Recently, in a string of unrelated requests, State regulators and Attorneys General have begun submitting investigative requests to pharmacies exploring the pharmacies’ practice of requesting prescriptions, typically for topical pain ointment or cream, directly from a patients’ treating physician. These investigative requests have typically been initiated at the behest of the treating physicians themselves, claiming among other things their patient does not have a diagnosis that warrants the use of the requested prescription drug product or that the pharmacy has engaged in the unauthorized practice of medicine.
Typically, a pharmacy will purchase a number of leads generated by a marketing company that often utilizes an off-shore call center to contact patients who have previously submitted their contact information to be contacted via an online form. Often these patients come across these contact forms while searching for information related to health insurance coverage, disease state information, or therapy protocols for a specified ailment such as diabetes mellitus. After submitting one of these forms, which includes an express contact authorization, the patient will receive a phone call from the marketing company’s off-shore representative, who is often a layperson, requesting additional information. During this seemingly innocuous conversation the patient will be asked if they experiences some sort of condition that results in the experience of pain such as peripheral neuropathy. After the patient acknowledges experiencing pain, the marketing representative will ask if the patient would like an ointment or cream, to be sent by an undisclosed pharmacy, to treat their pain and if the patient agrees this lead is sold to a pharmacy who will then fax a prescription authorization request to the patient’s specified doctor.
These agreements with these marketing companies are rife with potential legal pitfalls that can subject the requesting pharmacy to unnecessary scrutiny and prosecution by State regulators and Attorneys General. Given the complexity of today’s healthcare laws and regulations, pharmacies would be wise to consult an attorney to help safely navigate the pharmacy through consummation of such an agreement. Should your pharmacy wish to engage in any marketing agreement, contact Frier Levitt today to speak to an attorney.
