My Patient Rights can help guide you in resolving issues so you can get the health care you deserve.
By: Carmen George
The Fresno Bee
August 2, 2019
Norma Smith was diagnosed with stage-three cancer in December.
There are four stages to cancer, and number three means the cancer – in Smith’s case, a blood cancer, multiple myeloma – had spread extensively.
As it attacked cells in Smith’s bone marrow, an important part of the immune system, the 62-year-old was eager to start treatments to stop it. What happened instead in the months that followed was Smith’s pharmacy denying and delaying chemotherapy treatments prescribed by Smith’s medical doctor over and over again.
Smith, a retired special education teacher in Fresno, and her husband, Rodney, a retired school psychologist and director of special education, consider their “very expensive” health insurance coverage to be “the best.”
But that insurance didn’t ensure Smith would get the drugs she needed when facing CVS Specialty Pharmacy – the pharmacy their insurance required them to use. Cancer drugs prescribed by Smith’s oncologist were denied because they didn’t follow the standard protocol sequence of medications that Smith’s pharmacy benefit manager, CVS Caremark, had in their guidelines.
That means pharmacy benefit managers have the authority to trump a doctor’s medical judgment without seeing patients or knowing their full medical history, and without accountability for the consequences of what happens to sick people.
Smith is among thousands of documented cases of patients who have been denied needed medications in this way. Doctors and other medical professionals say these denials are only expected to get worse as the country’s largest health insurance companies and pharmacies are increasingly joining forces.
These elusive middlemen with the authority to deny doctors’ prescriptions based on company policies are sometimes referred to as PBMs for short. Doctors and patients believe they are causing life-threatening problems for people like Smith.
The role PBMs play in health care is being examined in some proposed legislation related to costly pharmaceutical drugs and patients’ access to medications.
“Every time we want to make a change (to medications), we have to go through this whole process where someone – and we don’t know who it is – someone has the right and authority to override my judgment and what the patient needs,” said Smith’s oncologist, Dr. Ravi Rao, of cCare Cancer Center in Fresno, “and that person is functioning without us having a recourse to it. He can do whatever he wants, he or she, and I can’t call them and say, ‘Hey, by the way, what you’re saying doesn’t make sense,’ because they are hiding behind all these processes, and we are struggling here.”
CVS Caremark denied cancer medications prescribed by Rao for Smith several times over the past seven months. Each denial resulted in challenging delays. In the worst instance, Smith waited nearly two months for a cancer drug her doctor ordered.
Rao said Smith’s health had deteriorated so much by the spring that she could have easily died. At one point she was nearly bedridden, using a walker to get to and from the bathroom.
“This whole process has been extremely painful,” Rao said, “extremely traumatic for the patient and her family.”
Smith’s story is “an example of how bad things can get” for cancer patients who require different medications than what pharmacy benefit managers consider standard protocol.
“You are making us practice medicine based on some policy or guideline written by someone else,” Rao said. “So if you are a patient who has something slightly unusual – and Norma is very unusual in her disease – if I say, ‘Hmm, you know what, this disease is strange. We cannot follow the textbook guidelines that are laid down by any agency,’ I’m out of luck.”
It wasn’t always so hard to get medications. Rao said for many years, insurance companies would often ask for prior authorizations, but the process was somewhat streamlined. “There were delays by a little bit, but not by a whole lot.”
Those delays increased significantly because of pharmacy benefit managers, hired in response to rising drug prices, Rao said. They act as “one more layer of bureaucracy to go through before we can give the patient the drug.”
Those cancer drugs for Smith include chemotherapy infusions and injections she receives at cCare, along with pills she receives in the mail. A pharmacy benefit manager is involved with authorizing all of that.
“Now if this was an isolated incident by a company that was unusual, that would be one thing, but this happens to be a very common problem that we’re facing,” Rao said. “Especially over the last three to four years this whole PBM issue has become a huge issue, and when I talked about this to my colleagues, everyone has similar horror stories. And when I speak to my colleagues in other states, it appears that this is a problem all over the country.”
PBMs can work for a number of different entities. In Smith’s case, she’s dealing with CVS Caremark, the prescription benefit management subsidiary of CVS Health, which controls what pills she receives from a CVS Specialty Pharmacy and the drugs she receives via infusions and injections at cCare.
And her insurance – a plan through Anthem Blue Cross that costs around $500 a month – requires she use CVS.
But customers can’t actually visit a CVS Specialty Pharmacy, according to CVS. Cancer pills are either mailed to a patient’s home or shipped to a regular CVS store for pickup.
“My husband would call and be on the phone for five and six hours trying to advocate for me,” Smith said, “trying to find out how he could work the system so he could get the needed drug for me so that I would live.
“I’m a human being. I’m not a used car. I have feelings. I’m a person. I want to live. I want to spend time with my grandchildren. I want to quilt. I want to do things. I want to live.”
The first cancer drug Smith received was a standard, first-tier chemotherapy medication that she was able to get relatively quickly. Unfortunately, she had to stop taking it after a couple weeks in January because she had a life-threatening allergic reaction, including trouble breathing and a severe head-to-toe rash.
Rao recommended she be switched to another cancer drug, which was denied by the PBM. She was without needed medicine for nearly two months while her case was on “review” before receiving new medication.
As she waited, her cancer grew and her liver function deteriorated. She has a rare kind of myeloma that mainly involves her liver. She started losing a lot of weight and getting very sick.
“I wanted to shift her to a related drug that does not have that reaction, and the insurance company flatly refused; the PBM refused,” Rao said. “I spoke to someone at the PBM and they faxed me a protocol, basically saying that, ‘You do drug combination A first, you go to drug combination B, and only then will you get drug C,’ and what I was asking for was drug C. And so I told the family, ‘Well, this is their policy, so let’s go with drug combination B.’ “
By the time Smith received her second chemotherapy drug – in March – her cancer was much worse. That “drug combination B” that her pharmacy required she take next wasn’t effective. During this time, her liver also began to fail, Rao said.
Her cancer counts were much higher than when she was first diagnosed. Myeloma cells make a protein called light chains, Rao explained, and during this time they had increased to about 3,200. A normal number for someone in remission is 20.
Rao asked again for the drug he wanted for Smith. It was approved, but only in combination with another drug he didn’t want.
“The combination that was their protocol wasn’t what I thought was right because of her deteriorating liver and kidney functions,” Rao said. “And again, that led to another few weeks of back and forth, during which time I was giving her just half the treatment I was planning on giving her.”
Rao was eventually able to get the whole treatment he wanted, but Smith had another severe reaction and had to stop taking it. She needed to be switched a third time to another drug combination.
“That combination included a drug they had authorized in January, but because I was using it in a sort of unusual combination – and that was based on clinical reasoning – that reasoning did not fit in with what they thought should be the third-line drug combination, they again said no. Then it took another week or so, and this time the patient’s husband had learned the nuances of the process. He knew who to call, so I’m pretty sure he pushed a lot of buttons there and, finally, it got authorized.”
Rodney Smith said he had to go all the way up to a top appeals board supervisor before the drugs his wife needed were approved.
The PBMs’ protocol “was used to override my clinical judgment each time,” Rao said. “Each time they said no, the patient suffered as a result, and it led to the decline in her status by the time that we got to the right treatment.”
Since Smith has been taking her newest medications, her health is distinctly better.
Smith said it “took practically an act of God” to get the medications her doctor wanted. She credits the persistence and knowledge of her husband and doctor in keeping her from dying earlier this year. She knows many other cancer patients aren’t as fortunate.
These pharmacy denials are also incredibly frustrating for doctors trying to save patients’ lives.
“Unless I prove to the insurance company that this patient is not going to respond, then I’m out of luck,” Rao said. “Now unfortunately, the only way that we might get proof is if the patient gets much worse clinically. What if Norma’s liver had failed in the meanwhile? I can never talk to the person who made the policy. I don’t have access to someone to say, ‘Hey, can you please change your policy?’ The system is completely opaque. We have no idea who is making the decision.”
Rao said one of the strangest denials he received was after requesting a standard drug for a patient with stage-four kidney cancer and tumors in his liver.
“So we get a phone call here to my staff saying that the pharmacist – not the doctor, but the pharmacist – to the PBM called and said they are denying the drug.”
The reason given: The patient should have surgery to remove his kidney first.
“I thought it was a joke,” Rao said.
Rao called that pharmacist about the decision.
“In that particular instance, I got really upset,” Rao said. “I said, ‘The patient is too sick for surgery, and the surgeon has said no.’ They said, ‘Please fax me the surgeon’s note saying the patient is not a surgery candidate before we approve it.’
“Now, is that someone who is second-guessing me, or is it someone who is practicing medicine? And who and why is that person practicing medicine without seeing the patient?
“What if I had sent the patient for surgery and the patient had a bad complication and died from it – who is responsible? Me or the surgeon, not that person on the phone, who has zero responsibility. They have all the power but zero responsibility.”
Rao later learned from his colleagues that they had received the same drug denials for their kidney cancer patients.
“That’s because if the PBM pharmacist or who is in charge says no, well guess what? They’ll save money there,” Rao said. “The money comes out from a different pot. So the patient goes and gets surgery done, it comes out from a different part of the insurance. It’s almost like within the insurance company, they have created little fiefdoms, and each fiefdom is fighting with the others to say no to money that will come out of their pot.”
CVS Health provided an emailed statement about what happened to Smith:
“We are committed to delivering better patient experiences at lower overall costs,” wrote Mike DeAngelis, senior director of corporate communications at CVS Health.
“As part of that, for these types of therapies, payers (i.e. insurance plans, employers, etc.) often opt to employ utilization management strategies, including prior authorization, which can help ensure that patients access the most clinically appropriate and cost effective medication, and that the medication is used in line with a drug’s indication(s) and the clinical guidelines.
“In this case, we worked with the patient’s doctor and insurer to gain necessary approvals for the required prior authorization and we delivered all medications that were prescribed by her doctor.”
Rao agreed that CVS did eventually deliver medications, “at least if the meaning of ‘delivered’ is construed narrowly.”
“CVS did, eventually – but belatedly – get these life-saving drugs to my patient,” Rao said. “It is as if a fireman sat around watching a house burn, and then finally by acting at the last minute, put out the fire and then says, ‘See, I did my job.’ ”
But to get CVS to act, Rao said, it took “tremendous effort” since PBMs’ medical decisions seem “to have taken precedence over the physician’s clinical judgment.”
Rao said the drugs he wanted for Smith “were clearly prescribed completely in accordance with the drugs’ labels and were completely indicated for this patient’s condition, so it was not as if we were using them off-label, which necessitated so much extra effort.
“If my patient had been less motivated, did not have a husband who was able to go above and beyond most people, and if my office had not been as diligent as we were, this patient may have likely died waiting for CVS to come through.”
On its website, CVS Health says it is “pioneering a bold new approach to total health” that includes “a leading pharmacy benefits manager with approximately 94 million plan members.”
That pharmacy benefits manager, CVS Caremark, was described on the website this way: “We work with employers, health insurance companies, the government and other health benefit program sponsors to design and administer prescription coverage plans and keep pharmacy costs low.”
Sitting at his wife’s side in a chemotherapy clinic in July, Rodney Smith talked about how “insurance is not the problem here, it’s just getting the medication. I have the insurance.”
His wife’s doctor interjected.
“Actually, insurance is part of the problem,” Rao said.
A number of insurance companies have purchased PBMs that delay the process, Rao said.
“The longer you don’t get the drug, the more money they save,” Rao said. “The other issue that happens is they say, ‘Well, you can only go through our PBM.’”
So it’s “playing a game,” Rao continued, where a patient receives an authorization from insurance and thinks “it is someone else’s fault that they are saying no – but both are owned by the same entity.”
Ted Okon, chief executive officer of Community Oncology Alliance, has become an expert in understanding this complicated system. He’s testified before Congress on cancer issues and is frequently on Capitol Hill discussing cancer care.
Okon’s oncology alliance has documented thousands of stories like Smith’s to advocate for patients and medical professionals struggling to get needed medications.
Rao’s oncology office, cCare, is a member of Community Oncology Alliance, an association of community cancer clinics. Okon and Rao share similar concerns about PBMs and the mergers of insurance companies and pharmacies.
“Especially in the last three to four years, this has been a growing problem,” Okon said. “Unfortunately, I think it’s going to get worse and the reason I say that is, number one, we’ve seen massive mergers in the PBM industry to get us where we are today. We have PBMs that account for at least 80% of prescription drugs now.”
Okon listed the country’s three largest health insurance-plus-pharmacy pairs – accounting for “monopolistic control” of approximately 80% of prescription drugs in the U.S.
Insurance companies can require a patient only use certain pharmacies, as happened to Smith.
“Part of the problem now is that the free market is not happening,” Rao said. “Everyone talks about capitalism at work. This is capitalism not at work. The drug companies and insurance companies and the PBMs are tying things up. There is a vertical integration happening.”
Okon said part of the problem is PBMs also receive “sweetheart deals” – rebate arrangements on the drug manufacturer side that can guide drug selection based on profitability rather than what’s most appropriate for a patient.
“For example, a pharmacy benefit manager will draft a list of approved drugs, called a formulary, for an insurance company,” wrote the Los Angeles Times in a story last year about Cigna purchasing Express Scripts. “The pharmacy benefit manager will go to a drug company and offer to include that company’s drug on its list. In return, the drug company might agree to offer a rebate — say, $10 less on a $100 drug. The customer, however, would still pay $100, and doesn’t see any direct benefit from the rebate.”
The way these drugs are made available to patients is often referred to as “step therapy.” One example: Rao’s story about Smith’s pharmacy requiring her to use drug A and B before getting drug C – even though Rao believed Smith needed drug C after drug A.
Rao said step therapy policies used in Smith’s care contributed to her severe decline in health earlier this year.
“It’s just a numbers game,” Rodney Smith said. “You kill off enough people and it works out for them, but it’s not very friendly for us. … We’re talking about death here. This isn’t car sales. We need the medication now – and I’m not even dealing with cost. I was lucky enough to pay for a very good insurance, but insurance doesn’t do much good if they don’t give you the medication you need.”
Okon said he believes the federal government didn’t think step therapy would be used in cancer care but it has.
The hiring of pharmacy benefit managers and the implementation of step therapy was sold as helping bring down costs.
“It’s obviously right-minded that the administration wants to bring down drug prices,” Okon said, “but how you do that is another thing. … This is a huge mistake, and it’s also going to backfire, but unfortunately backfire means patients die.”
Okon called step therapy policies in cancer care “nothing short of inhumane.”
“They literally have to fail first at cancer treatments before they get the next treatment, before they get the treatment the physician wants,” Okon said. “It’s really almost criminal in a way.”
He believes it’s “only a matter of time” before a major lawsuit is filed regarding this issue.
Okon’s wife is an oncology nurse. He hears stories about how these issues harm her cancer patients on a daily basis.
Memories of watching his own father-in-law die with cancer, and his brother survive cancer, also motivates Okon in his advocacy work.
“These are real people,” Okon said. “They aren’t statistics.”
Rao said cCare has 10 staff members whose only job is to deal with prior authorizations, denials and PBM issues, “an extremely expensive proposition” for their practice.
He said it feels like there’s an “elephant on his back” as he tries to treat cancer patients.
“You can’t come into the room with the patient and say, ‘OK, this is what you have, this is what you need.’ It’s almost like, ‘This is what I think you need, let’s see what your insurance authorizes and what the PBM does before we get going.’” Rao said. “And patients very often get frustrated with us, saying, ‘Well, I have a cancer. I would like it taken care of yesterday.’ And I’m telling them the best-case scenario is we start something in two weeks, or maybe three weeks.”
Rao said PBM issues come up at least one to two times a day between the 12 oncologists treating patients at cCare in Fresno. That also takes an emotional toll on doctors.
“If I have three PBM issues in a day, I go home so frustrated,” Rao said, “because that sucks up 50% of my energy.”
“We are facing enormous problems with treating poor patients. … They’d probably be better off if uninsured,” Rao said. “It’s that bad.”
Rao called it a pervasive issue that’s gone “beyond a joke.” Management tactics seem to be to “throw sand in the gears” and refuse every doctor’s request.
“If you have Medi-Cal, pure Medi-Cal, and it’s run by a management medical company, then you can be rest-assured that your care is compromised because of that fact,” Rao said. “That is added onto the PBM issue. So every Medi-Cal has its own favorite PBM and they also are hurting patients through that process.”
There are a number of pending federal bills that attempt to deal with high drug costs and roadblocks to getting patients’ medications. Okon said there are three major ones pending:
1. The Senate Committee on Finance’s “The Prescription Drug Pricing Reduction Act (PDPRA) of 2019.”
2. “H.R.1035 – Prescription Drug Price Transparency Act,” introduced by Rep. Doug Collins, R-Georgia.
3. “H.R.1034 – Phair Pricing Act of 2019,” also introduced by Collins.
Many of the cancer pills Smith takes would cost around $600 per pill without insurance. She calls that “insane” and a “rack up.”
At a state level, 27 U.S. states had enacted laws related to step therapy as of January, and seven had pending legislation, Okon said.
In California, legislation was passed in 2015 to help providers bypass step therapy requirements: “AB-374 Health care coverage: prescription drugs.”
Still, step therapy issues persist.
“This cannot seem legal to me,” Rao said of pharmacies being able to trump doctors’ orders, “but somehow this has been introduced. And I think unless physicians, patients and the public expresses its anger as to how this should be done, this will continue. This is not acceptable. This is causing harm and you only hear about the people who are able to speak up.”
Okon said a number of things need to happen:
1. Eliminate rebates and deals PBMs can get for using various drugs, and make things transparent: “We have no idea what these sweetheart deals are that these PBMs are getting.”
2. Watch out for monopolies: Okon said the U.S. Department of Justice made a “mistake” in allowing CVS to buy Aetna last year.
3. More education: Helping employers understand how their employees’ families can be hurt by these companies.
4. No step therapy: It was another mistake, Okon said, for President Trump’s administration to allow step therapy cancer care in Medicare Advantage plans. (That happened in May via the U.S. Department of Health and Human Services’ “Medicare Advantage and Part D Drug Pricing Final Rule (CMS-4180-F).”)
And, patients, medical professionals, and community members bringing these issues to the attention of pharmacies, insurance companies, and elected officials.
Rao also is hoping for a law that makes those who deny care responsible for the consequences of their actions.
Smith shared a letter she received from CVS Caremark in February, informing her that she would not be receiving a cancer drug prescribed by her doctor.
“Standard Pomalyst Policy states: Coverage of Pomalyst for multiple myeloma is provided when the patient has used 2 or more treatment regimens in the past before requesting the use of Pomalyst,” the letter reads. “The information provided by the prescriber does not indicate that this condition is met. Based on the information provided by the prescriber, use of Pomalyst is not covered by the plan.”
The letter states that the decision can be appealed by mail or fax.
“You may ask for a free copy of the actual benefit provision, guideline, protocol or other similar criterion used to make the decision,” the letter continues, “and any other information related to this decision by calling Customer Care toll-free at the number on your benefit ID card.”
The letter goes on to say that CVS can discuss the decision with the patient’s doctor.
“If your prescriber would like to discuss this decision with a clinical reviewer at CVS Caremark, your prescriber can call CVS Caremark, and we will arrange to make someone available to speak with your prescriber.”
Smith wants a more “user-friendly” and “pro-patient” system.
She’s finally found a treatment regime that’s working for her body and killing her cancer: All-day chemotherapy infusions every other week, a weekly chemo shot in the stomach, and cancer pills. But her most recent prescription for 40 pills just ran out.
Smith expects Rao will want to order more during her next doctor’s appointment later this month. She’s worried a CVS pharmacy benefit manager will again object, resulting in another delay.
Her cancer counts have dropped from over 3,200 at their worst to around 400. She wants those numbers to keep dropping to near zero so she can be considered healthy enough for a potentially life-saving bone marrow transplant.
“And for me as a patient who is going through chemotherapy, I’m trying to live,” Smith said. “I’m fighting for my life. This has been a very stressful time for me. It’s kept me awake at night with anxiety, wondering if my drugs are going to be approved. …
“I’ve been going through this cancer journey for seven months now and I’m trying very hard to keep upbeat and to be strong, but I need better support from the pharmaceutical companies to help me as a patient and to help other patients that go through this.
“We want to live. We want the best chance to live, but we need the correct medications to do so.”
My Patient Rights can help guide you in resolving issues so you can get the health care you deserve.
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