The FEHBlog and spouse are vacationing this week on Block Island which is off the southern coast of Rhode Island (and is part of that state). It’s lovely here.

As the FEHBlog predicted and CNBC reports, Carl Icahn has waved the white flag on this effort to block Cigna’s acquisition of Express Scripts.

Speaking with CNBC about the decision, Icahn took a conciliatory note, saying: “The crossover was too big and given what the advisory firms said we realized there was no way we could win. Sometimes you have to be flexible. There’s no point in fighting just to fight. We won three proxy fights in a row which is really hard to do, so you lose one. It’s the way of life.”

Following up on another Weekend Update post, New Mexico Health Connections on Monday did bring another lawsuit seeking a preliminary injunction against CMS’s ACA risk adjustment rule. The New Mexico co-op which would owe CMS $5.6 million in risk adjustment contributions under this rule, is challenging the final rule for 2017 benefit year, issued on July 30, not the proposed rule for the 2018 benefit year, which was issued last week. The New Mexico co-op’s press release explains that

“We contend that the emergency regulation continues a risk adjustment formula that disadvantages small, new, and lower-priced health plans in favor of their larger, more expensive competitors,” Marlene C. Baca, Health Connections CEO, said in a written statement.

In other ACA litigation news, the federal district court for the Northern District of Texas has set September 10 as the date for a hearing on the preliminary injunction motion by a group of states lead by Texas to strike down the ACA in the wake of Congress’s decision to zero out the ACA’s individual mandate penalty beginning next year. Another group of states has intervened as defendants to support the ACA and the Justice Department has filed a brief partially support both sides.

Finally, the Hill reports that the CVS Health’s PBM arm “Caremark will allow its clients to exclude coverage of drugs with extremely high launch prices under a new program the company said is aimed at pressuring manufacturers to lower drug costs.”

The new program will use specific methods of comparing the cost and effectiveness of certain medications. CVS said such analyses for the effectiveness of drugs are common in Europe, but don’t exist in America. 

“No one but manufacturers have, until now, had any control over the launch price of newly patented drugs. This new approach, harnessing the power of the market, could change manufacturer behavior,” CVS said in an announcement. 

CVS said the program will focus on expensive drugs that aren’t cost-effective, so medications that are deemed “breakthrough” therapies by the Food and Drug Administration will be excluded from this program.