lowest available price, net manufacturer rebates, at the pharmacy point of sale.

If this Task Force on Fair Pricing wants to achieve the stated goals of HB 4005—drug-pricing transparency and lower prescription drug prices to Oregonians—it should begin by investigating why OPDP, a program over which the Oregon government has plenary control, has not fulfilled its statutory mandate to deliver the lowest price available, i.e. point-of-sale rebate pass-through to individual discount card holders. 

On Friday, March 16, in New Jersey federal court, Julia Boss, president of the Type 1 Diabetes Defense Foundation, moved to establish a litigation track against PBMs and insurers in the insulin class action (In Re Insulin Pricing Litigation, Case No. 3:17-cv–00699-BRM-LHG). She thus challenged interim co-lead counsel Steve Berman and James Cecchi’s and Keller Rohrback’s coordinated attempt to prevent T1DF from implementing a dual-track litigation against PBMs and insurers, concurrent with the manufacturer-only consolidated complaint filed in December 2017. PBM rebating expert Larry Abrams recently wrote on his blog that Berman and Cecchi’s manufacturer-only consolidated complaint “makes no sense.” In light of increasing public knowledge and expert consensus, throughout 2017, regarding the impact of insurers’ failure to pass through rebates, Boss argued on Friday that pursuing a PBM/insurer track parallel to the manufacturer track is “critical to delivering immediate, tangible relief to the class.”