Office of the Attorney General
Kentucky and 16 Other States Move to Join Suits Against Pharmaceutical Giant Wyeth

Kentucky Attorney General Jack Conway today announced that Kentucky and 16 other states have filed a joint motion for leave to intervene in two whistleblower lawsuits against the drug manufacturer Wyeth alleging that the company knowingly failed to report certain discounted prices of its drugs as required by laws governing the Medicaid program. As a result, Wyeth allegedly avoided paying hundreds of millions in rebates due to state Medicaid programs for its drugs, Protonix Oral and Protonix IV. These drugs belong to a class of drugs known as proton pump inhibitors (PPI), which are used to suppress stomach acid.

Under the Medicaid Drug Rebate Program, drug manufacturers are required to report to the government certain prices they charge their customers, including the "best price" offered for their drugs. They also are required to pay rebates to the state Medicaid programs which are calculated based on the reported discounted prices offered to other customers. Congress created the Medicaid Drug Rebate Program in order to ensure that Medicaid, the nation's provider of health insurance to the poor and the disabled and one of the largest purchasers of drugs, receive the benefit of the same discounts offered to other large commercial customers in the marketplace.

Between 2001 and 2006, Wyeth offered steep discounts to thousands of hospitals nationwide for Protonix Oral and Protonix IV under pricing arrangements known as "Protonix Performance Agreements" that offered discounted prices based on certain conditions, such as market share or placement on formularies. The States allege that Wyeth was required under the Medicaid Drug Rebate Program to report these prices paid by hospitals under this arrangement, and to pass along the benefit of the lower prices to the state Medicaid programs. Wyeth allegedly failed to do so and therefore avoided paying hundreds of millions of dollars to Medicaid in rebates.

"I look forward to working with my colleagues in other states to recover money owed to the state Medicaid program and to Kentucky taxpayers," said General Conway. "I have made it clear that fraud and abuse of the Medicaid program will not be tolerated in Kentucky."

The case is being handled by General Conway's Office of Medicaid Fraud and Abuse Control. Last year, the United States and 16 other named plaintiff states intervened in these two whistleblower lawsuits now pending in the United States District Court for Massachusetts. By intervening in the suits, Kentucky seeks damages from Wyeth on behalf of its Medicaid program.

Joining Kentucky in this effort are Kansas, Maine, Minnesota, Colorado, Wyoming, Maryland, Nebraska, New Jersey, North Carolina, South Carolina, South Dakota, Utah, Vermont, Washington, Oregon and Rhode Island.

Since Attorney General took office in January 2008, his Office of Medicaid Fraud and Abuse Control has recovered or been awarded more than $100 million for the state and federal Medicaid programs. These cases range from lawsuits and settlements against pharmaceutical companies to cases against individual providers.