October 20, 2022
Ms. Seileen Mullen
Acting Assistant Secretary of Defense for Health Affairs
Defense Health Agency
7700 Arlington Boulevard
Suite 5101
Falls Church, VA 22042-5101
Dear Ms. Mullen:
On behalf of the Board of Directors of the Community Oncology Alliance (COA), we are writing this letter to express outrage at the shameful treatment of active military and veterans (collectively referred to herein as “Military”) at the hands of the pharmacy benefit manager (“PBM”) Express Scripts, which has been empowered by TRICARE. In early 2020, we sent a letter to then Assistant Secretary McCaffery on the disgraceful treatment of our Military and their families by TRICARE. Unfortunately, as we detail in this letter, the situation has gone from bad to worse at the hands of the PBM. You must immediately address this terrible situation our Military and their families with cancer and other serious diseases face. They deserve the very best medical care, not cut-rate care at the hands of some profit-seeking PBM.
By way of background, COA is an organization dedicated to advocating for the complex care and access needs of patients with cancer and the community oncology practices that serve them. COA is the only non-profit organization in the United States dedicated solely to independent community oncology practices, which serve the majority of Americans receiving treatment for cancer. Since its grassroots founding close to 20 years ago, COA’s mission has been to ensure that patients with cancer receive quality, affordable, and accessible cancer care in their own communities where they live and work, regardless of their racial, ethnic, demographic, or socioeconomic status.
Background
As you know, TRICARE is the Department of Defense (“DoD”) health care program administered by the Defense Health Agency (“DHA”) by means of the Military Health System for approximately 9.5 million Military and their families. Part of the TRICARE health care program is the TRICARE Pharmacy Benefits Program, authorized under 10 U.S.C. § 1074g and 32 C.F.R. 199.21. The TRICARE Pharmacy Benefits Program, in theory, enables Military and their families to receive pharmacy benefits from not only military treatment facilities, but also a network of civilian providers and pharmacies, including independent community oncology practices, located in their own communities.
DHA outsources the administration of the TRICARE Pharmacy Benefits Program to a private corporation, currently the PBM Express Scripts, which is the second largest PBM in the nation by market share, managing approximately 25 percent of all covered prescription drug claims.[1] Express Scripts, which is owned by the insurer Cigna, owns a mail order retail pharmacy[2] and Accredo Health Inc., which operates Accredo Specialty Pharmacy.[3]
Earlier this year, DHA awarded Express Scripts a multi-year contract to serve as the sole PBM to administer the pharmacy benefit offered to TRICARE beneficiaries after a bidding process that involved only two proposals submitted.[4] In order to participate as a network provider in the TRICARE Pharmacy Benefits Program, providers must first have a contract with Express Scripts.
Express Scripts is out to maximize profits from the DHA contract; not provide the highest-quality health care to the Military.
In its role as the PBM for the TRICARE program, in late July 2022, Express Scripts sent providers across the nation a new TRICARE contract/network agreement for contract year 2023. Express Scripts required providers to execute and return the contract within 15 days of receipt, otherwise the providers were deemed to have declined participation for the entirety of contract year 2023. We note that in substantial feedback from retail pharmacists, as well as from oncology and urology practices with dispensing facilities or associated specialty pharmacies, it is clear that Express Scripts did everything to hinder providers from responding. In many cases the network agreement was faxed to providers, when typically emailed, and the time frame for response was unreasonably short.
In many cases, Express Scripts has sent letters directly to Military personnel informing them that as of October 24, 2022, they will no longer be able to get their medications from their regular pharmacy provider. That includes Military patients with cancer who typically receive their oral chemotherapy and related drugs at the point-of-care from their oncologists. We have received numerous reports of Military patients confused and dismayed by this letter and are contacting their cancer care providers for assistance. In these same letters, Express Scripts is directing TRICARE Military patients with cancer to Accredo Health Group, which is a specialty pharmacy owned by Express Scripts that provides mail order services only.
In addition to Express Scripts’ transparent efforts to limit patient choice and steer patients towards its wholly-owned pharmacy, the new TRICARE contract contains unreasonably low rates that are below pharmacists’ acquisition cost and/or otherwise unsustainable for both brand and generic prescription drugs. Express Scripts is, in effect, forcing providers who wish to continue serving TRICARE patients to operate at a guaranteed loss. This shifts the insurance risk from TRICARE and/or Express Scripts to the providers. We note that the terms and conditions of Express Scripts 2023 TRICARE contract are so onerous and unconscionable that many of the nation’s largest Pharmacy Services Administrative Organizations (“PSAOs”), which are large cooperative organizations that negotiate contracts with PBMs on behalf of many pharmacies and oncology groups, did not agree to their terms.
Here are just a few quotes from pharmacists about the contract and Express Scripts:
- “We are being kicked out as of October 24th, I believe. The rates “offered” would be well below our cost. Criminal to say the least. The greed of the PBMs continues to spiral out of control.”
- “Some of our favorite patients are veterans. Tough decision to turn down contract. But had no choice. We cannot fill every prescription way below cost. Patients are coming in tearfully hoping the letter is wrong. ESI getting billions to force this move to substandard care.”
- “I’ve posted before, but I take care of 50 TRICARE members. Total profit for 2022 (-$717.59). We cannot stay in business with reimbursement like this. Express Scripts is getting richer by the script filled.”
- “Left ESI years ago for below cost reimbursement. They said – verbatim – ’Sue us. We have more lawyers.’”
The Express Scripts game plan, which has been empowered by TRICARE, is clear:
- Narrow down the network, specifically excluding the most productive providers, especially those dispensing expensive specialty drugs.
- Force pharmacies that stay in the network to accept reimbursement rates well below drug acquisition costs. This is very profitable to Express Scripts until these pharmacy providers voluntarily drop out of the network.
- Fill as many prescriptions as possible through Express Scripts’ Accredo mail order pharmacies.
As a result of these unconscionable reimbursement terms, and Express Scripts’ actual and de facto termination of providers unwilling to accept them, 15,000+ providers from across the nation, including a substantial percentage of community oncology and urology providers, will no longer be able to serve TRICARE Military beneficiaries effective October 24, 2022. Express Scripts is more than happy to fill this access void with their mail order facilities.
The problem is that we have countless horror stories[5] documenting that patients with cancer and other serious diseases face delays, higher costs, and denials when subjected to receiving their medications through the mail. Additionally, payers experience higher costs from waste as a lack of coordination between providers and PBMs, resulting in PBMs continuing to mail medications when the drug dosage or even the medication has been changed.
Consider the following stories we received from patients and practices in recent weeks typical of dealing with Express Scripts empowered by TRICARE:
- “We have a patient that it took over 3 weeks to get her oral medication. It was sent to our in-house pharmacy on 1/24/2022. That same day we tried to process the script and got a rejection from Tricare. We sent the script out to Accredo on 1/24/2022. On 2/3/2022 patient had not heard from Accredo and asked if I would call to check the status. When I called Accredo they stated they would have to set up a shipping time with the patient. On 2/7/2022 Patient had not received a call from Accredo so she then called to see if they can ship out her meds. Patient did not receive her medication until 2/9/2022.” Huntersville, North Carolina
- “We have had a very recent case where the VA missed diagnosing the patient’s prostate cancer for 2 YEARS!!! Now, the patient’s disease is metastatic! He is having to go through pain, poor quality of life, and mental anguish concerning survival and now, on top of that, a lot of red tape and having to wait to get his medication approved and dispensed. He was also told he would have to have a 3-month supply when he isn’t even sure if in his advanced stage he will be able to tolerate the drug. That is waste! My patient has no one to call and speak with about the medication except his physician’s office. When he has called the specialty pharmacy, he must sit and wait on the phone, gets transferred several times and sometimes doesn’t ever get to speak to a live person. He prefers to get his prescriptions from his physician, but he was told he HAD to receive meds from Express Scripts/ Accredo or the insurance would not pay anything towards his medication.” Nashville, Tennessee
- “Since TRICARE dropped our cancer pharmacy ‘before contract end’ without warning the pharmacy, [my wife’s] refill at the Oncology Pharmacy was denied. She had no pills left to complete a 21-day treatment plan protocol and no way to get a refill in time. No other TRICARE Network Pharmacy in our area carried that medication. Luckily, our [Oncology Pharmacist] was able to request a one-time TRICARE override so that the treatment protocol would not be interrupted. Otherwise, I would be required to pay full price and file a claim to TRICARE who would have given me pennies back on that cost.” Capt, US Army, Retired, 22+ years, 2 Combat Tours Vietnam, Huntsville, Alabama
DHA and Express Scripts are providing second-class health care services to our nation’s Military.
The complete lack of review by TRICARE of Express Scripts’ administration of the TRICARE pharmacy benefit has allowed it to run roughshod over our nation’s Military and their families, severely restricting Military access to the pharmacy provider of their choice. This creates access problems for Military in areas where Express Scripts is creating pharmacy “deserts” and is forcing Military to get their drugs not from their local provider of choice, but from a faceless Express Scripts via the mail. There are numerous problems associated with requiring TRICARE Military beneficiaries to fill their prescriptions through Accredo mail order including, but not limited to: (a) delays in receiving their drugs, including life-saving medications; (b) errors in dispensing not seen with local pharmacy providers, who routinely coordinate with local physicians; (c) insufficient and dangerous delivery practices via the mail; (d) poor communication; (e) medication waste, and (f) administrative red tape.
Especially in the case of cancer, access to site-of-care delivery of drugs prevents waste as, in the common event that cancer treatments need to be adjusted, oncologists and urologists are able to “hold” drug therapies quicker and more efficiently, avoiding unnecessary refills of the wrong cancer medication that are otherwise commonplace in mail order pharmacies. Site-of-care delivery of medications also promotes better communication and medication adherence between TRICARE Military patients with cancer and their providers. Rather than the cryptic and untimely responses received by patients from mail order pharmacies like Accredo, practices have physicians and pharmacists under one roof who are available to address the concerns of patients and ensure they are adhering to their drug regimens.
As recognized by the U.S. Department of Veterans Affairs, in many cases, TRICARE Military beneficiaries developed cancer in connection with their service to our nation, such as the burn pits used to dispose of waste at military bases in the Middle East.[6] As the Secretary for Veterans Affairs, Denis McDonough, has stated “veterans who suffer from rare forms of respiratory cancers associated with their service deserve the very best America has to offer”.[7] The Military’s service to our nation should be recognized with the highest-quality, most accessible, and affordable cancer care, not the second class, and thoughtless, disservice being provided by Express Scripts.
Express Scripts as the contractor for DHA is violating the legal rights of TRICARE Military beneficiaries.
DHA and Express Scripts are discriminating against TRICARE Military patients with cancer by forcing them to receive their potentially life-saving treatments and medications through Express Scripts’ Accredo mail order pharmacy. Section 504 of the Rehabilitation Act states that “no otherwise qualified individual with handicaps in the United States … shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency. . .” 29 U.S.C. § 794(a). A person is ‘handicapped’ or ‘disabled’ under the Act if they have physical or mental impairments that substantially limit one or more major life activities. Having cancer is considered a disability under the Act. See Section 504 Fact Sheet.[8]
The Rehabilitation Act guarantees Military patients with cancer the right to receive the full benefits of their federally funded health care through TRICARE, and to have meaningful access to a provider of their choice. Express Scripts’ termination of community oncology practices from the TRICARE networks has the disparate impact of discriminating against disabled patients with cancer, in that Express Scripts is precluding these patients from receiving meaningful access to cancer care from the provider of their choice. TRICARE Military patients with cancer are being denied the full and equal benefit of the TRICARE pharmacy benefit by being forced to use Accredo’s mail order services to be insured.
Following Express Scripts’ termination of thousands of providers across the nation, TRICARE Military beneficiaries will no longer have the ability to receive coverage for care received from the provider of their choice. Nor do the TRICARE plan benefits provide a feasible alternative for patients with cancer, as care received from non-network providers comes with substantial cost-sharing obligations from the patient. Specifically, if a TRICARE patient with cancer wished to continue receiving care from an out-of-network community oncology practice, they would be forced to pay the full price of the prescription drug and then seek reimbursement from TRICARE, subject to their deductibles and cost-shares.[9] By way of example only, TRICARE Prime beneficiaries have cost sharing obligations of 50 percent of the point of service cost for brand name medications.[10] For specialty brand name cancer drugs, in addition to being forced to pay the full price at the point of sale, a net cost sharing of 50 percent of the total cost after seeking reimbursement from TRICARE amounts to substantial out-of-pocket costs.
Furthermore, although the specific terms of the contract between DHA and Express Scripts are not available to the public, the Solicitation, Offer, and Award related to the most recent TRICARE contracting process indicates that any PBM who received the award must establish and maintain a network of pharmacy providers that enables 90 percent of TRICARE beneficiaries to receive care from a provider within 15 minutes driving time and to maintain a pharmacy network of not fewer than 35,000 retail pharmacies.[11] Significantly, the Solicitation, Offer and Award – which, again, only two private entities provided proposals for – expressly excludes pharmacies providing services solely through internet or mail order pharmacies, such as Accredo, from this calculus.[12]
TRICARE also requires that beneficiaries have access to a sufficient geographic distribution of providers from whom they can receive treatment and medications. See 32 C.F.R. 199.17(p)(5). DHA’s and Express Scripts’ termination and non-renewal of 15,000+ providers across the nation, including a sizeable portion of the nation’s community oncology providers, places into question whether Express Scripts is complying with its contractual and statutory obligations. The lack of oversight over Express Scripts’ provider network is precluding TRICARE Military patients with cancer from having access to a sufficient geographic distribution of providers and violating TRICARE cancer patients’ rights to an adequate network of providers with the capabilities to address their health care needs.
Express Scripts’ termination and non-renewal of significant portions of the nation’s community oncology providers and funneling of TRICARE Military patients with cancer to its own Accredo mail order pharmacy makes the lack of access particularly pronounced for TRICARE cancer patients, who cannot receive their specialty cancer medications from any typical retail pharmacy. Out of the 77,000 pharmacies in the United States only about 1,200 are accredited as specialty pharmacies or are community oncologists trained in cancer care.[13] TRICARE should consider these facts in its network adequacy analysis. In effect, Express Scripts is forcing countless members of the Military and their families to use a single mail order pharmacy for all of their cancer medication needs.
Further, by terminating providers or reimbursing providers at or below-acquisition cost thereby constructively terminating them, Express Scripts is violating the legal and contractual rights of TRICARE Military beneficiaries to receive life-saving treatments and therapies from the provider of their choice, interfering with TRICARE patients’ relationships with their providers, and engaging in unlawful anti-competitive conduct.
TRICARE Military beneficiaries should, at a minimum, be afforded the same level of care provided to Americans under other federal health care programs, such as Medicare Part D.
We note that the Medicare Part D program requires that plan sponsors, and PBMs like Express Scripts, offer terms and conditions that are reasonable and relevant, including reasonable reimbursement terms for specialty cancer medications, to ensure that Medicare beneficiaries have access to quality and affordable care. See 42 U.S.C. § 1395w-104(b), et seq.; Medicare Prescription Drug Benefit Manual, Chapter 5, Section 50.3, et al.; 42 C.F.R. § 423.505(b)(18). Similarly, the Medicare program provides for “protected classes” of prescription medications, one of which is antineoplastic cancer drugs. 42 U.S.C. 1395w-104(b)(3)(G). However, this law, for the benefit of Medicare patients, does not appear to apply to TRICARE.
Protections in the Medicare program help to ensure that beneficiaries have access to a wide range of providers and can receive high quality and affordable care. There is no justifiable reason why TRICARE Military beneficiaries suffering from cancer and other serious diseases should be denied the same treatment and benefits as our nation’s elderly and disabled.
This is an urgent matter that DHA must address immediately. TRICARE cannot allow Express Scripts to adversely impact the lives and well-being of our Military and their families who deserve the very best medical care, which they are not getting from Express Scripts.
Sincerly,
Letter to Defense Health Agency on TRICARE PBM Concerns
COMMUNITY ONCOLOGY ALLIANCE
Innovating and Advocating for Community Cancer Care
1225 New York Ave. NW, Suite 600
Washington, DC 20005
(202) 729-8147 | communityoncology.org
October 20, 2022
Ms. Seileen Mullen
Acting Assistant Secretary of Defense for Health Affairs
Defense Health Agency
7700 Arlington Boulevard
Suite 5101
Falls Church, VA 22042-5101
Dear Ms. Mullen:
On behalf of the Board of Directors of the Community Oncology Alliance (COA), we are writing this letter to express outrage at the shameful treatment of active military and veterans (collectively referred to herein as “Military”) at the hands of the pharmacy benefit manager (“PBM”) Express Scripts, which has been empowered by TRICARE. In early 2020, we sent a letter to then Assistant Secretary McCaffery on the disgraceful treatment of our Military and their families by TRICARE. Unfortunately, as we detail in this letter, the situation has gone from bad to worse at the hands of the PBM. You must immediately address this terrible situation our Military and their families with cancer and other serious diseases face. They deserve the very best medical care, not cut-rate care at the hands of some profit-seeking PBM.
By way of background, COA is an organization dedicated to advocating for the complex care and access needs of patients with cancer and the community oncology practices that serve them. COA is the only non-profit organization in the United States dedicated solely to independent community oncology practices, which serve the majority of Americans receiving treatment for cancer. Since its grassroots founding close to 20 years ago, COA’s mission has been to ensure that patients with cancer receive quality, affordable, and accessible cancer care in their own communities where they live and work, regardless of their racial, ethnic, demographic, or socioeconomic status.
Background
As you know, TRICARE is the Department of Defense (“DoD”) health care program administered by the Defense Health Agency (“DHA”) by means of the Military Health System for approximately 9.5 million Military and their families. Part of the TRICARE health care program is the TRICARE Pharmacy Benefits Program, authorized under 10 U.S.C. § 1074g and 32 C.F.R. 199.21. The TRICARE Pharmacy Benefits Program, in theory, enables Military and their families to receive pharmacy benefits from not only military treatment facilities, but also a network of civilian providers and pharmacies, including independent community oncology practices, located in their own communities.
DHA outsources the administration of the TRICARE Pharmacy Benefits Program to a private corporation, currently the PBM Express Scripts, which is the second largest PBM in the nation by market share, managing approximately 25 percent of all covered prescription drug claims.[1] Express Scripts, which is owned by the insurer Cigna, owns a mail order retail pharmacy[2] and Accredo Health Inc., which operates Accredo Specialty Pharmacy.[3]
Earlier this year, DHA awarded Express Scripts a multi-year contract to serve as the sole PBM to administer the pharmacy benefit offered to TRICARE beneficiaries after a bidding process that involved only two proposals submitted.[4] In order to participate as a network provider in the TRICARE Pharmacy Benefits Program, providers must first have a contract with Express Scripts.
Express Scripts is out to maximize profits from the DHA contract; not provide the highest-quality health care to the Military.
In its role as the PBM for the TRICARE program, in late July 2022, Express Scripts sent providers across the nation a new TRICARE contract/network agreement for contract year 2023. Express Scripts required providers to execute and return the contract within 15 days of receipt, otherwise the providers were deemed to have declined participation for the entirety of contract year 2023. We note that in substantial feedback from retail pharmacists, as well as from oncology and urology practices with dispensing facilities or associated specialty pharmacies, it is clear that Express Scripts did everything to hinder providers from responding. In many cases the network agreement was faxed to providers, when typically emailed, and the time frame for response was unreasonably short.
In many cases, Express Scripts has sent letters directly to Military personnel informing them that as of October 24, 2022, they will no longer be able to get their medications from their regular pharmacy provider. That includes Military patients with cancer who typically receive their oral chemotherapy and related drugs at the point-of-care from their oncologists. We have received numerous reports of Military patients confused and dismayed by this letter and are contacting their cancer care providers for assistance. In these same letters, Express Scripts is directing TRICARE Military patients with cancer to Accredo Health Group, which is a specialty pharmacy owned by Express Scripts that provides mail order services only.
In addition to Express Scripts’ transparent efforts to limit patient choice and steer patients towards its wholly-owned pharmacy, the new TRICARE contract contains unreasonably low rates that are below pharmacists’ acquisition cost and/or otherwise unsustainable for both brand and generic prescription drugs. Express Scripts is, in effect, forcing providers who wish to continue serving TRICARE patients to operate at a guaranteed loss. This shifts the insurance risk from TRICARE and/or Express Scripts to the providers. We note that the terms and conditions of Express Scripts 2023 TRICARE contract are so onerous and unconscionable that many of the nation’s largest Pharmacy Services Administrative Organizations (“PSAOs”), which are large cooperative organizations that negotiate contracts with PBMs on behalf of many pharmacies and oncology groups, did not agree to their terms.
Here are just a few quotes from pharmacists about the contract and Express Scripts:
The Express Scripts game plan, which has been empowered by TRICARE, is clear:
As a result of these unconscionable reimbursement terms, and Express Scripts’ actual and de facto termination of providers unwilling to accept them, 15,000+ providers from across the nation, including a substantial percentage of community oncology and urology providers, will no longer be able to serve TRICARE Military beneficiaries effective October 24, 2022. Express Scripts is more than happy to fill this access void with their mail order facilities.
The problem is that we have countless horror stories[5] documenting that patients with cancer and other serious diseases face delays, higher costs, and denials when subjected to receiving their medications through the mail. Additionally, payers experience higher costs from waste as a lack of coordination between providers and PBMs, resulting in PBMs continuing to mail medications when the drug dosage or even the medication has been changed.
Consider the following stories we received from patients and practices in recent weeks typical of dealing with Express Scripts empowered by TRICARE:
DHA and Express Scripts are providing second-class health care services to our nation’s Military.
The complete lack of review by TRICARE of Express Scripts’ administration of the TRICARE pharmacy benefit has allowed it to run roughshod over our nation’s Military and their families, severely restricting Military access to the pharmacy provider of their choice. This creates access problems for Military in areas where Express Scripts is creating pharmacy “deserts” and is forcing Military to get their drugs not from their local provider of choice, but from a faceless Express Scripts via the mail. There are numerous problems associated with requiring TRICARE Military beneficiaries to fill their prescriptions through Accredo mail order including, but not limited to: (a) delays in receiving their drugs, including life-saving medications; (b) errors in dispensing not seen with local pharmacy providers, who routinely coordinate with local physicians; (c) insufficient and dangerous delivery practices via the mail; (d) poor communication; (e) medication waste, and (f) administrative red tape.
Especially in the case of cancer, access to site-of-care delivery of drugs prevents waste as, in the common event that cancer treatments need to be adjusted, oncologists and urologists are able to “hold” drug therapies quicker and more efficiently, avoiding unnecessary refills of the wrong cancer medication that are otherwise commonplace in mail order pharmacies. Site-of-care delivery of medications also promotes better communication and medication adherence between TRICARE Military patients with cancer and their providers. Rather than the cryptic and untimely responses received by patients from mail order pharmacies like Accredo, practices have physicians and pharmacists under one roof who are available to address the concerns of patients and ensure they are adhering to their drug regimens.
As recognized by the U.S. Department of Veterans Affairs, in many cases, TRICARE Military beneficiaries developed cancer in connection with their service to our nation, such as the burn pits used to dispose of waste at military bases in the Middle East.[6] As the Secretary for Veterans Affairs, Denis McDonough, has stated “veterans who suffer from rare forms of respiratory cancers associated with their service deserve the very best America has to offer”.[7] The Military’s service to our nation should be recognized with the highest-quality, most accessible, and affordable cancer care, not the second class, and thoughtless, disservice being provided by Express Scripts.
Express Scripts as the contractor for DHA is violating the legal rights of TRICARE Military beneficiaries.
DHA and Express Scripts are discriminating against TRICARE Military patients with cancer by forcing them to receive their potentially life-saving treatments and medications through Express Scripts’ Accredo mail order pharmacy. Section 504 of the Rehabilitation Act states that “no otherwise qualified individual with handicaps in the United States … shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency. . .” 29 U.S.C. § 794(a). A person is ‘handicapped’ or ‘disabled’ under the Act if they have physical or mental impairments that substantially limit one or more major life activities. Having cancer is considered a disability under the Act. See Section 504 Fact Sheet.[8]
The Rehabilitation Act guarantees Military patients with cancer the right to receive the full benefits of their federally funded health care through TRICARE, and to have meaningful access to a provider of their choice. Express Scripts’ termination of community oncology practices from the TRICARE networks has the disparate impact of discriminating against disabled patients with cancer, in that Express Scripts is precluding these patients from receiving meaningful access to cancer care from the provider of their choice. TRICARE Military patients with cancer are being denied the full and equal benefit of the TRICARE pharmacy benefit by being forced to use Accredo’s mail order services to be insured.
Following Express Scripts’ termination of thousands of providers across the nation, TRICARE Military beneficiaries will no longer have the ability to receive coverage for care received from the provider of their choice. Nor do the TRICARE plan benefits provide a feasible alternative for patients with cancer, as care received from non-network providers comes with substantial cost-sharing obligations from the patient. Specifically, if a TRICARE patient with cancer wished to continue receiving care from an out-of-network community oncology practice, they would be forced to pay the full price of the prescription drug and then seek reimbursement from TRICARE, subject to their deductibles and cost-shares.[9] By way of example only, TRICARE Prime beneficiaries have cost sharing obligations of 50 percent of the point of service cost for brand name medications.[10] For specialty brand name cancer drugs, in addition to being forced to pay the full price at the point of sale, a net cost sharing of 50 percent of the total cost after seeking reimbursement from TRICARE amounts to substantial out-of-pocket costs.
Furthermore, although the specific terms of the contract between DHA and Express Scripts are not available to the public, the Solicitation, Offer, and Award related to the most recent TRICARE contracting process indicates that any PBM who received the award must establish and maintain a network of pharmacy providers that enables 90 percent of TRICARE beneficiaries to receive care from a provider within 15 minutes driving time and to maintain a pharmacy network of not fewer than 35,000 retail pharmacies.[11] Significantly, the Solicitation, Offer and Award – which, again, only two private entities provided proposals for – expressly excludes pharmacies providing services solely through internet or mail order pharmacies, such as Accredo, from this calculus.[12]
TRICARE also requires that beneficiaries have access to a sufficient geographic distribution of providers from whom they can receive treatment and medications. See 32 C.F.R. 199.17(p)(5). DHA’s and Express Scripts’ termination and non-renewal of 15,000+ providers across the nation, including a sizeable portion of the nation’s community oncology providers, places into question whether Express Scripts is complying with its contractual and statutory obligations. The lack of oversight over Express Scripts’ provider network is precluding TRICARE Military patients with cancer from having access to a sufficient geographic distribution of providers and violating TRICARE cancer patients’ rights to an adequate network of providers with the capabilities to address their health care needs.
Express Scripts’ termination and non-renewal of significant portions of the nation’s community oncology providers and funneling of TRICARE Military patients with cancer to its own Accredo mail order pharmacy makes the lack of access particularly pronounced for TRICARE cancer patients, who cannot receive their specialty cancer medications from any typical retail pharmacy. Out of the 77,000 pharmacies in the United States only about 1,200 are accredited as specialty pharmacies or are community oncologists trained in cancer care.[13] TRICARE should consider these facts in its network adequacy analysis. In effect, Express Scripts is forcing countless members of the Military and their families to use a single mail order pharmacy for all of their cancer medication needs.
Further, by terminating providers or reimbursing providers at or below-acquisition cost thereby constructively terminating them, Express Scripts is violating the legal and contractual rights of TRICARE Military beneficiaries to receive life-saving treatments and therapies from the provider of their choice, interfering with TRICARE patients’ relationships with their providers, and engaging in unlawful anti-competitive conduct.
TRICARE Military beneficiaries should, at a minimum, be afforded the same level of care provided to Americans under other federal health care programs, such as Medicare Part D.
We note that the Medicare Part D program requires that plan sponsors, and PBMs like Express Scripts, offer terms and conditions that are reasonable and relevant, including reasonable reimbursement terms for specialty cancer medications, to ensure that Medicare beneficiaries have access to quality and affordable care. See 42 U.S.C. § 1395w-104(b), et seq.; Medicare Prescription Drug Benefit Manual, Chapter 5, Section 50.3, et al.; 42 C.F.R. § 423.505(b)(18). Similarly, the Medicare program provides for “protected classes” of prescription medications, one of which is antineoplastic cancer drugs. 42 U.S.C. 1395w-104(b)(3)(G). However, this law, for the benefit of Medicare patients, does not appear to apply to TRICARE.
Protections in the Medicare program help to ensure that beneficiaries have access to a wide range of providers and can receive high quality and affordable care. There is no justifiable reason why TRICARE Military beneficiaries suffering from cancer and other serious diseases should be denied the same treatment and benefits as our nation’s elderly and disabled.
This is an urgent matter that DHA must address immediately. TRICARE cannot allow Express Scripts to adversely impact the lives and well-being of our Military and their families who deserve the very best medical care, which they are not getting from Express Scripts.
Sincerly,
Kashyap Patel, MD
President
Ted Okon
Executive Director
CC:
Hon. Jack Reed, Chairman, Senate Committee on Armed Services
Hon. James Inhofe, Ranking Member, Senate Committee on Armed Services
Hon. Adam Smith, Chair, House Armed Services Committee
Hon. Mike Rogers, Ranking Member, House Armed Services Committee
[1] https://www.beckershospitalreview.com/pharmacy/pbms-ranked-by-market-share-cvs-caremark-is-no-1.html
[2] https://www.express-scripts.com/rx
[3] https://www.express-scripts.com/corporate/articles/accredo-specialty-pharmacy-explained
[4] https://www.defense.gov/News/Contracts/Contract/Article/2721522/
[5] https://communityoncology.org/category/reports-and-publications/pbm-horror-stories/
[6] https://www.publichealth.va.gov/exposures/burnpits/
[7] https://www.militarytimes.com/news/burn-pits/2022/04/25/nine-respiratory-cancers-added-to-list-of-illnesses-presumed-caused-by-burn-pit-smoke/
[8] https://www.hhs.gov/sites/default/files/ocr/civilrights/resources/factsheets/504.pdf
[9] https://www.tricare.mil/nonnetworkpharmacy
[10] https://tricare.mil/Costs/PrescriptionCosts
[11] https://sam.gov/opp/451e1e97be614d5d994e5673fe89f50d/view
[12] https://sam.gov/opp/451e1e97be614d5d994e5673fe89f50d/view
[13] https://www.pharmacytimes.com/view/the-evolution-of-the-oncology-pharmacy
Letter to Defense Health Agency on TRICARE PBM Concerns
COMMUNITY ONCOLOGY ALLIANCE
Innovating and Advocating for Community Cancer Care
1225 New York Ave. NW, Suite 600
Washington, DC 20005
(202) 729-8147 | communityoncology.org
October 20, 2022
Ms. Seileen Mullen
Acting Assistant Secretary of Defense for Health Affairs
Defense Health Agency
7700 Arlington Boulevard
Suite 5101
Falls Church, VA 22042-5101
Dear Ms. Mullen:
On behalf of the Board of Directors of the Community Oncology Alliance (COA), we are writing this letter to express outrage at the shameful treatment of active military and veterans (collectively referred to herein as “Military”) at the hands of the pharmacy benefit manager (“PBM”) Express Scripts, which has been empowered by TRICARE. In early 2020, we sent a letter to then Assistant Secretary McCaffery on the disgraceful treatment of our Military and their families by TRICARE. Unfortunately, as we detail in this letter, the situation has gone from bad to worse at the hands of the PBM. You must immediately address this terrible situation our Military and their families with cancer and other serious diseases face. They deserve the very best medical care, not cut-rate care at the hands of some profit-seeking PBM.
By way of background, COA is an organization dedicated to advocating for the complex care and access needs of patients with cancer and the community oncology practices that serve them. COA is the only non-profit organization in the United States dedicated solely to independent community oncology practices, which serve the majority of Americans receiving treatment for cancer. Since its grassroots founding close to 20 years ago, COA’s mission has been to ensure that patients with cancer receive quality, affordable, and accessible cancer care in their own communities where they live and work, regardless of their racial, ethnic, demographic, or socioeconomic status.
Background
As you know, TRICARE is the Department of Defense (“DoD”) health care program administered by the Defense Health Agency (“DHA”) by means of the Military Health System for approximately 9.5 million Military and their families. Part of the TRICARE health care program is the TRICARE Pharmacy Benefits Program, authorized under 10 U.S.C. § 1074g and 32 C.F.R. 199.21. The TRICARE Pharmacy Benefits Program, in theory, enables Military and their families to receive pharmacy benefits from not only military treatment facilities, but also a network of civilian providers and pharmacies, including independent community oncology practices, located in their own communities.
DHA outsources the administration of the TRICARE Pharmacy Benefits Program to a private corporation, currently the PBM Express Scripts, which is the second largest PBM in the nation by market share, managing approximately 25 percent of all covered prescription drug claims.[1] Express Scripts, which is owned by the insurer Cigna, owns a mail order retail pharmacy[2] and Accredo Health Inc., which operates Accredo Specialty Pharmacy.[3]
Earlier this year, DHA awarded Express Scripts a multi-year contract to serve as the sole PBM to administer the pharmacy benefit offered to TRICARE beneficiaries after a bidding process that involved only two proposals submitted.[4] In order to participate as a network provider in the TRICARE Pharmacy Benefits Program, providers must first have a contract with Express Scripts.
Express Scripts is out to maximize profits from the DHA contract; not provide the highest-quality health care to the Military.
In its role as the PBM for the TRICARE program, in late July 2022, Express Scripts sent providers across the nation a new TRICARE contract/network agreement for contract year 2023. Express Scripts required providers to execute and return the contract within 15 days of receipt, otherwise the providers were deemed to have declined participation for the entirety of contract year 2023. We note that in substantial feedback from retail pharmacists, as well as from oncology and urology practices with dispensing facilities or associated specialty pharmacies, it is clear that Express Scripts did everything to hinder providers from responding. In many cases the network agreement was faxed to providers, when typically emailed, and the time frame for response was unreasonably short.
In many cases, Express Scripts has sent letters directly to Military personnel informing them that as of October 24, 2022, they will no longer be able to get their medications from their regular pharmacy provider. That includes Military patients with cancer who typically receive their oral chemotherapy and related drugs at the point-of-care from their oncologists. We have received numerous reports of Military patients confused and dismayed by this letter and are contacting their cancer care providers for assistance. In these same letters, Express Scripts is directing TRICARE Military patients with cancer to Accredo Health Group, which is a specialty pharmacy owned by Express Scripts that provides mail order services only.
In addition to Express Scripts’ transparent efforts to limit patient choice and steer patients towards its wholly-owned pharmacy, the new TRICARE contract contains unreasonably low rates that are below pharmacists’ acquisition cost and/or otherwise unsustainable for both brand and generic prescription drugs. Express Scripts is, in effect, forcing providers who wish to continue serving TRICARE patients to operate at a guaranteed loss. This shifts the insurance risk from TRICARE and/or Express Scripts to the providers. We note that the terms and conditions of Express Scripts 2023 TRICARE contract are so onerous and unconscionable that many of the nation’s largest Pharmacy Services Administrative Organizations (“PSAOs”), which are large cooperative organizations that negotiate contracts with PBMs on behalf of many pharmacies and oncology groups, did not agree to their terms.
Here are just a few quotes from pharmacists about the contract and Express Scripts:
The Express Scripts game plan, which has been empowered by TRICARE, is clear:
As a result of these unconscionable reimbursement terms, and Express Scripts’ actual and de facto termination of providers unwilling to accept them, 15,000+ providers from across the nation, including a substantial percentage of community oncology and urology providers, will no longer be able to serve TRICARE Military beneficiaries effective October 24, 2022. Express Scripts is more than happy to fill this access void with their mail order facilities.
The problem is that we have countless horror stories[5] documenting that patients with cancer and other serious diseases face delays, higher costs, and denials when subjected to receiving their medications through the mail. Additionally, payers experience higher costs from waste as a lack of coordination between providers and PBMs, resulting in PBMs continuing to mail medications when the drug dosage or even the medication has been changed.
Consider the following stories we received from patients and practices in recent weeks typical of dealing with Express Scripts empowered by TRICARE:
DHA and Express Scripts are providing second-class health care services to our nation’s Military.
The complete lack of review by TRICARE of Express Scripts’ administration of the TRICARE pharmacy benefit has allowed it to run roughshod over our nation’s Military and their families, severely restricting Military access to the pharmacy provider of their choice. This creates access problems for Military in areas where Express Scripts is creating pharmacy “deserts” and is forcing Military to get their drugs not from their local provider of choice, but from a faceless Express Scripts via the mail. There are numerous problems associated with requiring TRICARE Military beneficiaries to fill their prescriptions through Accredo mail order including, but not limited to: (a) delays in receiving their drugs, including life-saving medications; (b) errors in dispensing not seen with local pharmacy providers, who routinely coordinate with local physicians; (c) insufficient and dangerous delivery practices via the mail; (d) poor communication; (e) medication waste, and (f) administrative red tape.
Especially in the case of cancer, access to site-of-care delivery of drugs prevents waste as, in the common event that cancer treatments need to be adjusted, oncologists and urologists are able to “hold” drug therapies quicker and more efficiently, avoiding unnecessary refills of the wrong cancer medication that are otherwise commonplace in mail order pharmacies. Site-of-care delivery of medications also promotes better communication and medication adherence between TRICARE Military patients with cancer and their providers. Rather than the cryptic and untimely responses received by patients from mail order pharmacies like Accredo, practices have physicians and pharmacists under one roof who are available to address the concerns of patients and ensure they are adhering to their drug regimens.
As recognized by the U.S. Department of Veterans Affairs, in many cases, TRICARE Military beneficiaries developed cancer in connection with their service to our nation, such as the burn pits used to dispose of waste at military bases in the Middle East.[6] As the Secretary for Veterans Affairs, Denis McDonough, has stated “veterans who suffer from rare forms of respiratory cancers associated with their service deserve the very best America has to offer”.[7] The Military’s service to our nation should be recognized with the highest-quality, most accessible, and affordable cancer care, not the second class, and thoughtless, disservice being provided by Express Scripts.
Express Scripts as the contractor for DHA is violating the legal rights of TRICARE Military beneficiaries.
DHA and Express Scripts are discriminating against TRICARE Military patients with cancer by forcing them to receive their potentially life-saving treatments and medications through Express Scripts’ Accredo mail order pharmacy. Section 504 of the Rehabilitation Act states that “no otherwise qualified individual with handicaps in the United States … shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency. . .” 29 U.S.C. § 794(a). A person is ‘handicapped’ or ‘disabled’ under the Act if they have physical or mental impairments that substantially limit one or more major life activities. Having cancer is considered a disability under the Act. See Section 504 Fact Sheet.[8]
The Rehabilitation Act guarantees Military patients with cancer the right to receive the full benefits of their federally funded health care through TRICARE, and to have meaningful access to a provider of their choice. Express Scripts’ termination of community oncology practices from the TRICARE networks has the disparate impact of discriminating against disabled patients with cancer, in that Express Scripts is precluding these patients from receiving meaningful access to cancer care from the provider of their choice. TRICARE Military patients with cancer are being denied the full and equal benefit of the TRICARE pharmacy benefit by being forced to use Accredo’s mail order services to be insured.
Following Express Scripts’ termination of thousands of providers across the nation, TRICARE Military beneficiaries will no longer have the ability to receive coverage for care received from the provider of their choice. Nor do the TRICARE plan benefits provide a feasible alternative for patients with cancer, as care received from non-network providers comes with substantial cost-sharing obligations from the patient. Specifically, if a TRICARE patient with cancer wished to continue receiving care from an out-of-network community oncology practice, they would be forced to pay the full price of the prescription drug and then seek reimbursement from TRICARE, subject to their deductibles and cost-shares.[9] By way of example only, TRICARE Prime beneficiaries have cost sharing obligations of 50 percent of the point of service cost for brand name medications.[10] For specialty brand name cancer drugs, in addition to being forced to pay the full price at the point of sale, a net cost sharing of 50 percent of the total cost after seeking reimbursement from TRICARE amounts to substantial out-of-pocket costs.
Furthermore, although the specific terms of the contract between DHA and Express Scripts are not available to the public, the Solicitation, Offer, and Award related to the most recent TRICARE contracting process indicates that any PBM who received the award must establish and maintain a network of pharmacy providers that enables 90 percent of TRICARE beneficiaries to receive care from a provider within 15 minutes driving time and to maintain a pharmacy network of not fewer than 35,000 retail pharmacies.[11] Significantly, the Solicitation, Offer and Award – which, again, only two private entities provided proposals for – expressly excludes pharmacies providing services solely through internet or mail order pharmacies, such as Accredo, from this calculus.[12]
TRICARE also requires that beneficiaries have access to a sufficient geographic distribution of providers from whom they can receive treatment and medications. See 32 C.F.R. 199.17(p)(5). DHA’s and Express Scripts’ termination and non-renewal of 15,000+ providers across the nation, including a sizeable portion of the nation’s community oncology providers, places into question whether Express Scripts is complying with its contractual and statutory obligations. The lack of oversight over Express Scripts’ provider network is precluding TRICARE Military patients with cancer from having access to a sufficient geographic distribution of providers and violating TRICARE cancer patients’ rights to an adequate network of providers with the capabilities to address their health care needs.
Express Scripts’ termination and non-renewal of significant portions of the nation’s community oncology providers and funneling of TRICARE Military patients with cancer to its own Accredo mail order pharmacy makes the lack of access particularly pronounced for TRICARE cancer patients, who cannot receive their specialty cancer medications from any typical retail pharmacy. Out of the 77,000 pharmacies in the United States only about 1,200 are accredited as specialty pharmacies or are community oncologists trained in cancer care.[13] TRICARE should consider these facts in its network adequacy analysis. In effect, Express Scripts is forcing countless members of the Military and their families to use a single mail order pharmacy for all of their cancer medication needs.
Further, by terminating providers or reimbursing providers at or below-acquisition cost thereby constructively terminating them, Express Scripts is violating the legal and contractual rights of TRICARE Military beneficiaries to receive life-saving treatments and therapies from the provider of their choice, interfering with TRICARE patients’ relationships with their providers, and engaging in unlawful anti-competitive conduct.
TRICARE Military beneficiaries should, at a minimum, be afforded the same level of care provided to Americans under other federal health care programs, such as Medicare Part D.
We note that the Medicare Part D program requires that plan sponsors, and PBMs like Express Scripts, offer terms and conditions that are reasonable and relevant, including reasonable reimbursement terms for specialty cancer medications, to ensure that Medicare beneficiaries have access to quality and affordable care. See 42 U.S.C. § 1395w-104(b), et seq.; Medicare Prescription Drug Benefit Manual, Chapter 5, Section 50.3, et al.; 42 C.F.R. § 423.505(b)(18). Similarly, the Medicare program provides for “protected classes” of prescription medications, one of which is antineoplastic cancer drugs. 42 U.S.C. 1395w-104(b)(3)(G). However, this law, for the benefit of Medicare patients, does not appear to apply to TRICARE.
Protections in the Medicare program help to ensure that beneficiaries have access to a wide range of providers and can receive high quality and affordable care. There is no justifiable reason why TRICARE Military beneficiaries suffering from cancer and other serious diseases should be denied the same treatment and benefits as our nation’s elderly and disabled.
This is an urgent matter that DHA must address immediately. TRICARE cannot allow Express Scripts to adversely impact the lives and well-being of our Military and their families who deserve the very best medical care, which they are not getting from Express Scripts.
Sincerly,
Kashyap Patel, MD
President
Ted Okon
Executive Director
CC:
Hon. Jack Reed, Chairman, Senate Committee on Armed Services
Hon. James Inhofe, Ranking Member, Senate Committee on Armed Services
Hon. Adam Smith, Chair, House Armed Services Committee
Hon. Mike Rogers, Ranking Member, House Armed Services Committee
[1] https://www.beckershospitalreview.com/pharmacy/pbms-ranked-by-market-share-cvs-caremark-is-no-1.html
[2] https://www.express-scripts.com/rx
[3] https://www.express-scripts.com/corporate/articles/accredo-specialty-pharmacy-explained
[4] https://www.defense.gov/News/Contracts/Contract/Article/2721522/
[5] https://communityoncology.org/category/reports-and-publications/pbm-horror-stories/
[6] https://www.publichealth.va.gov/exposures/burnpits/
[7] https://www.militarytimes.com/news/burn-pits/2022/04/25/nine-respiratory-cancers-added-to-list-of-illnesses-presumed-caused-by-burn-pit-smoke/
[8] https://www.hhs.gov/sites/default/files/ocr/civilrights/resources/factsheets/504.pdf
[9] https://www.tricare.mil/nonnetworkpharmacy
[10] https://tricare.mil/Costs/PrescriptionCosts
[11] https://sam.gov/opp/451e1e97be614d5d994e5673fe89f50d/view
[12] https://sam.gov/opp/451e1e97be614d5d994e5673fe89f50d/view
[13] https://www.pharmacytimes.com/view/the-evolution-of-the-oncology-pharmacy