What Are the PBMs Doing Amid COVID-19 Crisis: Waivers from Strict Requirements May Exist for Independent Pharmacies
During this unprecedented time of the COVID-19 crisis, companies across every industry are taking immediate actions to help stem the spread of the virus and to ensure access to essential services. These immediate efforts are only that much more important in the healthcare context, in order to ensure uninterrupted access to medications and patient care, as well as to support the need for business continuity for healthcare providers during this pandemic. In this article, we explore some of the actions being taken by Pharmacy Benefits Managers (“PBMs”) that may enable network pharmacies to better serve their patients in these unprecedented times. In addition, we explore certain options available to pharmacies to seek additional waivers through CMS, Boards of Pharmacy and other agencies.
In terms of PBM action, the responses have varied. Some PBMs have attempted to take an active approach in addressing these issues.
As of March 13, 2020, CVS Caremark has announced that it is working with PBM clients to waive early refill limits on 30-day prescription maintenance medications. CVS Caremark has also announced that it is waiving the policy of its affiliated pharmacy, CVS Pharmacy, to charge for home delivery of prescription medications, and that it is actively working with clients who do not offer 90-day supply benefits to waive early refill limits on 30-day prescription maintenance medications. What is not clear, however, is whether CVS Caremark will extend this same leeway to independent pharmacies. Interestingly, CVS Caremark also announced it is setting new “appropriate” limits on the quantity of hydroxychloroquine (Plaquenil) and azithromycin (Zithromax Z-Pak) to be dispensed, based on reports that physicians are writing excessive quantities of prescriptions for these products for themselves or family members.
Express Scripts Inc. (“ESI”) has announced that, as of March 13, 2020, ESI has suspended all network pharmacy field and desk audits. Ironically, ESI’s suspension of audits does not, however, apply to ESI’s Fraud, Waste, and Abuse Investigations, which is what most of the recent ESI pharmacy requests have been primarily labelled as. Additionally, as of March 18, 2020 through April 30, 2020, ESI has also temporarily waived the requirement to obtain a signature if it is not available to due to COVID-19, so long as the pharmacy documents on the hard copy of the prescription or makes an electronic annotation to the prescription fill articulating the reason for the unavailability of the signature. With respect to delivered prescriptions, ESI’s documentation will need to contain member name, prescription number, and date of service or delivery.
Finally, OptumRx has announced that, effective March 10, 2020, it will temporarily suspend and not enforce the mailing prohibition during the national state of emergency due to the COVID-19 pandemic. OptumRx has stated that this suspension applies to retail pharmacies who require shipping or mailing of medications via common carrier (USPS, UPS, FedEx or local carrier service) to members and does not apply to central fill operations.
While certain PBMs have unilaterally take certain actions, certain state governments, such as Ohio, have taken even more significant approaches. For example, Ohio has placed a moratorium on all PBM audits in the state amid COVID-19 effective March 20, 2020, and continuing until the declared emergency is lifted.
At a national level, CMS recently released guidance on March 10, 2020 to Medicare Advantage Organizations, Part D Sponsors, and Medicare-Medicaid Plans on various issues surrounding COVID-19 to inform carriers of their contractual obligations and certain discretionary flexibilities in the administration of their benefit plans such as permitting maximum extended day supplies of medications, permitting adequate access to enrollees for covered prescriptions dispensed at out-of-network pharmacies, and permitting home or mail delivery of Part D drugs.
That said, in light of CMS’s directives and governmental action taken by some states, the current actions taken by PBMs may not be sufficient to remove the necessary barriers and restrictions to maintain the continuity of care provided by pharmacy businesses during this pandemic. Some of the actions and waivers provided by the PBMs are structured under the guise of enabling adequate healthcare/pharmacy access to patients, when their actions are, in fact, simply a suggestion of preferential treatment of their own PBM-affiliated pharmacies or an indication that PBMs will not refrain from conducting Fraud, Waste and Abuse audits as pharmacies scramble to provide necessary care.
How Frier Levitt Can Help
Frier Levitt is actively assisting pharmacies seeking waivers from State Boards of Pharmacy, PBMs and CMS. For more information on how to address these PBM practices, contact Frier Levitt to speak with an attorney