Express Scripts-Medco suit gets court hearing Tuesday

A batch of lawyers are scheduled to argue on a conference call Tuesday morning, with the topic being Monday's acquisition of Medco Health Solutions by Express Scripts.

Attorneys for the National Association of Chain Drug Stores (NACDS), the National Community Pharmacists Association (NCPA), and nine retail pharmacy companies near Pittsburgh filed suit last week in federal district court, trying to stop the proposed merger of the two pharmacy benefit manager (PBM) companies.

Judge Cathy Bissoon will preside over Tuesday's discussion about a request for restraining order.

The disputed deal would push together the first and third largest PBMs, which run drug plans for employers (public and private) and fill mail order prescriptions.

The plaintiffs asked that Express Scripts "be ordered to hold separate Medco’s assets and operations after consummating the proposed acquisition and pending entry by the Court of a final judgment in this action," according to the suit.

Tuesday's Inquirer story is here, but folks had plenty more to say on debate around this $29.1 billion deal that touches millions of Americans whether they know it or not.

The NACDS, NCPA and pharmacies say they are mounting an "all-levels, all branches of government" approach to continuing the fight against Express Scripts Holding Co., the new name for the merged company.

"Community pharmacy has unsurpassed value in improving health and reducing costs across the board. We believe that this legal action will put further emphasis where it should be – on patients,” NACDS President and CEO Steven C. Anderson and NCPA CEO B. Douglas Hoey said in the statement.

The joint statement is here. Some Pennsylvania pharmacists will be in Harrisburg Tuesday to make the case to legislators.

Philadelphia's pharmaceutical consultant Adam Fein said the numbers don't back up the assertion that independent pharmacies are dying.

Fein noted that there had been almost no change in the number of pharmacist-owned independent drug stores from 2000 to 2010 and that the mail-order segment had also lost market share. The segment gaining share was chain drug stores, such as CVS Caremark, and those run by retailers such as Wal-Mart.

Fein's blog post on this topic is here along with links to prior papers.

Meanwhile, Steve Miller, the chief medical officer of Express Scripts, said the company's goals will be applied to the new business:

  • Drive savings by eliminating waste, fraud and abuse from the system.
  • Enhance safety through drug utilization reviews, so patients don't get conflicting prescriptions from different doctors.
  • Improve adherence, meaning making sure that patients take the drugs that are prescribed for them so they avoid more expensive problems later.

"The greatest savings can be found in the drive for better adherence," Miller said. "About $300 million a year is wasted by patients not taking their medicine. Diabetics not well-controlled. Cancer patients giving up too early on first-line treatments. Multiple sclerosis patients not adhering to their prescription and ending up in the emergency room."

Where all of that gets tricky - and legally contentious - is who does that best, while staying in business and making a profit.

Express Scripts wants to handle all of the chronic disease care, such as cholesterol pills and diabetic supplies, and retail pharmacies to handle acute drugs and needs that are more difficult to respond to quickly by mail. The retail pharmacists say they can't make enough money doing only that and it creates gaps in knowledge about patients.