Recently, a major PBM has demanded that its network retail pharmacies submit an attestation agreeing to limit mail order and delivery services to 10% of its claims submitted to the PBM. The PBM is now requiring independent pharmacies to agree to this limitation or risk being terminated from network.
Attestations, or other forms of provider certifications, from PBMs must be taken seriously, and a failure to abide by the terms of such attestations may result in recoupment, network termination, and/or allegations of false statements by government agencies. As such, it is important to consult with knowledgeable legal counsel prior to signing any such an attestation.
These PBM actions must also be viewed against the backdrop of State and Federal laws. The PBM’s limitation on a retail pharmacy’s ability to provide mail order services runs counter to CMS’ recent Proposed Rulemaking and Policy Changes for CY 2019. In its proposed rule, CMS clarified its longstanding understanding of existing policy on a variety of items, including the “Any Willing Pharmacy Law.” In short, CMS indicated that PBMs are not to exclude pharmacies from retail pharmacy networks solely on the basis that they, for example, “maintain a traditional retail business while also specializing in certain drugs or diseases or providing home delivery service by mail to surrounding areas.” CMS stated further that it is “inappropriate to classify pharmacies as ‘mail-order pharmacies’ solely on the basis that they offer home delivery by mail,” instead, affirming the definition of “mail order” pharmacy as one delivering extended days’ supplies of covered Part D drugs via common carrier at mail-order cost sharing. These recent pronouncements, along with other legal principles, may provide an avenue for independent pharmacies to challenge abusive PBM conduct.
If you have received attestation notices from PBMs, or other communications seeking to limit your ability to mail prescriptions to patients, it is important you understand your rights and responsibilities. Contact Frier Levitt today to discuss potential options when responding to a PBM demand for an attestation.