A Geneva resident who says pharmacies are overcharging
people with diabetes for medication is pursuing a class action complaint
against some of the country’s largest retail drug stores in Chicago federal
court, seeking at least $5 million.
Robert Mayberry filed his complaint March 3, naming as
defendants Walgreens, CVS Pharmacy and Osco Drug parents Albertsons and
Supervalu. He accused each pharmacy of improperly processing claim payment and
reimbursement of insulin pump supplies, which are supposed to fall under
Medicare Part B, resulting in customers paying more than their intended share.
Not only do these customers pay more out of pocket, the
complaint continues, they also reach Medicare Part D limits faster, thereby
incurring out-of-pocket expenses for other prescriptions that are supposed to
fall under Part D, until they reach Medicare’s catastrophic coverage threshold.
In 2016, Medicare participants were completely responsible for Part D drugs after
reaching $3,310 in plan purchases until they’d spent $4,850 out of pocket.
According to the complaint, Part B covers medical services
required for people with diabetes as well as some preventive services for Medicare
beneficiaries considered at risk for diabetes. Specifically, this includes
external insulin pumps and insulin for those pumps. Part D covers anti-diabetic
drugs, including insulin, and supplies needed for inhalation or ingestion.
The distinction, per Mayberry’s complaint, is that “most
health insurance plans, including Medicare and Medicaid” classify an insulin
pump and supplies — which includes the drug itself — as durable medical
equipment. He further alleges the pharmacies are motivated to misclassify these
purchases in pursuit of profits because the Center for Medicaid Services has
cut its rate of reimbursement for the products. The pharmacies make more money
when patients pay out of pocket.
Mayberry said he’s been on Medicare since 1996 and has had
type 2 diabetes and used insulin to control blood glucose for about 35 years.
He said for the last 15 years, he’s had a prescription for an insulin pump. On
Feb. 23, 2016, his Part D coverage supplier, WellCare, sent him a denial of
benefits notice regarding insulin, which is when he said he realized he’d been
improperly paying out-of-pocket expenses for years.
The complaint accuses the pharmacies of fraudulently
concealing their claims reimbursement processes, depriving customers of the
ability to learn they were paying too much and overextending their Plan D
contributions. That concealment, Mayberry contends, tolls any statute of
Formal allegations include a violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act, as well as similar laws of
other states, common fraud by omission and unjust enrichment.
The pharmacies, Mayberry alleges, “continuously and consistently
failed to disclose to consumers … the defective claims process concerning
insulin prescribed for use via pump (and) failed to make these disclosures
despite opportunities through” employees, advertising, websites and sales
The class would include all Medicare or Medicaid plan
participants who obtained an insulin pump from the named pharmacies from 2006
through the present.
In addition to class certification and a jury trial,
Mayberry’s complaint seeks restitution, compensatory damages, punitive,
statutory and treble damages, as well as attorney fees and interest. He also
wants the court to compel the pharmacies to establish a program to reimburse
customers for Medicare claims related to insulin pumps that were previously
denied or insufficiently paid.
Representing Mayberry in the matter, and serving as putative
class counsel, are attorneys with the Clifford Law Offices, of Chicago.