ALERT: MAINE STATUTE PROHIBITING POST POINT-OF-SALE CLAWBACKS TAKES EFFECT

Recently, a new law went into effect in Maine that prohibits an insurance carrier or Pharmacy Benefits Manager (“PBM”) from imposing post-point of sale fees, like Direct and Indirect Remuneration (“DIR”) fees against Maine pharmacies.  The law is an amendment to 24–A M.R.S.A. § 4317, which regulates health carrier contracts with pharmacy providers, and provides that effective January 1, 2021, any new or renewed contract between a pharmacy and insurance carrier may not contain a provision that purports to directly or indirectly hold the pharmacy responsible for any fee related to a clean claim:

(1) That is not apparent at the time the PBM/carrier processes the claim;

(2) That is not reported on the remittance advice of a claim adjudicated by the PBM/carrier; or

(3) After the initial claim is adjudicated by the PBM/carrier.

The statute expressly pertains to contracts made between the pharmacy and the carrier “either directly or through an intermediary.” Thus, it seems that the legislature in Maine had PBMs in mind when it provided this clarifying language in the statute. This new law is a very positive development for Maine pharmacies as PBMs and other payors continue to develop new ways to clawback monies from pharmacies. It is imperative that Maine pharmacies take advantage of this law to protect themselves from unlawful PBM/payor practices that will otherwise go unchecked. 

HOW FRIER LEVITT CAN HELP

Frier Levitt attorneys have vast experience leveraging state laws and regulations against PBMs and other payors to protect pharmacies from abusive practices.  If a PBM is forcing your pharmacy to agree to a new or renewed contract containing DIR or other post-point of sale fees, contact us today.

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