Part 4 of 4: Abusive PBM Audit Practices (Bona Fide Prescriber-Patient Relationship)
During a pharmacy audit, Pharmacy Benefit Managers (“PBMs”) often request the pharmacy to submit documents demonstrating that prescriptions were prescribed pursuant to a bona fide prescriber-patient relationship. If the pharmacy is unable to provide such documents, PBMs will take back the full amount of reimbursement paid to the pharmacy on the prescription-drug claim even when the prescriptions were facially-valid, consistent with state and federal law, and when the patient had already received the medication. This audit practice has been on the rise in the recent months.
Importantly, the types of documents that PBMs demand from the pharmacies to prove that there exists bona fide prescriber-patient relationship range from contemporaneous medical records to attestations from prescribers. It is axiomatic that the pharmacies do not have access to and do not maintain such documents as part of the pharmacy’s records. In fact, many states (if not all) do not require the pharmacies to maintain such records. Furthermore, the claims examined by PBMs during an audit involve prescriptions that were filled and dispensed by the Pharmacy at least a year ago, which makes it even more challenging for the pharmacy to obtain records from the prescriber. To make matters worse, we have seen instances where PBMs insisted that prescribers’ attestations must be written on the prescriber’s prescription pads. What constitutes a bona fide prescriber-patient relationship often varies from state to state and is dependent on the facts. Therefore, the pharmacies should be cognizant of the current laws and regulations, and they should implement a robust record-retention practice.
The upward trend in demanding the pharmacies to prove bona fide prescriber-patient relationship is an unnecessary audit-practice (when the prescriptions are facially valid and compliant with applicable federal and state laws) that only benefits PBMs. In the event that the pharmacy fails to provide the requested documents, PBMs will clawback the reimbursement paid on a claim in its entirety. Thus, such egregious audit-practice and subsequent clawback will place another layer of financial burden upon the pharmacies, many of which are already in financial trouble due to various self-serving schemes implemented by PBMs.
How Frier Levitt Can Help?
If your pharmacy is facing an audit and/or subsequent recoupment from PBMs, contact us today to speak to an attorney. Our Life Sciences team has the tools and experience to assist pharmacies in their audit disputes and to advise clients on proactive measures to prevent audit recoveries.