PBM Complaints to State Boards of Pharmacy: Expansion to Prescription Errors and General Operations

Question: What could be worse than a PBM audit?

Answer: A PBM audit coupled with a State Board of Pharmacy investigation.

As we have written on previously, Frier Levitt is witnessing an uptick in PBM-initiated complaints to State Boards of Pharmacy (BOP). Initially, many of these complaints were based upon allegations of fraud/abuse in claims processing and/or inventory shortages. These complaints then branched out to allegations involving contractual issues, like co-pay collection. Most recently, however, the complaints involve allegations related to prescription errors, including minor clerical errors and general pharmacy operations. Some examples of conduct identified as prescription errors include:

  • Incorrect information is entered on the label of the prescription container
  • A prescription is refilled without the patient’s consent
  • A prescription is dispensed with the wrong drug
  • The wrong physician’s name is entered

In some cases, the pharmacists believe that the complaints involved overreaching motivated by PBM attempts to terminate providers from networks, especially in states with strong “any willing provider” and/or “fair and uniform pharmacy audit” laws. The trend toward PBM-initiated BOP complaints for seemingly unrelated issues involving all aspects of pharmacy operations would support that interpretation.

This new trend adds a new layer of concern for pharmacy’s responding to audits.  Moreover, when a pharmacy receives a complaint from a BOP, it is important to work with an experienced attorney who can address the matter in a conciliatory rather than adversarial manner. Importantly, do not disregard timelines. In certain jurisdictions (e.g., Washington, D.C.), fines for violations can be doubled for missing a deadline to respond.  While PBM complaints usually involve a PBM audit, in some cases the complaint is only tangential to an audit. Even when a PBM audit is resolved, upon receipt of a complaint against a licensee, the BOP is legally obligated to open an investigation into allegations which involve violations of Pharmacy Practice Acts.

Finally, in addition to the time and expense involved in providing appropriate documentation to refute the allegations, it is important to keep in mind the ancillary consequence of disciplinary action for those holding licenses in multiple states. “Reciprocal actions” are disciplinary actions by other BOPs which the licensee is licensed based solely on the action of the initial board. Not only is there an affirmative duty to report disciplinary action by a BOP, but the duty to report is often prior to any license renewal and in many states has a time limitation for disclosure as short as 10 days.

How Can Frier Levitt Help

Frier Levitt has increasingly and successfully been assisting pharmacies and individual pharmacists in defending against and resolving BOP complaints initiated by PBMs. Our pharmacy and PBM teams regularly represent pharmacists in investigation and defense of both PBM audits and BOP complaints. Contact us today to speak to an attorney.

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