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Attorney General Marty Jackley

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Attorney General Jackley Announces Final Settlement with EpiPen Manufacturer

FOR IMMEDIATE RELEASE:  Friday, August 18, 2017      
CONTACT:  Sara Rabern (605) 773-3215   

PIERRE, S.D. –  Attorney General Marty Jackley announced today that South Dakota has agreed in principle to join the United States and other States to settle allegations against Mylan Inc. and its wholly-owned subsidiary, Mylan Specialty L.P. (collectively “Mylan”). 

"We will continue to preserve the integrity of the Medicaid program," Jackley said. “This settlement agreement helps ensure that Medicaid can continue providing critical health services to those most in need.”

The settlement will resolve allegations that Mylan knowingly underpaid rebates owed to the Medicaid program for the drugs EpiPen® and EpiPen Jr.® (“EpiPen”) dispensed to Medicaid beneficiaries.  Under the settlement, Mylan will pay $465 million to the United States and the States.  The States will share $213,936,000 of the total settlement. 

The total portion of the settlement amount recovered by South Dakota is $456,397.56, of which $234,689.47 will be retained by the federal government as the federal Medicaid share. The remaining $221,708.09 will go to the state general fund to offset alleged Medicaid damages in this case.

Specifically, this settlement resolves allegations that from July 29, 2010 to March 31, 2017, Mylan submitted false statements to the Centers for Medicare and Medicaid Services (“CMS”) that incorrectly classified EpiPen as a “noninnovator multiple source” drug, as opposed to a “single source” or “innovator multiple source” drug, as those terms are defined in the Rebate Statute and Rebate Agreement.  Mylan also did not report a Best Price to CMS for EpiPen, as that term is defined in the Rebate Statute and Agreement, which it was required to do for all “single source” and “innovator multiple source” drugs.  As a result, Mylan allegedly submitted or caused to be submitted false statements to CMS and/or the States relating to EpiPen for Medicaid rebate purposes, and underpaid its EpiPen rebates to the State Medicaid Programs.  

A National Association of Medicaid Fraud Control Units (“NAMFCU”) Team participated in the settlement negotiations with Mylan on behalf of the states and included representatives from the Offices of the Attorneys General for the states of California, New York, North Carolina, South Carolina, Washington, and the Commonwealths of Massachusetts and Virginia. 

The South Dakota Medicaid Fraud Control Unit and the South Dakota Department of Social Services assisted in recovering the settlement money.