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Sean D. Reyes
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Utah Attorney General Recovers $1.6 Million for Medicaid in Dispute with Mylan Over Misclassification of Epi-Pen

SALT LAKE CITY October 27, 2017 – Attorney General Sean Reyes announced today that proceeds of a settlement with Mylan pharmaceutical have been delivered, and Utah has settled allegations against Mylan Inc. and its wholly-owned subsidiary, Mylan Specialty L.P. (Mylan).  The settlement will resolve allegations that Mylan knowingly underpaid rebates owed to the Medicaid program for the drugs EpiPen® and EpiPen Jr.® (EpiPen) dispensed to Medicaid beneficiaries.  Under the settlement which involved all fifty states and the federal government, Mylan agreed to pay $465 million to the United States and the States.  The States will share $213,936,000 of the total settlement.  As part of the settlement, Utah received a total of 1.6 million dollars which represents recovery for the state and federal government for expenditures to the Utah Medicaid program.

“The pharmaceutical industry produces many vital drugs and products for the benefit of our citizens, but like any other major industry, there need to be safeguards in place and rigorous enforcement of the law to assure that the taxpayers are being treated fairly under the regulations established by Congress,” said Attorney General Sean Reyes.

Mylan Inc. is a Pennsylvania corporation with its principal place of business in Canonsburg, Pennsylvania.  It manufactures, markets and sells pharmaceuticals through its wholly-owned subsidiaries.  Mylan Specialty is a Delaware limited partnership with its principal place of business in Morgantown, West Virginia.  Mylan Specialty owns the exclusive rights to sell EpiPen in the United States and possesses legal title to the New Drug Codes (“NDCs”) for EpiPen. 

The Medicaid Drug Rebate Statute was enacted by Congress in 1990 as a cost containment measure for Medicaid’s payment for outpatient drugs.  That statute requires participating pharmaceutical manufacturers or NDC holders, such as Mylan, to sign a Rebate Agreement with the Secretary of the United States Department of Health and Human Services as a precondition for obtaining Medicaid coverage for their drugs and to pay quarterly rebates to State Medicaid programs for drugs dispensed to Medicaid beneficiaries.  NDC holders are required to provide information to CMS concerning their covered drugs.  In particular, they (Mylan) must advise CMS regarding the classification of a covered drug as an “innovator” or “noninnovator” drug, as the amount of rebates owed varies depending on the drug’s classification.  The amount of the rebate also depends on pricing information provided by the manufacturer.  For drugs classified as “innovator” drugs, NDC holders must report their “Best Price,” or the lowest price for which it sold a covered drug in a particular quarter. 

Specifically, this settlement resolves allegations that from July 29, 2010 to March 31, 2017, Mylan submitted false statements to the Centers for Medicare and Medicaid Services (“CMS”) that incorrectly classified EpiPen as a “noninnovator multiple source” drug, as opposed to a “single source” or “innovator multiple source” drug, as those terms are defined in the Rebate Statute and Rebate Agreement.  Mylan also did not report a Best Price to CMS for EpiPen, as that term is defined in the Rebate Statute and Agreement, which it was required to do for all “single source” and “innovator multiple source” drugs.  As a result, Mylan submitted or caused to be submitted false statements to CMS and/or the States relating to EpiPen for Medicaid rebate purposes, and underpaid its EpiPen rebates to the State Medicaid Programs.  

Mylan’s settlement with the United States also resolves allegations that Mylan Specialty overcharged certain entities (known as the “340B Covered Entities”) that participated in the 340B Drug Pricing Program, 42 U.S.C. § 256b.

The Medicaid Fraud Control Unit and the Utah Department of Health worked with the National Association of Medicaid Fraud Control Units (“NAMFCU”) Team who participated in the settlement negotiations with Mylan on behalf of the states.  Assistant Attorney General Robert Steed stated, “Mylan captured the attention of Congressional and local leaders of their price increases of the drug Epi Pen which is still a matter for review, but this settlement resolves a separate matter concerning the classification of the same drug for purposes of paying governments the correct rebate amount.”

 

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