Express Scripts PBM contracts for TRS-ActiveCare, TRS-Care Standard and TRS-Care Medicare Rx: attestation letters only

What this document is

These are the only public documents for the three Express Scripts pharmacy benefit manager contracts held by the Teacher Retirement System of Texas: attestation letters to the Legislative Budget Board for CTR001987 (TRS-ActiveCare), CTR001988 (TRS-Care Standard) and CTR001989 (TRS-Care Medicare Rx), each four pages, and a one page TRS memo to file with the LBB data guide attached. An attestation letter is a form the agency head signs under Article IX, Section 7.11 of the General Appropriations Act to certify that the procurement followed the rules. It is not the contract.

What it does tell us

Each letter gives five facts: vendor, contract number, maximum amount, payment schedule and term. CTR001987, for TRS-ActiveCare, has a maximum of "$78,000,000.00," monthly payments, and a term from the later of signature or September 1, 2023 "to August 31, 2025; with four (4) one-year renewal options" (page 1), signed by Executive Director Brian K. Guthrie on 5/31/2023 (page 2). CTR001988, for TRS-Care Standard, has a maximum of "$12,000,000.00" and CTR001989, for the TRS-Care EGWP plan, "$84,000,000.00," both running from the later of signature or January 1, 2024 to December 31, 2025 with four one year renewal options (page 1 of each), both dated 9/15/2023.

Each attachment lists the same twenty service categories the contract's "Deliverables/Performance Guarantees" fall into, from retail, mail order and specialty network management through "Market Checks," "Formulary Management" and "Manufacturer Coupons/Patient Assistance Programs" (page 3). The risk statement says the contract "ensures deliverable timeliness with the inclusion of Performance Guarantees, a strong liquidated damages penalty for nonperformance, and internal validation process for invoices" (page 4). So we know performance guarantees, liquidated damages and market checks exist. We cannot read any of them.

The memo to file is the most telling page. TRS writes that its "contracts are paid for with non-appropriated funds," that under the LBB data guide "TRS is not required to upload contract documents," and that "TRS will not be uploading additional contract documents" (page 1). It then gives instructions for an open records request to [email protected] or by fax to 512-542-6426 (page 1). The TRS contracts list gives later end dates than the letters, August 31, 2026 for CTR001987 and December 31, 2026 for the other two, which suggests renewal options have since been exercised. The letters cannot confirm that.

Why it cannot be scored

Not one clause of any of the three agreements is public. The maximum amounts tell us the ceiling on payments to the vendor, not what the TRS-ActiveCare and TRS-Care plans or their members pay for drugs, and not who keeps rebates. Without the agreements, the pricing exhibits, the performance guarantee schedules and the rebate definitions, the checklist cannot be applied to any of the three.

TRS has said in writing that it will provide contracts on request. A Texas resident, teacher or retiree can email [email protected] under the Texas Public Information Act and ask for the executed agreements CTR001987, CTR001988 and CTR001989 with Express Scripts, Inc., including all exhibits, fee and pricing schedules, rebate terms, performance guarantees and liquidated damages provisions, and any renewals or amendments. If TRS withholds any part as confidential, the request should ask that the withheld portions be identified so the rest can be read.