December 16, 2019

Florida Trend Exclusive

Florida's opioid legislation facing resistance from CVS and Walgreens

Jason Garcia | 4/8/2019

The state of Florida late last year sued CVS and Walgreens in federal court, accusing the nation’s largest drugstore chains of creating – and profiting from – a nationwide opioid crisis that kills 17 people a day in Florida alone. 

Now, the state’s new attorney general, Ashley Moody, is asking the Florida Legislature to help her make the case. CVS and Walgreens are trying to persuade lawmakers not to do it.

The legislative battle centers around Florida’s prescription drug monitoring program, a central database tracking the distribution of painkillers and other legal-but-addictive drugs around the state. Doctors and pharmacies are required to report into the system, which law enforcement agencies can access as part of criminal investigations and today contains more than 230 million prescription records. 

Lawmakers established the database nearly a decade ago as part of a crackdown on pain clinics and pill mills, despite concerns from doctors and pharmacies who feared the information could be exploited in lawsuits. To ease their concerns, legislators included a provision in the law decreeing the records “informational only” and forbidding them from being used as evidence in any civil or administrative action against prescribers or dispensers. 

Meanwhile, according to the state Medical Examiners Commission, opioid-related deaths in Florida reached nearly 6,200 in 2017 – an average of 16.9 per day. That prompted the state, under former Attorney General Pam Bondi, to sue some of the nation’s largest manufacturers and distributors of painkillers, including Purdue Pharma, Johnson & Johnson, Janssen, McKesson and AmerisourceBergen, among others. And in November, just before leaving office, Bondi sued CVS and Walgreens, too, accusing the two pharmacy chains – which together have more than 1,500 stores across Florida – of ignoring red flags and failing to implement adequate safeguards in “the race to sell as many opioids as possible.”

Collectively, the defendants represent some of the largest and most profitable companies in the United States. That’s by design: Florida’s lawsuit – and others just like it filed by hundreds of cities, counties and states around the country – ultimately aims to force the companies to pay hundreds of millions of dollars to defray the public costs of the epidemic, for everything from hospital stays and law enforcement investigations to care for displaced children and morgue overcrowding. 

CVS and Walgreens have responded by arguing, in part, that the state doesn’t have any evidence that they have done anything but fill legitimate prescriptions. The state’s complaint cites suspicious examples based on the volume of painkillers being sold – for instance, Walgreens reportedly distributed 2.2 million pills from a single company pharmacy in Hudson, a Pasco County town of just 12,000 people. “But they don’t name a single prescription that was filled that was unreasonable on its face or, you know, patently wrong,” Lester Houtz, an attorney for Walgreens, said in an April 2nd hearing on a motion by all the defendants to have the suit dismissed. (The judge denied the motion.)

Moody, a Republican and former circuit judge in Hillsborough County who succeeded Bondi as attorney general in November, is looking for that evidence – from the prescription drug monitoring program. Her office is lobbying the Legislature to pass a bill that would remove the restriction that prevents information from the database from being used in litigation against pharmacies.

A spokeswoman for Moody described the information as helpful to the case, though not indispensable. “While we believe that we can already defeat their defense, the data in the PDMP will allow us to show CVS’ and Walgreens’ wrongful conduct and their culpability in this epidemic,” says Moody spokeswoman Kylie Mason. 

Others say the data is crucial. “Only the prescription drug monitoring program has the necessary information so that the attorney general can connect the dots for the judge and the jury in these cases,” Sen. Tom Lee, a Brandon Republican who is sponsoring the Senate version of the bill, told the chamber’s Health Policy Committee during a hearing on the legislation last week. 

There has been relatively little opposition to the legislation in public. The bills (HB 1253, SB 1700) have so far advanced through committee stops without a single vote against. But CVS and Walgreens have been raising objections in private. “Pharmacists are scared to death of your bill,” Sen. Aaron Bean, a Fernandina Beach Republican, told Lee during the Health Policy hearing. 

A spokesman for Walgreens declined to comment on the legislation. A spokesman for CVS said the company has not lobbied against the legislation – but that it has “raised concerns” about it. 

One of their objections is that, while the bill would allow information from the drug database to be used in litigation against pharmacies, it would maintain the prohibition against using the information against doctors. “The bill does not address the role of inappropriate prescribing of opioids by physicians and doctors and the responsibility that prescribers have to check the database before writing such prescriptions,” says CVS spokesman Mike DeAngelis. 

The attorney general’s office says it does not need information from the database in order to prosecute doctors. But leaving the liability shield for doctors in place also carries a strategic advantage – it avoids drawing opposition from the Florida Medical Association, which represents doctors and is an influential lobbying group in Tallahassee. 

“The more voyeuristic you become with the request for information, the more this room fills up with people who express concerns,” Lee, the Senate sponsor, acknowledged during the Health Quality hearing.

A few organizations have publicly expressed opposition, including the Florida Justice Reform Institute, a business-backed group that opposes the expansion of civil liability for businesses. Like CVS, the organization says the legislation doesn’t address what it says is the root problem. “Ninety-nine-point-nine-nine percent of the problem here is bad doctors who are over-prescribing,” William Large, the institute’s president, told the House Judiciary Committee during a recent hearing on the bill. 

A lobbyist for the Florida Retail Federation, whose members include both CVS and Walgreens, also criticized the legislation because it “unfairly isolates individual pharmacists and pharmacies while keeping in place protections for prescribing physicians.” Records show that Walgreens gave $25,000 to the Retail Federation’s political action committee a few weeks before the legislative session began in March. 

The battle resumes Tuesday when the House Health & Human Services Committee holds a hearing on the legislation, a day after the Senate Judiciary Committee approved it on Monday. Though no lawmaker has yet voted against the bill, there are signs the opposition from the pharmacies is resonating with some lawmakers.  

Sen. Dennis Baxley, an Ocala Republican, said during the Health Quality meeting that he had “great reservations” about the bill – though he ultimately supported it. 

“I have seen many attorney generals across the country use the office to basically shake down large companies. And I don’t believe our attorney general would do that,” he said. “But I sure would like some reassurance that we’re trying to catch bad actors and we’re not trying to redistribute resources.” 

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