Friday, Judge Richard J. Leon of the U.S. District Court for the District of Columbia heard closing arguments from attorneys for the parties and also from several friends of the court (amicus curiae) opposed to the nearly $70 billion acquisition of Aetna by CVS Health. While he did not issue a decision, Judge Leon stated his intent to issue that decision in the not-so-distant future, noting that the merger potentially has “grave consequences to millions of people.”
Among the harms feared by AHF are those described by its Chief Medical Officer, Dr. Michael Wohlfeiler, JD, MD, AAHIVMS, at last month’s evidentiary hearing. Friday, he added, “As an HIV doctor for over three decades, I know that personal, high touch interactions keep chronically ill patients engaged in their care and adherent to their medications – the key to staying healthy. AHF’s pharmacies provide those high-touch services, including education, counseling, follow-up calls and medication management. Because our HIV specialist pharmacists regularly see or call their patients about their prescriptions, our pharmacists are often the first person in the patient’s care team to know when the patient is either at risk or has actually fallen out of care. And our model works – it is far more effective at keeping patients’ viral loads undetectable than other providers. The PBM’s alternative – a faceless, specialty mail order service lacking that critical human touch – can’t compete. The way we see it, the merger is CVS’s way of avoiding competition and preventing patient choice, by simply pushing independent pharmacies off the playing field.”
“The deck is already stacked against community and specialty pharmacies like AHF’s,” says Laura Boudreau, AHF’s Chief or Operations/Risk Management and Quality Improvement. “PBMs want more and more of this business – especially the specialty pharmacy business — for themselves because specialty medications are expensive and therefore lucrative. PBMs are willing and able to use unfair and anticompetitive tactics like oppressive reimbursement (DIR) fees and forced mail order to take that business away from independent pharmacies. When the health plan, PBM, and pharmacies all merge – as they do here – they create an 800-pound gorilla that can and does keep vulnerable patients from accessing their pharmacy of choice and forces them to accept worse services at higher costs.”
At the end of its oral argument, while AHF urged the court to reject the merger settlement, AHF also proposed a third path for the court – beyond mere approval or rejection of the proposed settlement. AHF proposed that the court consider conduct remedies; that is, remedies that would address the vertical integration concerns raised by AHF. These remedies include adding to any settlement:
- A provision requiring that all rival pharmacies have non-discriminatory access to CVS Caremark’s pharmacy networks at fair reimbursements that cover actual drug costs and dispensing costs.
- A provision that managed care plans should not be denied access to CVS Pharmacy networks, and that managed care plans’ access should be at a fair price.
- A provision that all Aetna plan members must be allowed to opt out of any CVS/Caremark specialty or other mail order programs.
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Date: July 29, 2019
Source: Business Wire