PBMs have increasingly begun targeting the usage of manufacturer sponsored coupon programs and copayment assistance programs in both desktop and on-site audits of pharmacies. As a result of these audits, PBMs are alleging discrepancy findings, and recouping money from pharmacies, based on a number of different factors, including, but not limited to, the usage of a coupon on a non-FDA approved drug. Of course, there are certain limitations on when a pharmacy may apply a coupon to a prescription in order to reduce the copayment amount. For example, pharmacies are generally prohibited from honoring coupons for prescriptions paid for in whole or in part by state and or federal health care programs (i.e., Medicare, Medicaid and TriCare). However, there is no state or federal law that specifically restricts the usage of a copay coupon relating to non-FDA approved drug so long as use of the coupon is otherwise compliant with state and federal laws, rules and regulations. Thus, there are scenarios where the PBM contract is the sole limitation on use of coupons and, PBMs often have anti-competitive financial motivation for limiting the ability of independent pharmacies from competing.
In addition to governing state and federal laws, pharmacies must also be fully abreast of all contract obligations with the PBMs, particularly as they relate to copayment collection. This is especially true due to the risk of a PBM alleging improper copayment collection, which may result in substantial recoupment and even network termination. If you received an audit from a PBM targeting the pharmacy’s use of a coupon or copayment assistance program, contact Frier Levitt today to speak to an attorney.