Legal Risks of Co-Payment Assistance Programs

Drug prices continue to increase, particularly for new specialty drugs. To improve the affordability of these drugs, pharmaceutical manufacturers have initiated consumer coupon and copayment (copay) assistance programs. Arguably, these programs are motivated by a dual aim: to improve patient access to products with beneficial outcomes, by lowering the price barrier, and to counter the erosion of the market for products that is produced by formulary restrictions, enhanced copays and other drug utilization management controls adopted by third party payors (i.e., insurers or health plans). As health care costs increase, insurers and health plans struggle to find ways to control costs and expensive drugs are an easy target (in the last few years, drug costs typically have accounted for more than 10% of overall health care costs). According to the Pharmaceutical Care Management Association (PCMA), an industry association that represents pharmaceutical benefit managers, at the current trends, copayment (copay) coupons will increase 10-year prescription drug costs for employers, unions and other plans sponsors by $32 billion.