If insulin manufacturers don’t want to be part of Minnesota’s solution to high insulin prices, there are other ways to compel their participation instead of expecting taxpayers to foot the bill (“State faces setback on insulin program,” July 6).

It does appear that the Minnesota Legislature is going to have to come up with a new plan for providing insulin to people who can’t afford it. The new approach will have to be different from passing a law that requires drug companies to provide the insulin for free or be fined. It will need to be legal (constitutional) and it must have the state act in a manner that government usually employs to accomplish its public policy goals. Such actions include licensure, regulation and taxation, among others.

So, what should we do? Let’s look at pharmacy benefit managers (PBMs). PBMs are companies that manage prescription drug benefits on behalf of health insurers. PBMs play an enormous role in determining drug costs, patient access to medications and how much pharmacies are paid. PBMs are the middlemen in the distribution chain for prescription drugs.

PBMs are facing scrutiny over their role in rising drug costs and spending. Drug manufacturers pay rebates to PBMs in order to get their products included in the formularies of covered medications used by insurers. These rebates paid to PBMs aren’t publicly disclosed. To make the situation worse, market power is highly concentrated, with three PBMs controlling about 80% of all prescription claims. That’s a lot of power and a lot of money.

There are other things PBMs do as well. They use copay clawbacks and so-called gag clauses. It is the copay clawback that presents the best opportunity in terms of helping those in desperate need.

Your doctor writes you a prescription for a drug. You take it to your pharmacy. The pharmacy submits the transaction through its computer and is told by the PBM that is administering your drug coverage how much you have to pay out of pocket.

Here is the fascinating part: That amount may be greater than what you would pay if you told the pharmacy you had no insurance or used one of the RX apps on your phone to get a discount coupon. I cannot emphasize strongly enough that the price you pay is determined by the PBM that controls your health plan’s prescription drug benefit and not by your pharmacy.

So, what happens to the extra money you pay? The PBM keeps the extra for itself, or “claws” it back. The pharmacy is contractually required to give the extra to the PBM.

Wait, there’s more. If you can figure all this out and demand the lower price, you’ll get it but you will be told the money you are spending for the prescription drug your doctor prescribed for you will not count toward your insurance copay or deductible. How can that be? Welcome to the wonderful world of health care.

By now you’re thinking let’s just ban pharmacy copay clawbacks. There are at least 20 states that have enacted anti copay clawback laws. Minnesota isn’t one of them. But before we start laying blame, which is seldom productive, it is important to note that consumers can be victimized by more than clawback schemes. There are other tricks, such as, direct and indirect remuneration (DIR) fees. These are the fees that a PBM takes back from the pharmacy months after you fill your prescription. DIR fees are not considered clawbacks.

What to do? Let’s take a look at the underpinnings of the problem. They are contractual secrecy, intimidation and internal price inflation.

On May 20, 2019, Gov. Tim Walz signed the Minnesota Pharmacy Benefit Manager Licensure and Regulation Act into law. Minnesota’s law requires PBMs to be licensed by the Department of Commerce and to disclose information about drug rebates and pricing to the state annually.

Great! Now let’s make the Commerce Department and the Minnesota Department of Revenue identify clawbacks and DIR schemes, as well as rebates, and tax them. Make the PBMs file their contracts with the Commerce Department or lose their license in this state. Let’s audit and tax these middlemen and use the revenue to provide insulin or other life saving drugs to those in need.

H.L. Mencken said: “For every complex problem there is an answer that is clear, simple and wrong.”

What we did this year to deal with the cost of insulin was clear, simple and wrong. Now it’s time for the hard work that our Legislature must undertake. Nobody said it would be easy, but it must be done.

 

David Feinwachs, of St. Paul, is a health care lawyer and lobbyist.