Friends,
Three months ago the FTC issued a binding consent order against Express Scripts and Cigna. We covered it when it landed. The order is not guidance and not optional. It is a 10-year federal mandate that resets how pharmacy benefits must be priced, designed, and disclosed.
The headlines moved on. The obligations did not. And here is the uncomfortable part: most employers still sitting on a Cigna or Express Scripts arrangement have not asked a single question about whether their own plan reflects what the FTC now requires as a standard offering.
So let’s fix that. Here is your 90-day checklist. Walk through these with your PBM, your broker, and your own plan documents.
1. Are we being offered the compliant standard offering, or something worse?
The order requires Express Scripts to actively promote a compliant standard offering and spend at least $10 million a year marketing it. They are not allowed to bury it or steer you away from it. So ask directly: are we on it? If not, why not, and who made that call? If you are being sold a design that still leans on list prices and rebate guarantees, you are being sold something the FTC already flagged as the inferior option.
2. Has spread pricing been eliminated from our contract?
The order kills spread pricing for Express Scripts. If your arrangement still has the PBM keeping the difference between what the plan pays and what the pharmacy gets, that is a problem. Pull the contract. Look for it. If you cannot tell from the language, that opacity is itself the answer.
3. Are rebates flowing to members at the point of sale?
Manufacturer compensation can no longer be tied to inflated list prices, and rebates and discounts are supposed to reach members at the counter. Ask whether your members are seeing lower costs at the point of sale, or whether rebate dollars are still being aggregated and held somewhere upstream.
4. Are members paying more than the net cost of the drug?
The order bars charging members more out of pocket than the actual net cost. This applies to all plan types, including high deductible health plans. If your coinsurance is still calculated off list price, your members are overpaying, and the order says that practice has to stop.
5. Did anyone opt us out of the consumer-friendly programs in writing?
Express Scripts has to give plan sponsors access to cost-lowering programs, including insulin affordability and point-of-sale reductions. Employers can opt out, but only in writing, after acknowledging they are declining the better option. So ask: did we opt out of anything? If yes, who signed it, and do we still stand behind that decision? That paper trail is now part of your fiduciary record.
6. Are we getting the disclosure and reporting the order requires?
Express Scripts must provide drug-level and claim-level reporting and fully disclose compensation paid to brokers and consultants. If you are not receiving that data, request it. If your broker’s compensation has never been disclosed to you in writing, that is the thread to pull next.
Why this matters.
The FTC did not just discipline one company. It established a new baseline for what fair, reasonable, and fiduciary-aligned pharmacy benefits look like. That baseline now sits in the background of every plan sponsor’s decision, whether your vendors mention it or not.
Here is the fiduciary reality. If a compliant, more consumer-friendly standard offering exists, and you are being kept on something worse, the question is no longer just about price. It is about whether the people responsible for the plan can explain why they accepted the inferior option. Three months in, “we didn’t know” is wearing thin. Ninety days from now it will not be a defense at all.
Run the checklist. Document the answers. And if your PBM gets vague when you start asking, that vagueness is the finding.
Justin