Drugmakers want a say in court to defend a rebate pilot in the 340B drug discount program that hospitals are trying to stop.

The legal battle over the 340B rebate pilot might feel familiar — it’s the second time the HHS has tried to kickstart the program, the second time hospitals have sued to block it and the second time drugmakers have fought to intervene.

The initial saga last year concluded with hospitals winning their case and the HHS scrapping the pilot.

But in July, the Trump administration said it would try again to require rebates instead of upfront discounts on drugs in 340B. Hospital groups sued again to stop the pilot this month, arguing once again that the switch would threaten the financial viability of safety-net providers in the program.

Now, drugmakers are hoping to have their day in court, after a judge declined their request to intervene in the last lawsuit. To succeed this time, they must demonstrate that there’s a plausible risk the HHS might fail to adequately represent their interests.

In a court filing last week, Boehringer Ingelheim — a Germany-based manufacturer that makes drugs including Jardiance, Ofev and Tradjenta — said it’s losing an average of $3 million per week due to providers’ use of duplicate discounts in 340B and other federal programs.

Boehringer Ingelheim expects to lose more when the CMS’ maximum fair price, which places a cap on what Medicare and plans pay for select drugs, kicks in for Ofev and Tradjenta next year.

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