Updated May 16, 2018

What New Jersey's drug plan do-over says about the industry

Pharmacy benefit managers approve and pay for prescriptions. Photo: Brendan Smialowski/AFP via Getty Images

Last year, New Jersey awarded pharmacy benefit manager OptumRx a $6.7 billion contract to oversee prescription drug benefits for the state's 835,000 public employees, retirees and dependents. But now New Jersey has to redo the process after a court said OptumRx "improperly hedged" its contract.

The big picture: There's reason to believe this type of financial hedging exists in most contracts involving the big PBMs.

Driving the news: The New Jersey court faulted OptumRx for inserting a clause that would have guaranteed the PBM's profits by giving it the right to "modify financial contracted terms" if the state tinkered with drug benefits — for example, if the state altered how specialty medications are covered.

  • The judge said the language gave OptumRx, which is part of UnitedHealth Group, "a clear competitive advantage."
  • CVS Caremark, Express Scripts and OptumRx — the three PBMs that bid on the New Jersey contract — did not respond to questions about the court's ruling, their proposals or the state's rebid.

Between the lines: This is like saying you'll sell your house for $200,000, but that price could go up if certain events happen. No buyer would agree to that.

  • Yet "virtually all PBM-client contracts contain language allowing the PBM to change pricing terms and guarantees unilaterally," said Linda Cahn, an attorney who consults with employers on their drug contracts.

Go deeper: According to a contract template Axios obtained earlier this year, Express Scripts has the right to change "rates, administrative fees and/or rebates, solely as necessary to return (Express Scripts) to its contracted economic position" if the following events with their employer clients occur:

  • "A material change in: (i) the conditions or assumptions stated in this agreement; or (ii) the size, demographics or gender distribution of sponsor's membership compared to data provided by sponsor."
  • "Sponsor changes its formulary, benefit designs...or otherwise takes an action that has the effect of lowering the amount of rebates earned."
  • "Sponsor elects to use on-site clinics or pharmacies to dispense prescription drugs to members which materially reduces rebates and/or the number of covered drug claims submitted online."
  • "More than 5% of claims are incurred in Massachusetts, Hawaii, Alaska, or Puerto Rico."
  • "Rebate revenue is materially decreased because brand drugs move off-patent to generic status or due to a change in law."

Translation: Express Scripts could potentially overhaul its drug pricing contracts if employers recruit too many women, or if rebate dollars decrease unexpectedly.

The bottom line: These are large, complicated drug contracts. Dominant PBMs craft the deals in ways that will always be in their interests.

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Acting Navy head apologizes for calling fired captain "stupid"

Acting Secretary of the Navy Thomas Modly testifies on Capitol Hill in December. Photo: Saul Loeb/AFP via Getty Images

Acting Navy Secretary Thomas Modly apologized Monday for calling Capt. Brett Crozier, the ousted commander of the USS Theodore Roosevelt, "too naive or too stupid" over his letter pleading for help following a coronavirus outbreak onboard.

The big picture: His apology came after President Trump told a news briefing earlier Monday he would "get involved" following a leak of Modly's remarks on Crozier to the ship's crew, obtained by CNN.

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Coronavirus dashboard

Illustration: Sarah Grillo/Axios

  1. Global: Total confirmed cases as of 9:30 p.m. ET: 1,346,299 — Total deaths: 74,679 — Total recoveries: 276,636Map.
  2. U.S.: Total confirmed cases as of 9:30 p.m. ET: 367,507— Total deaths: 10,908 — Total recoveries: 19,598Map.
  3. 2020 update: Wisconsin Supreme Court blocks governor's attempt to delay in-person primary voting delayed until June.
  4. States latest: West Coast states send ventilators to New York and other states with more immediate need — Data suggest coronavirus curve may be flattening in New York, Gov. Andrew Cuomo said.
  5. World update: U.K. Prime Minister Boris Johnson moved to intensive care as coronavirus symptoms worsen.
  6. Stocks latest: The S&P 500 closed up 7% on Monday, while the Dow rose more than 1,500 points.
  7. What should I do? Pets, moving and personal health. Answers about the virus from Axios expertsWhat to know about social distancingQ&A: Minimizing your coronavirus risk.
  8. Other resources: CDC on how to avoid the virus, what to do if you get it.

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Former Vatican treasurer George Pell's sexual abuse convictions overturned

Cardinal George Pell at the County Court in Melbourne, Australia, in 2019. Photo: Michael Dodge/Getty Images

George Pell, the former Vatican treasurer, has won his appeal and had his child sexual abuse convictions overturned by Australia's High Court.

Why it matters: The cardinal became last year the highest-ranking Catholic Church official to go to trial and be convicted for sex abuse. But the High Court's ruling means he can be immediately released from prison, where he was serving a six-year sentence.

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