ALBANY COUNTY — In its latest lawsuit, part of a years-long attempt to hold someone accountable for the opioid epidemic, Albany County claims the roles of two large companies “in causing the opioid epidemic has been largely concealed from public view.”
The suit, filed May 6, further states that Express Scripts and UnitedHealth along with a number of each company’s pharmacy-benefit manager subsidiaries has “for no less than the last two decades … had a key role in facilitating the oversupply of opioids through intentional conduct, ignoring needed safeguards in order to increase the prescribing, dispensing, and sales of prescription opioids.”

County spokeswoman Mary Rozak explained that, while the May 6 suit was filed separately from other opioid-related lawsuits brought by the county, it is part of the “big aggregate” of earlier suits filed by Albany County against opioid manufacturers and distributors. 

Since about the 1980s, pharmacy benefit managers, known as PBMs, have been the middlemen negotiating with drug manufacturers on behalf of health plans of all kinds: government, private, and employer-based. Albany County, for example, has a  prescription drug coverage program administered by Express Scripts.

At first, because of competition, PBMs reduced drug prices. But consolidation of the industry — three companies, two of which are Express Scripts and UnitedHealth subsidiary OptumRX, now control 85 percent of the market — has  led some to argue that PBMs actually increase prices.

Optum in a statement to The Enterprise said it “did not cause the opioid crisis or make it worse, and we will defend ourselves in this litigation. Optum takes the opioid epidemic seriously and has taken a comprehensive approach to fight this issue, including the Opioid Risk Management Program available to all Optum Rx clients, to address opioid abuse and promote patient health.”

Express Scripts did not immediately respond to a request for comment. 

PBMs, Albany County claims, have gone from having limited fiscal and administrative functions to wielding enormous influence over the nation’s prescription drug system, managing the pharmacy benefits for millions of Americans and controlling a vast pharmacy network, which has placed them in the unique position of controlling the opioid supply chain.

The actions of Express Scripts, UnitedHealth, and their respective PBM subsidiaries has led to a public health crisis in Albany County, the suit claims, for which the county has incurred and will continue to incur excessive costs to treat the opioid epidemic. 

The county claims there has been a significant local increase in opioid-related deaths and emergency-room visits. 

In 2015, there were 31 opioid-related overdose deaths in Albany County, while six years later, that number jumped to 132 deaths. At the same time, across New York state, the rate of drug overdose deaths increased from 5 per 100,000 in 2010 to 25 per 100,000 in 2017.

The suit further states the opioid epidemic has had a devastating impact on infants in Albany County, and that “babies born addicted to opioids due to prenatal exposure are being placed in the care of the County or local citizens or non-profits who do their best to comfort them through the pain of withdrawal,” and goes to to cite different data sets without year-to-year comparables to illustrate the impact opioids have had on infants.

Formularies and data

PBMs have been able to exert their significant yet non-transparent influence by controlling the prescribing, dispensing, and sales of prescription drugs through the formularies they provide, according to court papers. Formularies are a PBM’s list of prescription drugs covered by a particular health-insurance plan. 

Through their formularies, Express Scripts and UnitedHealth, the county asserts, “act as the gatekeepers to the opioid market,” a position which has allowed them to make a significant amount of money. 

Express Scripts and its subsidiary, Medco Health Solutions, according to Albany County’s complaint, played a significant role in the commercial success of Purdue Pharmaceuticals OxyContin by granting the drug preferred formulary status without prior authorization. And that decision, to grant OxyContin preferred status, the county claims, was heavily influenced by the substantial rebates provided by Purdue. 

In the pharmaceutical industry, a rebate is a negotiated kickback from a drug manufacturer to a PBM for including the manufacturer’s drug on a health plan’s formulary; typically, a rebate is a percentage of a drug’s list price. And by placing opioids on formularies with preferred status and little to no limits on approval, Express Scripts and UnitedHealth made it easier for patients to obtain the drugs, for prescribers to prescribe them, which ultimately contributed to the opioid epidemic, the county argues.

PBMs, the county asserts, process and dispense billions of prescriptions each year, including opioids, allowing them to track every aspect of opioid movement within the prescription drug distribution and payment systems, which has led to  valuable insights into prescribing habits at both the patient and prescriber level.

This data has allowed PBMs to monitor individual prescribers, pharmacies, prescriptions, and patients for behaviors that are commonly associated with opioid misuse, addiction, and diversion, and given them a comprehensive understanding of opioid use and potential misuse, Albany County claims. 

The data has also enabled PBMs to identify dangerous prescribing patterns and risks related to opioid use, such as doctor shopping, early refills, and high volumes of prescriptions.

But the county argues PBMs have not used this data to address the opioid crisis. Rather, they have prioritized profits using the data to boost their own bottom lines and those of opioid manufacturers.