With the potential of losing Anthem as its largest single customer, Express Scripts (ESRX) has created multiple tactics to terminate network independent pharmacies in an effort to drive prescription volume to their own mail order and Specialty Pharmacies.
An example of one such tactic being employed by ESRX utilizes the limitations of pharmacy practice itself. In July 2016, ESRX made a minor amendment to an innocuous section of its Provider Manual regarding Formulary Overview and the effects of this modification are starting affect otherwise compliant network pharmacies which are now receiving termination notices for conduct not entirely within their control.
The July 2016 amendment modified the following phrase: “Network Provider’s pharmacists should make their best effort to dispense the Formulary drug and/or product” to “Network Provider’s pharmacists must make their best effort to dispense the Formulary drug and/or product”. With this modification and starting sometime in August 2016, ESRX started sending network pharmacies notices to cease and desist dispensing high volumes of non-formulary products and demand network pharmacies to adopt and report its measures that network pharmacies will take ensure the network pharmacy is using its “best efforts” to effectuate compliance with this term.
In response, network pharmacies complied with ESRX’s request and set forth varied operating procedures to satisfy ESRX’s request. Now, however, ESRX is terminating those very same network pharmacies due to their proposed measures purported ineffectiveness, many of which involved contacting the prescriber to inform the prescriber that generic alternatives are available and documenting the encounter. As many pharmacists know, and indeed this author agrees, the pharmacist’s scope of practice, outside some collaborative practice arrangement, is limited to advising and counseling a prescriber on the clinical aspects of the prescriber’s selected drug regimen for a given patient and the measures taken by network pharmacies were as far as the practice of pharmacy in a retail setting allows. Ultimately it is the prescriber’s decision whether to move forward with a particular drug regimen, albeit off formulary.
ESRX has taken notice of this regulatory limitation on a pharmacist’s scope of practice and has begun using it to its own advantage to terminate independent network pharmacies whose only choices are to fill and dispense the prescriber’s selected drug regimen, which in most instances ESRX ultimately approves through its prior authorization process, and possibly face termination or reject the patient which contractually they are prohibited from doing. Either option is potentially detrimental to network pharmacies.
It is essential pharmacies take action and protect their rights. Frier Levitt has successfully defended and reversed ESRX’s termination of several network pharmacies who have been affected by ESRX’s conduct and is committed to defending independent pharmacies against aggressive PBM tactics and the network terminations resulting therefrom. If you or your pharmacy have received a notice to cease and desist or have received a notice of termination by ESRX, it is important that you act swiftly to ensure that your legal rights are protected. Contact Frier Levitt today to speak with an attorney.
