Political Advocacy

Mark Smith Boesen & Snow’s Director of Public Policy

Why You Should Consider Engaging in Political Advocacy

Political Advocacy: Fighting Goliath without Breaking Your Budget

Businesses need to be politically active. This has never been more important than right now, especially in the pharmacy and health care sectors. Vertical integration among the Fortune 50 companies has created an environment where your business’s competitors are making decisions that affect your ability to survive. The health plans that decide whether your pharmacy or practice is in network literally own and operate (either directly or indirectly) your competition. The health plans and their benefit managers also decide whether you followed the rules or engaged in Fraud, Waste, or Abuse, which can result massive financial penalties and network terminations. In short, your competitors decide if their patients can use your pharmacy or practice, what you get paid for the care you deliver, and whether to pay you for your services or to deny or recoup payment in their sole discretion and regardless of the quality of your care and documentation. Your competitors’ owners hold all the cards and are politically active. You have to insert your business into the discussion and level the field.

Litigation Can Be Slow, Uncertain, and May Cost More Money than You Can Recover

Most of our clients assume the only real pathway to fight for their rights to provide pharmacy or health care services (and receive due compensation) is to file a lawsuit the health plans and PBMs. Many clients ask about Class Actions, having heard stories that PBMs and health plans mistreat everyone in their industry. As a practical matter, however, the health plans and PBMs contracts operate to deter these approaches by making expensive litigation even more unpalatable. For example, your contract may bar class actions or require you to pay your attorney’s fees even if you prevail. The costs of litigation are unaffordable for most small business owners. You can expect to pay an initial deposit of at least $50,000 just to start the process. In the end, the fees to fight in arbitration or court usually end up in the hundreds of thousands. This is money you don’t have, especially after your opponent has suspended payment or terminated you from its networks.

Leveling the Playing Field by Enlisting the Help of your Elected Members of the State/Federal Legislatures and Executive Branch

Often, the only real tool the business owner has (small or large) is requesting help from state and federal agencies and elected officials. Policymakers in both blue and red states claim to be business friendly advocates for the underdog. Our firm’s attorneys and lobbyists have decades of experience leveraging elected and appointed officials to champion our clients’ causes. Lobbying costs less than litigation, and investing small amounts every month can generate results, both for today’s problems and when the unexpected happens down the road. Our firm can advocate for you in any state and in our nation’s capital and develop friends who can jump into your current fight or who will answer the call when the need arises.

Meet Mark Smith, Boesen & Snow’s Director of Public Policy

Mr. Smith has over thirty-one years of experience in government relations. He has extensive experience in health care, telecommunications, information technology, law enforcement, intellectual property, and privatization issues. Mr. Smith also specializes in the areas of congressional relations, appropriations, and policy development.

Over the past three decades, Mr. Smith has owned and managed The Da Vinci Group, Inc. a government relations and public affairs firm in Washington, DC. He enjoys relationships with several members of Congress, who seek his advice on an array of legislative and political issues. Mr. Smith’s close relationships with key staffers on both sides of the aisle also give him an advantage in understanding how issues impacting his clients also interest lawmakers, regardless of party. Mr. Smith has had enormous success in legislative affairs, general consulting and campaign fundraising on congressional campaigns with an 83% success record over the past decade.

Mr. Smith lives in Purcellville, Virginia with his wife and children. In addition to his interest in politics on the national level, Mr. Smith spends much of his free time actively helping his community, working with candidates for elective office and advocating issues at the local and state levels.

Recent Political Advocacy Activity

• In March 2023, Mark Smith and firm partner, Mark Boesen spent two days on Capitol Hill in Washington D.C. with firm clients, meeting with elected representatives and their staff to discuss unwarranted PBM action specific to the clients and PBM reform legislation more broadly. The firm and their clients met with officers:
• Representative Owens (Utah, 4^th District)
• Representative Mills (Florida, 7^th District)
• Representative Clyde (Georgia, 9^th District)
• Representative Comer (Kentucky, 1^st District)
• Representative Van Drew (New Jersey, 2^nd District)
• Representative Cline (Virginia, 6^th District)
• Representative Harshbarger (Tennessee, 1^st District)
• Representative Lee (California, 12^th District)
• Representative Mace (South Carolina, 1^st District)
• Representative Rosedale (Montana, 2^nd District)
• Representative Krishnamoorthi (Illinois, 8^th District)
• The current level of PBM reform activity in the Senate has been productive as the Senate commerce committee voted out the Cantwell-Grassley bill with a bipartisan majority recently. In addition, multiple, PBM reform and transparency bills have been filed in the house with the Energy and Commerce committee recently holding a hearing on all of these bills to begin the process to vote out a bill in full committee and merge those bills with the Senate companion to send a PBM reform bill to the White House later this year for signature.
• Recently, Boesen & Snow has leveraged its lobbying efforts to navigate and even create state regulatory processes to reign in abusive PBM audit tactics. In one matter, Boesen & Snow filed a complaint with a state department of insurance against a major PBM, based upon a recently enacted PBM audit-defense law. Initially, the Department of Insurance would not set a hearing on the matter as the PBM claimed they were not subject to the jurisdiction of the state rules as the audit was initiated based on “the suspicion of fraud, waste and abuse” (although the PBM never articulated the suspected FWA or made any such findings). Boesen & Snow escalated its argument to high-ranking state officials, who accepted the complaint and have scheduled a hearing on the PBM’s conduct. In another matter, Boesen & Snow learned that despite having passed a PBM audit law over a year earlier, a state had failed to develop any process or procedure for enforcement. Boesen & Snow engaged with multiple state agencies and a private contractor that conducts insurance dispute arbitrations for the state to literally create the process and provide the client and now every other pharmacy in the country with access to a meaningful regulatory appeal process. As most pharmacies that have undergone a PBM audit understand, being in front of a neutral judge—especially a state regulator—will change a PBMs tone.
• Mark Boesen recently testified before the Arizona Senate regarding the need from a host of stakeholders including patient advocacy groups, non-PBM owned pharmacy providers, and payors who hire PBMs to promote reasonable regulations that require the following: (1) PBMs be licensed by the Arizona Dept of Insurance, which is critical to enforcement of any statute or rule that governs the conduct of a PBM performing services to Arizona citizens; (2) PBMs treat all pharmacy providers in the exact same manner as pharmacies they own or are affiliated (same audit rules, same payment rates, same network enrollment requirements); and (3) providing patients and pharmacies with a “private cause of action” against a PBM for violations of Arizona law. Following the testimony, the patient advocacy groups simply agreed with all of testimony submitted by our firm as speaking on behalf of patients as well as pharmacy providers.
• Boesen & Snow regularly communicates with State Departments of Insurance and State lawmakers to educate them on egregious PBM activities, discuss proposed oversight and enforcement and recommend legislative reform. In certain circumstances, these entities are willing to communicate with PBMs related to their concern about PBM conduct. For example, recently Boesen & Snow successfully negotiated an expedited preliminary audit review after a major PBM incorrectly determined that approximately $12.5M in invoice shortages existed for five commonly owned pharmacies and imposed a devasting payment suspension. The PBM disregarded purchase invoice documentation from major wholesalers. Boesen & Snow intervened and leveraged its relationship with the state Department of Insurance and elected representatives from the pharmacies’ home state to secure an expedited review within the PBM that resulted in a 66% decrease of initial audit findings (additional documentation ultimately reduced the findings by 96%) and lifting of the payment suspension.