Mark Cuban Uses Claude AI To Expose Hidden PBM Fees In Denver Contract
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Then I asked for a simplified version of the above : Here it is in plain English. Denver hired UnitedHealthcare to run its employee health plan. Denver pays the actual medical and drug bills itself — United just processes them. That’s what “self-funded” means. The problem is that Denver can’t see what it’s actually paying for drugs. 1. United buys the drug for one price and charges Denver a different price. It keeps the difference. Say the pharmacy gets paid $40 for a prescription. United bills Denver $100. United keeps $60. Denver never sees the $40. The contract says this out loud in three different places — it’s not hidden, it’s just written in language nobody reads. There’s no cap on how big that gap can be. 2. Drug companies pay rebates. United keeps all of them and hands Denver a flat number instead. United collects rebate checks from drug manufacturers. Instead of passing those through, it promises Denver a fixed amount per brand prescription (about $740 in 2023). If the actual rebate was $1,500, United keeps the extra $760. The contract literally says any rebates above the fixed amount belong to United. Denver has no right to know what the real number was. 3. United decides which drugs are “specialty” — and specialty drugs are where the money is. The contract defines a specialty drug as, essentially, “whatever United’s own specialty pharmacy sells.” United also reserves the right to reclassify drugs whenever it wants. Once a drug is labeled specialty and filled at United’s own pharmacy, it drops out of the normal price guarantees entirely. So the most expensive drugs are the least protected. 4. The most expensive drugs of all — the ones given in a doctor’s office or infusion center — have no price guarantee at all. The contract flatly excludes them. Cancer drugs, infusions, injections administered by a provider. Zero pricing protection. 5. Denver can’t shop around, and it can’t leave without a penalty. Denver isn’t allowed to negotiate directly with any drug manufacturer. It must use United’s mail-order pharmacy exclusively. And if Denver hires an outside vendor that steers employees to cheaper drugs or cheaper pharmacies, United can cancel all the pricing guarantees. If Denver ends the drug program early, United keeps every rebate it owes. 6. Denver can’t audit its way out of this. Denver is allowed one audit a year, capped at 300 prescriptions, using a random sample United has to approve. No auditors paid on commission. No computer-based searches for errors. You cannot find a pricing problem across hundreds of thousands of claims by randomly checking 300 of them. The audit rules exist to make sure nothing gets found. Is any of it illegal? Almost none of it. It’s a legal contract that Denver signed. The one thing that might cross a line: federal law since 2021 bans “gag clauses” — contract terms that stop an employer from seeing its own cost and claims data. This contract says United may let Denver see its pricing information, at United’s discretion. Federal regulators have said that “only if the vendor allows it” language is exactly what the gag-clause ban prohibits. And Denver has to certify to the government every year that it has no gag clauses in its contracts. The one thing Denver could actually do about it: Colorado banned this drug markup practice, effective January 2025, and self-funded employers like Denver can opt in. It’s an election, not a lawsuit. Somebody should check whether Denver ever filed it. The bottom line for an HR person: the drug program looks free. There’s no fee for it anywhere in the contract. That’s the tell. United isn’t working for free — it’s getting paid out of the drug prices, and the contract is built so Denver can’t measure how much.
United may revise or revoke the entire pricing arrangement if “Customer utilizes a vendor that facilitates steering members to different drugs or pharmacies.” Plug in a cash pay or an independent specialty vendor and United can pull the guarantees. And, the audit rights are engineered so none of this surfaces. No contingency-fee auditors. No electronic/data-mining audits “used for purposes of recovery discovery.” Sample capped at 300 claims. Random sample methodology “as approved by United.” No audits in December or January. Rebate audits must be Big Four only, conducted on-site at United, separate from claims audits, and limited to five rebate agreements. You cannot detect spread with a 300-claim random sample — that restriction exists for exactly that reason. Meanwhile Denver pays United contingency fees: 22% on fraud/abuse recoveries, 22% on hospital audits, 22% on focused claim review, 33.33% on subrogation. United’s affiliate also takes 1–3% of provider payment transactions funded by Denver’s money, and keeps float interest on claims funds between withdrawal and payment. One drafting error worth a call today: the Naviguard fee reads “thirty-five percent (25%).” Words and numerals conflict. Under standard construction the written words control. Denver is exposed to a 10-point delta on out-of-network savings fees. What I can’t tell you: the dollar magnitude. Spread, actual rebate yield, and specialty markup are all unmeasurable from the four corners of this document — by design. To size it, Denver needs its claim-level file (NDC, quantity, days supply, ingredient cost, dispensing fee, plan paid, pharmacy NPI) benchmarked against NADAC. FTC’s second interim report found affiliated pharmacies generated over $7.3 billion in dispensing revenue in excess of NADAC on specialty generics from 2017–2022, and a disproportionate share of prescriptions marked up more than $1,000 each were filled at PBM-affiliated pharmacies. That’s the exercise. This contract just doesn’t let Denver run it. Sources: the filed agreement itself (Sections A4, A7, A8; Exhibit B – Fees; Pharmacy Financials and Specialty Pharmacy exhibits); FTC, Specialty Generic Drugs: A Growing Profit Center for Vertically Integrated PBMs, Second Interim Staff Report, Jan. 14, 2025.
And a thank you to Denver and all cities and states that make their contracts available. It’s the only way to make things better.
The city of Denver makes it’s PBM contract available online. So I grabbed it and had Claude look at it and answer a simple question “Where are they getting ripped off” Here is it’s response: Denver is getting hit in six places, and the contract says so out loud. This is a self-funded City & County of Denver plan (4,051 employees / 8,554 participants, 1/1/2023–12/31/2025, $80M max) where the only stated pharmacy fee is… nothing. The medical admin fee is $45.13 PEPM. There is no PBM admin fee. That’s your first tell — the pharmacy program is priced entirely in the dark. 1. Spread pricing, written into the contract three separate times. Section A7 (Claims Processing): on mail, specialty and retail, United retains the difference between what it reimburses the network pharmacy and what Denver pays. It’s repeated in the General Conditions of the Pharmacy Financials exhibit and again in the Specialty Pharmacy Discount Guarantee conditions. So the AWP-discount guarantees describe what Denver pays — not what the pharmacy receives. The delta is Optum’s revenue, uncapped and unreported. For a public entity, that’s the whole ballgame. FTC found the Big 3 generated an estimated $1.4 billion of spread income on specialty generics alone. 2. Rebates: 100% retained, replaced with a fixed per-script number. Section A8: United keeps 100% of pharmacy rebates and pays Denver a fixed brand-script guarantee instead — $740.43 retail / $1,020.22 mail in 2023, rising to $885.02 / $1,105.10 by 2025. The contract then says explicitly that any rebates above the fixed amount are United’s to keep. Manufacturer rebate administration fees are folded into the guarantee, meaning they’re netted against what Denver was already owed rather than paid over. Denver has no idea what the actual rebate yield is, and no contractual right to find out. 3. The Rebate Credit clause is the biosimilar killer. If Denver moves to a biosimilar, an authorized alternative, or a lower-WAC brand, United gets credited toward its rebate guarantee for the manufacturer revenue it would have earned had Denver stayed on the high-rebate originator. Translation: United is financially indifferent to Denver buying the cheaper drug. Denver’s savings on ingredient cost get clawed back through the rebate math. 4. Your five clauses — all present, all in United’s favor. Specialty Drugs are defined as “Prescription Drugs available at United’s Specialty Pharmacy.” That’s a circular definition: whatever Optum stocks is specialty. Then: “United reserves the right to change the designation of a drug from specialty to non-specialty based on market conditions.” Then: specialty dispensed inside United’s specialty network is excluded from the retail and mail guarantees. Specialty dispensed outside it gets swept into the retail guarantee. Specialty rebates are “included in retail.” The specialty guarantee itself is 20.7% off AWP composite — and any specialty drug not on United’s list is guaranteed at only 14.0%. United controls the list. Every new high-cost launch defaults to the 14% bucket. And spread is retained on top of the discount either way. 5. Medical-benefit specialty has no guarantee at all. “Specialty drugs typically covered under the medical benefit (physician’s office, ambulatory, home infusion), and/or transitioned to the pharmacy benefit, are excluded from all guarantees.” That’s the buy-and-bill oncology and infusion book — the most expensive spend in the plan — with zero pricing accountability. On medical drug rebates Denver gets 80%, United keeps 20% plus float interest, and an unnamed subcontractor takes an undisclosed cut on top. 6. The lock-in clauses, which are the reason you can’t fix any of the above. Denver may not negotiate with any manufacturer for rebates or direct purchase — doing so forfeits earned-but-unpaid rebates. All pricing guarantees require United as exclusive mail provider. Terminating pharmacy services early means United keeps every pending and future rebate.
Based on the Denver PBM contract Claude gave us the Red Flsg checklist that every self insured employer can start with