Pharmacy Alert: Be Aware of Deadlines set by Express Scripts, Inc. to Appeal Absence of Prescriber-Patient Relationship Denials, As Well as New Documentation Required to Appeal

Express Scripts, Inc. (“ESI”), has switched gears once again in its recoupment efforts that originally began on April 7, 2020, [https://www.frierlevitt.com/articles/esi-recoupment-letters-absence-of-prescriber-patient-relationship/] and re-initiated by ESI on September 1, 2020 [https://www.frierlevitt.com/articles/esi-tricare-re-initiating-recoupment-actions/]. ESI unilaterally recoups funds from pharmacies based on an alleged “absence of Prescriber-Patient Relationship”, which oftentimes can and should be refuted by pharmacies. The deadline to appeal ESI’s recoupment has shifted once again and is now January 11, 2021.  Through ESI’s letters, the Defense Health Agency (“DHA”) has indicated another shift in its efforts and while the new guidelines may ease some of the burden on the pharmacies, Frier Levitt urges pharmacies to appeal the ESI action, regardless of the latest communication, as failure to address these allegations has the potential to result in significant consequences. 

ESI’s Reformatted Recoupment Action

ESI sent out its most recent batch of correspondence on October 13, 2020. After a two month stay beginning on June 25, 2020, at the direction of the DHA, and a new re-initiation letter on September 1, 2020, it does not come as a surprise that ESI, once again, switched gears. [https://www.frierlevitt.com/articles/service/pharmacylaw/esi-suspension-of-previous-recoupment-actions/]. The October 13th letter supersedes previous ESI letters, and ESI, at the behest of DHA, seemingly abandons the program abuse allegations initially outlined within its letter dated April 7, 2020. However, the claims outlined within the letter dated October 13th still allege the “lack of a patient prescriber relationship” as the basis for the recoupment action, which is, per ESI’s original recoupment letter, linked to program abuse.

In its October 13th Letters, ESI separates the pharmacies into three categories: those who have had no recoupments or offsets, those who have experienced partial recoupments or offsets, and those from whom ESI has made a full recoupment or offset as a result of this action. For the pharmacies who have not seen any recoupments or offsets, ESI has terminated the recoupment action and demands no further action from these pharmacies. For the pharmacies who have seen partial or full recoupments, ESI will allow the pharmacies to appeal by January 11, 2021 based on the list of claims that were recouped.

Pharmacies who have received the updated letter from ESI should first determine the category within which ESI has placed them. Regardless of the category, however – including if the pharmacy has not seen recoupments and does not have to appeal – the pharmacy should maintain any documentation collected for the claims at issue for their records and should respond to ESI’s recoupment action proving the validity of the claims at issue, irrespective of the termination of the recoupment action. In instances in which ESI has seemingly terminated all or part of the recoupment action, ESI leaves the door open and indicates the intention to re-evaluate the claims at a later date. As such, we recommend preparing a response to ESI now, for use at a later date. 

For pharmacies who have experienced partial or full recoupments or offsets relating to this action, the October 13th Letter changes the documentation required for appeal. Specifically, ESI is requesting documentation combatting ESI’s allegations relating only to claims for which ESI has already withheld remittance; these claims are itemized within ESI’s most recent correspondence. Additionally, where ESI had previously requested medical records (which are maintained by prescribers rather than pharmacies themselves), ESI has made it clear that, to combat ESI’s recoupment action, pharmacies will only need to provide documents which they maintain in the normal course of business.

In instances in which pharmacies have experienced any recoupment or withholding from ESI in this action – whether it be partial or full – we stress ensuring that such withholdings or recoupments are accurately reflected within ESI’s most recent letter to your pharmacy. Some pharmacies have reported discrepancies between the amounts ESI claims to have recouped or offset and the amounts actually recouped or offset. If, after a review of the documents, you note a discrepancy, we recommend referencing the discrepancy within the appeal and seeking the full recouped or offset amount from ESI, unless ESI has made payment on those recouped claims in advance of the pharmacy’s appeal.

Pharmacies who are appealing, irrespective of the new requirements, should still seek to address the lack of due process, the previous allegations and the new allegations in order to fully respond to the recoupment action. While ESI may have altered the recoupment action, it is still of the utmost importance that the pharmacy appeals any partial or full recoupments as a result of ESI’s action in a timely manner.

How Frier Levitt Can Help

Frier Levitt is dedicated to working with pharmacies to resolve any issues which arise because of these recoupment actions. If you have received the latest correspondence from ESI dated October 13, 2020, contact us to assist you in navigating the appeals process.

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