Frier Levitt attorneys successfully challenged a national PBM’s attempt to terminate an independent pharmacy located in Texas. The PBM attempted to terminate the pharmacy on the basis of discrepancies alleged to have been identified during an audit. Specifically, the PBM alleged patient denials of requesting or receiving the prescriptions submitted by the pharmacy, as well as its alleged failure to comply with the mailing restrictions of its provider agreement. However, under the guidance of Frier Levitt attorneys, the pharmacy was able to successfully negotiate terms to allow the pharmacy to continue its participation in the network. With respect to the prescriptions which its patients were alleged to have denied requesting or receiving, the pharmacy worked to obtain written attestations from the relevant patients confirming the legitimacy of the services received.
In addition to the submission of clear evidence demonstrating that the pharmacy received explicit authorization from its patients to dispense the relevant medications, as well as confirmation of their receipt of these medications, Frier Levitt attorneys also emphasized that the pharmacy’s practices ensured that authorization and patient receipt was always confirmed by the pharmacy. Additionally, Frier Levitt emphasized that the mailing practices that the PBM took issue with were completely valid under Texas law, and therefore insufficient to justify its exclusion from the network. Despite this overwhelming evidence, the PBM initially decided to uphold the pharmacy’s termination. However, a PBM’s decision to uphold a termination need not be final. Even following the conclusion of a dispute, many PBM agreements provide pharmacies with the ability to push for further resolution of a matter through arbitration, as was the case here. In the end though, the arbitration ultimately never came to pass, as Frier Levitt attorneys were able to leverage the potential arbitration to push the PBM to resolve this matter without a third-party. Accordingly, with the help of Frier Levitt, the pharmacy and the PBM were able to agree on terms that would permit the pharmacy to continue to participate as a provider in the PBM’s network.
While a provider agreement does often restrict the ability of a pharmacy to operate, as demonstrated in this case, provider agreements can afford pharmacies certain rights in regard to the resolution of disputes between themselves and the PBM. Accordingly, pharmacies should confirm what these rights are and be ready to exhaust all options available to them, not only when faced with termination, but also audit findings and other allegations of wrongdoing.
How Frier Levitt Can Help
Closer to the end of the year, it is expected that PBMs will be assessing the performance of their providers and taking steps to terminate any pharmacies which are deemed to be non-compliant with the terms and conditions of its provider agreement. If you are concerned about the potential termination of your pharmacy, or have recently been terminated by a PBM, Frier Levitt can help. Contact us today to speak to an attorney.
