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Lawsuit: Walgreens conspired with PBMs to charge the insured more

On Behalf of | Aug 22, 2017 | Commercial Litigation

A Walgreens customer who was insured through Anthem Blue Cross Blue Shield has filed a federal class action lawsuit against Walgreens accusing it of conspiring to overcharge customers who have insurance. According to the lawsuit, Walgreens has secret agreements with a number of pharmacy benefit managers, or PBMs, which allow the pharmacy to charge the full copay to insured clients even though many drugs cost less than that copay — and is sold at that lower price to people without insurance.  This is remarkably similar to a case successfully concluded by Ms. Fischer against CVS/Caremark.

The lawsuit quotes the president of the Louisiana Independent Pharmacies Association as saying, “It’s actually costing you more to acquire the drug with your insurance than you could if you walked in off the street and you didn’t have insurance.”

Moreover, the lawsuit claims that PBMs such as CVS Caremark, Prime Therapeutics, Express Scripts, MedImpact and OptumRx receive a “claw back” payment, unknown to the customer, in the amount of the excess payment.

Patient noticed that paying with insurance cost him more than cost of drug

According to the Courthouse News Service, the plaintiff claims to have noticed that his Anthem copay for drugs was often significantly higher than the price an uninsured person would pay for the drug. He would have saved money by going without his insurance.

“Although the customers are told, for example, that they are required to pay $15 in a ‘copay’ for the drug, in reality this is not a ‘copay’ at all because Walgreens is sending a significant portion of the $15 back to the PBMs. The PBMs, far from assisting with the payments, are taking an extra chunk out of the customer’s copayment,” the lawsuit claims.

The plaintiff points to a written contract between Anthem and its PBM, Express Scripts, in which Express Scripts acts as Anthem’s agent to negotiate drug prices with pharmacies. Walgreens also has a written contract with Express Scripts and other PBMs which allow it to charge the full copay even when the actual cost of the drug is lower. Express Scripts, like other PBMs, pockets the difference, he claims.

He is asking a judge to declare these contracts illegal and the conduct a malicious attempt to defraud him and other class members. He is also asking the judge to enjoin the companies from continuing to engage in the conduct and to award restitution and damages to the class.

Walgreens is among the nation’s largest purchasers of prescription drugs. It has approximately 8,175 U.S. stores and pharmacy revenues of nearly $84 billion.

The firm representing this plaintiff has filed a similar lawsuit against CVS. Ms. Fischer sucessfully settled a qui tam lawsuit against CVS on similar grounds.  In that case, the government found that CVS/Caremark was significantly overcharging Medicare for prescriptions that were much less expensive if purchased without Medicare.