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Compounding pharmacies take on Express Scripts

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Compounding pharmacies believe that Express Scripts Inc. worked to “significantly eliminate their revenue” and “drive them out of the marketplace” by limiting reimbursements and fulfillment of prescription compounded drugs, a plaintiff attorney said.

“These are pharmacies who have been harmed by the conduct of Express Scripts and its co-conspirators and are the ones who approached us about seeking redress for their injuries,” Steven Bloch, a partner at Bailey & Glasser L.L.P. law firm in West Conshohocken, Pennsylvania, said Wednesday in an interview.

A spokesman for Express Scripts declined to comment about the pending lawsuit on Thursday, but said the St. Louis-based PBM plans to “vigorously defend” itself against the antitrust allegations.

“We believe that on behalf of our clients, there is a lot we can do to reduce unnecessary spend on compound medications when there are (alternative medications) available,” the spokesman said.

Plaintiffs in Precision RX Compounding L.L.C. et al. v. Express Scripts Holding Co. et al. allege that Express Scripts, CVS Health Corp., OptumRx Inc. and Prime Therapeutics L.L.C. worked to “jointly boycott compounding pharmacies to eliminate plaintiffs from the market for pharmaceuticals covered by group and individual health plans,” according to the suit filed Friday in U.S. District Court in St. Louis.

Only Express Scripts and Express Scripts Holding Co. are named defendants in the suit.

Two or more medications that are combined outside their typical, commercially available form, such as pills, are compounded drugs. Such medications often are customized for each patient; they include topical creams and gels, injections and oral liquids, anesthetics, anticonvulsants, analgesic painkillers and muscle relaxants.While compounding pharmacies typically bill insurers and employers for each ingredient in a prescription, PBMs in recent years have tried to reduce group health and workers compensation spending on the costly prescriptions.

The plaintiffs are seeking unspecified damages and injunctions to require Express Scripts to process and pay the plaintiffs' claims.

The plaintiffs include Precision Rx Compounding in Tampa, Florida; C&M Health Pro L.L.C. in Kissimmee, Florida; Northern VA Compounders P.L.L.C. in Chantilly, Virginia; Toth Enterprises II P.A. in Austin, Texas; Austin-based The Daily Dose L.P. and CPRx Pharmacy L.P. of Cedar Park, Texas.

The suit is the latest by compounding pharmacies against Express Scripts.

In 2014, a separate group of compounding pharmacies sued the PBM in the same court. In March 2015, U.S. District Court Judge Henry Edward Autrey denied a request for a preliminary injunction and a temporary restraining order against Express Scripts, and the U.S. 8th Circuit Court of Appeals on Jan. 11 affirmed that ruling.

The prior suit against Express Scripts argued that the PBM unlawfully denied group health plan claims for compounded medications in violation of the Employee Retirement Income Security Act, while the recent lawsuit alleges that Express Scripts violated federal antitrust law by conspiring to drive pharmacy competitors out of the marketplace.

Mr. Bloch said it was “coincidental” that the antitrust lawsuit was filed less than a week after the 8th Circuit's ruling.