Frier Levitt attorneys have noticed an increasing trend where Pharmacy Benefit Managers (PBMs) are cracking down on their retroactive review of completed prior authorizations (PAs). Specifically, PBMs are handing down investigation findings citing discrepancies related to a pharmacy’s role in obtaining PAs and subsequently threatening adverse action, including termination from the PBM’s network. The PA process is a cost-control process in which licensed healthcare providers obtain approval in advance of the patient qualifying for coverage of the prescription. Obtaining PAs has become common place and the procedures required for obtaining the authorizations are relatively clear and accessible. Regardless, PBMs are using deceptive tactics to exploit the process in order to terminate pharmacies and collect exorbitant fees.
False and Misleading Prior Authorization Allegations
Over the past several months, PBMs have made sweeping allegations related to the role pharmacies play in obtaining PAs for patient prescriptions. Through these allegations, PBMs assert that pharmacies are engaging in the practice of submitting false and/or misleading statements in order to wrongfully obtain PAs for prescriptions at the PBM’s expense. More concerningly, Frier Levitt has witnessed firsthand PBMs all but ignoring comprehensive supporting documentation, including prescriber attestations confirming the prescriber’s role in completing the PA process and denial of the allegations. However, PBMs will respond to notify pharmacies that they will be terminated from the PBM’s network, suggesting that they were never willing to accept supporting documents to reverse the adverse findings.
Pharmacies should be aware that failure to provide truthful and accurate information during the PA process puts pharmacies at risk of multiple forms of disciplinary actions including, but not limited to, criminal or civil penalties under applicable state and federal laws.
Online Prior Authorization
In addition to the fraud allegations, PBMs have specifically highlighted pharmacies’ role in obtaining e-prior authorizations. In some instances, pharmacies have submitted the PA requests themselves or even hired third parties to submit the PAs either through the pharmacy directly or on behalf of the prescribers. When carrying out these submissions, pharmacies often represent that they are the prescribers themselves or as agents of the prescriber when in fact the physicians nor their agents reviewed, signed, or submitted the PAs at issue. Importantly, submitting PAs in this manner is not without risk, and has been the cause of many audit discrepancies leading to network suspensions or terminations. Many PBMs put restrictions in place which prohibit pharmacies from submitting a prior authorization while acting as a prescriber. As such, pharmacies should be cautious when taking part in the PA process as PBMs have been known to enforce restrictions on the pharmacy’s involvement in the PA process.
Specifically, our attorneys have seen numerous cases in which PBMs allege that pharmacies are signing onto the online platforms that generate and process PAs and are impersonating healthcare providers, using personal emails in order to obtain PAs for expensive prescriptions. In one case, a pharmacy was wrongfully accused of the above action and the pharmacy promptly received prescriber attestations denying the allegations and confirming that the prescriber never provided its personal email for the pharmacy to utilize. The PBM failed to accept the attestations and continued to press the pharmacy, further stating that it had contacted the relevant prescriber(s) and confirmed that the pharmacy had wrongfully submitted the PA through fraudulent means. At the same time, the prescriber notified the pharmacy that the PBM had called their office and complained of the PBMs abusive tactics. Upon identifying the contradicting information, the PBM, who was previously unwilling to meet and confer on the matter, agreed to engaging in a conversation with our attorneys on the pharmacy’s behalf, and Frier Levitt was successful in averting the threat of termination. Such events illustrate the critical importance of engaging with knowledgeable healthcare attorneys to uncover and combat harmful PBM tactics to exhaust all avenues, regardless of the PBMs willingness to engage in dispute resolution procedures.
How Frier Levitt Can Help
Frier Levitt is ready and able to assist you in successfully challenging PBM abuse of your pharmacy. Our life sciences attorneys are prepared to provide guidance as your pharmacy prepares for audits as well as take an aggressive approach to fight for your rights following adverse and inaccurate findings. If you have questions or need help fighting adverse PBM actions, contact us to speak to an attorney.
