A new litigation is brewing up against OptumRx’s arbitrary MAC pricing. A recent case was filed by 29 pharmacies against OptumRx in Pennsylvania, arguing breach of contract and bad faith in carrying out its contractual obligations. OptumRx filed a motion to dismiss and to compel arbitration. As a result, 28 pharmacies were sent to arbitration, but one – Lakeview Pharmacy- was allowed to proceed because the contract between OptumRx and Lakeview Pharmacy’s PSAO did not contain an arbitration clause.
Later in the proceedings, the court found that OptumRx failed to promptly respond to the pharmacy’s appeals and to retroactively reimburse successful appeals. The Court further found that the factual allegations were enough to establish a plausible claim that the MAC pricing appeals were not reasonable and were conducted “arbitrarily, capriciously, or in a manner inconsistent with the reasonable expectations of the parties,” i.e. a claim for bad faith. Thus, Lakeview Pharmacy is now able to continue its action against OptumRx.
Subsequent to the court’s decision, Lakeview Pharmacy added two additional contract claims against OptumRx: (1) setting reimbursement prices below acquisition costs; (2) failure to set a single reimbursement amount for similar drugs. The court allowed the pharmacy to proceed on this amended complaint. OptumRx filed an Answer to the Amended Complaint. As a result, the pharmacy now can litigate on the merits of the facts alleged.
This precedent opens a door to successfully alleging breach of contract claims against OptumRx on arbitrary MAC pricing and appeals. California is an ideal forum to bring such an action due to our strong precedent on “Unfair Competition and Unfair Business Practices” litigation, as well as California’s MAC law. See Cal. Bus. & Prof. Code § 4440
California statute requires, among others,
“a PBM to review and make necessary adjustments to the MAC of each drug on the list using the most recent data sources available at least once every 7 days.”
It also provides that pharmacies can
“challenge the MAC if (A) the MAC is below the cost at which the drug is available for purchase by similarly situated pharmacies in the state from a national or regional wholesaler or (B) the drug does not meet the conditions for inclusion.”
If you have unsuccessfully appealed OptumRx’s (or Catamaran’s) MAC pricing, we want to hear from you. Please contact our office for more details on how to join the lawsuit and get it off the ground in California.