Johnson & Johnson is denying claims in a whistleblower lawsuit, which was joined by the US government, and charges the healthcare giant with paying kickbacks - in the form of rebates and educational grants - to the Omnicare nursing home pharmacy so its Risperdal antipsychotic would be prescribed more often. The lawsuit also alleged J&J’s Janssen unit hid the payments from Medicaid to avoid reporting a ‘best price’ that would have triggered rebates to the agency (background).

In a filing this week, J&J asked a judge to dismiss the January 15 lawsuit by saying the government is arguing that allowable rebates are actually illegal under the Anti-Kickback Statute. “This case is a remarkable attempt to attack common discounting arrangements that are expressly protected under federal and state law,” the healthcare giant maintains. Meanwhile, Omnicare last fall settled civil claims that it accepted kickbacks by agreeing to pay $98 million, although the pharmacy never addmited liability (see here).

Nonetheless, J&J maintains that offering customers higher rebates based on market share or usage in hopes of winning formulary placement is not out of the ordinary. The government and the whistleblower, former Omnicare pharmacist Bernard Lisitza, “seek to penalize (J&J) for the use of standard and lawful formulary and disease management practices that the federal and state governments themselves routinely use,” J&J argues. “Today, rebates remain standard industry practice and are absolutely essential to our health care system.”

The US didn’t charge Omnicare made any factually false claims for Medicaid reimbursement or falsely certified conditions were met to participate in the program, according to J&J, which also charged the government failed to link kickback claims to improper switching of patients to Risperdal without the approval of doctors.

“Their response misses the point of the government complaint,” Michael Behn, Lisitza’s lawyer, tells Bloomberg News. This “ignores the overwhelming evidence that the point of Johnson & Johnson’s payments was to steer nursing home patients to Risperdal.” Lisitza claims he was fired after complaining about patient switching.

One exhibited contained in the lawsuit appears to raise the issue of off-label promotion (see this).