Pharmacies file antitrust suit against massive drug middleman

Attorneys representing Osterhaus Pharmacy, which operated in Maquoketa, IA, until last year, have filed a class-action lawsuit against CVS Caremark in federal court in Seattle. The lawsuit, filed on behalf of Osterhaus and other community pharmacies, focuses on the direct and indirect remuneration (DIR) fees the company charges through its Part D program. Pharmacies must pay DIR fees if they want to be in CVS Caremark’s network. The suit accuses CVS of significantly increasing its use of these fees and raising them sharply over the past 13 years. The lawsuit says that CVS Caremark may penalize a pharmacy “on adherence if a patient discontinues fulfilling her prescriptions at the pharmacy, regardless of circumstances. The cause may be that the patient spends winters in a different part of the country and fills her prescriptions there, or the patient was told by the physician to discontinue using a drug, or the patient died, or the manufacturer has discontinued manufacturing the drug. CVS Caremark could assess performance so that Independent Pharmacies are not penalized for these events, none of which is within pharmacy control or actually measures pharmacy performance, but it has chosen not to do so.” The suit also notes that under the Medicare Part D program, CVS requires pharmacies to join its networks and agree to a system of arbitrary claw backs even after CVS Caremark initially reconciles claims. The lawsuit asserts, “Pharmacies must accept the increasingly anti-competitive pricing and contract terms set forth by CVS Caremark or face exclusion from its Part D network.”