Pharmacy Alert: Major PBMs to Rescind COVID-19 Waivers as Public Health Emergency Nears End

Three years ago, many PBMs enacted exceptions and waivers to their respective Provider Agreements and Manuals that would have otherwise limited the ability of participating pharmacies to provide services by way of mail to members during the COVID-19 pandemic. Now, with the Public Health Emergency (“PHE”) ending on May 11, 2023, the same PBMs are reevaluating their waivers and reinforcing the previous terms and conditions of the network.

Prior to the COVID-19 pandemic, pharmacies participating in the retail networks of these PBMs were required to obtain patient signatures upon the pick-up or delivery of prescriptions to verify receipt by the patient and the validity of the claim, and a failure to maintain and provide these signature and delivery logs could render a claim “unclean” and ultimately result in the recoupment of the amounts paid to the pharmacy or further action. However, in the wake of COVID-19 and strict social distancing guidelines and lockdowns, many PBMs waived this requirement to obtain a signature from the patient. Instead, many PBMs allowed proof of trackable delivery information or a brief statement that read “impacted by COVID-19” on the delivery or pick-up log to satisfy the requirement of obtaining patient signatures. In addition, under these waivers, many PBMs allowed retail pharmacies to service patients by mail (i.e. FedEx, USPSP, UPS, third-party couriers, etc.) instead of in-person or by way of a delivery driver, as was required prior to the pandemic.

However, with the PHE expiring on May 11, 2023, many PBMs have begun issuing notices to their network pharmacies about the expiration of these waivers related to mailing and patient signatures. For example, OptumRx recently issued a notice to network pharmacies in direct response to the PHE expiring next month stating that the pharmacies are no longer permitted to mail prescriptions to patients and must revert to in-person pick-ups or hand delivery in accordance with their Provider Manual. Pharmacies must also adhere to signature log and delivery requirements that were enforced prior to any COVID-19 waiver that otherwise exempted them from such requirements.

Pharmacies can expect that other PBMs will follow suit and soon rescind their COVID-19 exemptions, and to that end, any pharmacies that adjusted their procedures in response to and in reliance of these waivers should verify that theses waivers are still active and be aware of their expiration. Upon the expiration of these waivers, pharmacies will once again be expected to maintain compliance with the previous terms and conditions of their Provider Agreements/Manuals. Failure to do so is likely to result in adverse actions from PBMs against those pharmacies, including recoupments, assessment of additional fees, and restriction or denial of network access.

How Frier Levitt Can Help

Frier Levitt is actively assisting pharmacies in navigating COVID-19 waivers implemented by several PBMs and their expected expirations. Our team of experienced life sciences and pharmacy attorneys are available to assist you in ensuring compliance with reinstated PBM Provider Agreement and Manual terms that were waived due to the pandemic. If your pharmacy requires assistance in this regard or for more information, contact Frier Levitt to speak to an attorney.