Use warranties, not outcomes-based agreements, to make payers whole when a gene therapy fails

Emad Samad

Published online March 9, 2023 at STAT+
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A decade ago, I had pegged gene and cell therapies as the next frontier. As an investment banker, I was sure they would someday change how patients were treated. But a question from a biotech CEO started me thinking about not only how to pay for them, but how to offer guarantees for these therapies to payers who rightfully wanted reassurances that they were paying for something that works for their beneficiaries.

In the spring of 2013, I had just visited a lab focused on gene and cell therapies at Baylor College of Medicine. Bluebird Bio, which would soon launch a successful IPO, had licensed its technology from the same lab and was about to announce a major collaboration with Celgene and Baylor.

I sent a presentation on one of the Baylor programs to the CEO of an immunotherapy company I banked at the time. I thought his company should license and develop the technology. On a call, he came out of the gate with this:

“I just have two questions for you, Emad. One, do you think this will really work? And two, if it does work, how the hell am I ever going to get paid?”

Use warranties, not outcomes-based agreements, to make payers whole when a gene therapy fails

I couldn’t answer his second question. A large upfront payment for a single-dose therapy that might not work was something the health care system couldn’t bear.

Later that fall, the Food and Drug Administration approved Sovaldi, a small-molecule cure for hepatitis C priced at $84,000 for a multi-week course of treatment. Despite providing the health care system with immense value by avoiding the high-cost complications of late stage hepatitis C, Sovaldi’s price caused panic and outrage across the country, leading to a Congressional investigation into Gilead’s pricing practices and the subpoena of more than 20,000 pages of internal corporate documents by a Senate committee.

CMS Rule Changes and The Payer’s Dilemma

A handful of gene therapies are now on the market, primarily for ultra-rare diseases. Yet there has been no substantial move on the part of manufacturers to change the commercialization patterns around these expensive therapies. As a category, gene therapies become less commercially viable with every approval of a multi-million-dollar single-dose therapy as the number of patients eligible for such treatments increase and payers are forced to make decisions on which therapies to prioritize with limited dollars.

Manufacturers have complained that statutory rules set by the Centers for Medicare and Medicaid Services around drug pricing has hampered their ability to innovate. But CMS has not been idle.

Anticipating the need to foster innovation, CMS issued groundbreaking rules in 2020 to encourage the use of value-based arrangements, payment plans, and insurance-based warranty solutions for expensive but potentially life-altering therapies. In doing so, it cleared the way for alternative payment models to emerge and a route for manufacturers to provide a financial recourse to payers when their therapy didn’t work for a specific patient.

Gene therapy manufacturers, however, have yet to take full advantage of the new rules for ultra-high-cost therapies, which would significantly increase patient access, give their products an advantage in the market, and avoid what is shaping up to be a repeat of the 2013 Sovaldi hearings but on a far greater scale.

Even if a million dollar gene therapy is 92% effective, every payer lives in the 8% margin of failure.

Right behind affordability, the greatest concern for payers of gene therapies is their durability. A recent survey commissioned by Octaviant Financial, the company I cofounded, queried large and small commercial and public plans covering 84 million lives. Payers revealed they have zero tolerance for therapeutic failure no matter how statistically low the risk is. They said that if a company is charging millions of dollars for a gene therapy and making claims of durability, it must stand by the efficacy of its therapy and provide a performance guarantee.

They also said that if one of two competing gene therapies offers a warranty, the terms of the warranty could be a tiebreaker for authorization, all else being equal between the two therapies.

The use of warranties makes sense to me. So it’s perplexing that gene therapy companies are using so-called outcomes-based agreements (OBAs) to provide refunds to risk-bearing payers instead of taking advantage of newer strategies made available through CMS’s 2020 rules.

Outcomes-Based Agreements vs Therapeutic Warranties

Outcomes-based agreements are part of a miasma of contracting strategies manufacturers put in place between themselves and payers or, more commonly, their intermediaries, like administrative services organizations and pharmacy benefit managers. Outcomes-based agreements are usually negotiated individually between the parties and are powered by rebates. If a therapy fails to meet the expectation of the OBA holder, it is paid a performance rebate. Because of the role of intermediaries, payment often does not make it to the actual end payer that holds the financial risk of using these therapies.

The leadership of gene therapy companies should realize that sophisticated gene therapies require an equally sophisticated approach to market access and reimbursement.

A major weakness of outcomes-based agreements is that rebate dollars are tightly controlled by pharmaceutical companies because they are treated as a concession to price and must be reported to the U.S. government to be averaged into the price the government pays for that drug, referred to in the industry as “best price.” Simplistically, if a manufacturer gives a $2 million refund to a payer for a $2 million therapy that fails, the manufacturer must report $0 for that sale.

Because of the tension introduced with best price, traditional OBAs rarely provide meaningful remuneration to payers, rendering them highly inefficient in providing financial recourse to payers when a therapy fails.

An often-overlooked component of OBAs is that they can lead to disparate patient access to expensive therapies. Those who belong to smaller self-funded payers struggle to gain access, since their plans do not have the scale to negotiate steeper rebates with manufacturers and decide not to cover the therapy as a result of projected costs and risks remaining too high.

Some outcomes-based agreements are engineered to pay out rarely, if ever. For instance, a biotech company could proclaim that its OBA will pay 100% back to the payer if the therapy fails within two years of therapy, but the failures during clinical trials were experienced in year three. Payers are realizing the devil is truly in the details when it comes to these agreements. Yet many market access teams at gene therapy companies continue to rely on decades-old rebating tactics like OBAs as if they are rolling out small molecule drugs.

In contrast, larger pharmaceutical companies and a handful of innovative gene therapy companies are taking a taskforce-oriented approach — leveraging market access, finance, legal, health economic outcomes, corporate risk, and government affairs teams — to evaluate and offer warranties for drug launches as allowed by CMS’s new rules.

Therapeutic warranties are insurance-based instruments funded by manufacturers that provide recourse to the warranty holder if a product does not meet predefined expectations. Unlike most outcomes-based agreements, which end up in the hands of middlemen, the warranty holder — in this case the entity that makes the decision to use the therapy and pays the bill — is entitled to the complete amount guaranteed by the manufacturer as stipulated in the warranty policy.

According to the new rules, the premium paid by the manufacturer to a third-party for a warranty program would be held against the best price, however the payout of the warranty — which could be in the millions — would not be held against it when the manufacturer complies with the new rules. This makes complete sense given the underpinnings of warranty programs and how the insurance industry actually operates.

An actuarial model is used to derive the warranty premium given three dimensions of the policy: duration of the warranty coverage, a benefit trigger, and the amount refunded to the payer if the benefit is triggered. The model considers the total addressable patient population and allows for manufacturers to consider the sporadic nature of rare disease risk and adequately compensate the minority of payers who may experience therapeutic failure as defined by the benefit trigger. The resulting premium is usually a fraction of the potential payout for a multi-million-dollar therapy, making well-structured warranty programs astonishingly capital efficient to comparable outcomes-based approaches for gene therapies.

In a competitive market, a warranty would be a major differentiator and accelerate commercial performance because payers would be more comfortable providing coverage for a gene therapy with a robust performance guarantee. A gene therapy manufacturer facing competition within an indication could even offer a warranty and a rebate, while the competition depletes rebate dollars by reserving them for OBAs that payers know are worthless. By issuing a single or a handful of warranties across all payers, manufacturers avoid the hand-to-hand combat they conduct with payers and their intermediaries over OBAs — saving valuable time for patients.


It may be too late for late-stage gene therapy companies relying on business-as-usual to avoid public backlash and outright market failure for cavalier approaches to gene therapy commercialization. The leadership of gene therapy companies still formulating commercial strategies should realize that sophisticated gene therapies require an equally sophisticated approach to market access and reimbursement. Look at it this way: even if a million dollar gene therapy is 92% effective, every payer lives in the 8% margin of failure.

Payers are already nervous about high price tags for gene therapies, and gene therapy companies that offer dubious to no performance guarantees will only further undermine market confidence.

Offering warranties is just one of several strategies gene therapy makers should employ to ensure open and full access to their products.

Emad Samad

Emad Samad is President and CEO of Octaviant Financial, Inc., a firm specializing in innovative payment models and therapeutic warranties. Follow Octaviant Financial on LinkedIn, visit, or email for more information.

Correspondence: Octaviant Financial, Inc. 317 George Street, Suite 320. New Brunswick, NJ 08901. 732-675-9927.