LITTLE ROCK — Arkansas Attorney General Tim Griffin filed a lawsuit Monday against two pharmacy benefit managers (PBMs), alleging that they used data from drug manufacturers and distributors to maximize their financial gain instead of using it to mitigate the opioid addiction epidemic.
PBMs are companies that serve as middlemen to negotiate prescription benefits among manufacturers, distributors, pharmacies and health insurance providers. The companies rank prescription drugs, with the highest-tiered products costing consumers the lowest out-of-pocket costs.
Griffin argued in his Pulaski County Circuit Court complaint that PBMs set their rankings based on what will make them the highest profits instead of patient safety.
“PBMs benefited financially from the opioid crisis by negotiating favorable deals with opioid manufacturers and by not taking sufficient action to curb excessive opioid prescriptions,” the 60-page complaint states.
The defendants, OptumRX and Express Scripts, are two of the three largest PBMs in the nation, with CVS Caremark being the third. The two are owned by UnitedHealth Group and Cigna, respectively, two of the world’s largest insurance companies.
In May 2022, the state sued the drug manufacturers Novo Nordisk, Sanofi and Eli Lilly, accusing them of conspiring with PBMs, including OptumRX and Express Scripts, to inflate the cost of insulin. The case is still pending in Pulaski County Circuit Court under Judge Mackie Pierce’s jurisdiction.
However, the state has not yet challenged PBMs directly, Griffin said at his Monday morning press conference announcing the lawsuit.
“If you look at those players, the PBMs are uniquely situated to know what was going on and to take action to deal with it,” he said. “At the front end, they were uniquely positioned to prevent it, and at the back end, they were uniquely positioned to respond. Instead, what they did was prioritize maintaining their profits.”
The complaint asserts that OptumRX and Express Scripts “colluded with the opioid manufacturers” and “engaged in a scheme to increase the sale of prescription opioids, despite the known dangers of these drugs.”
The complaint also accuses the defendants of unjust enrichment, negligence and public nuisance. Part of the public nuisance claim arises from the defendants making it “more expensive or more difficult to obtain known, efficacious non-opioid medications for pain” and to access drugs typically used to treat opioid addiction, the complaint states.
In response to questions from reporters, Griffin said he could not share all the information that led him to make the allegations in the lawsuit, “but suffice it to say it was not a close call.”
Arkansas is not new to litigation regarding the opioid epidemic. In September 2022, the state received more than $2.5 million from three opioid distributors as part of a national $26 billion settlement. It was the first share of $216 million the state will receive under the agreement through annual payments over 18 years.
The money will be divided evenly among the state, counties and cities, as written in an October 2021 memorandum of understanding.
PBMs have long been a source of frustration for local pharmacies nationwide. A 2015 Arkansas law required PBMs to pay pharmacies at least as much as what the stores pay wholesalers for the drugs. The law was challenged in federal court upon its passage, and the U.S. Supreme Court reviewed the law in 2020.
Despite state regulations, independent pharmacies “continue to see take-it-or-leave it contracts and cuts in reimbursement,” Blake Torres, owner of West Side Pharmacy in Benton, told the Legislature’s Joint Performance Review Committee in August.
John Vinson, CEO of the Arkansas Pharmacists Association, told a legislative panel earlier this month that PBMs still overcompensate themselves and need to be regulated further.
