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Government Investigations: When Not Responding is a Non-Option

It is not uncommon for multiple, or even parallel, investigations into the same provider to take place concomitantly. To be sure, oftentimes, a pharmacy or physician practice is served with a government's investigative demand for documents or testimony only to be served with another demand by a different investigating agency or governmental body shortly thereafter. These investigations can be criminal, civil, or administrative in nature.  A recent case out of...

Express Scripts Leverages Limitations on Pharmacy Practice to Terminate Network Pharmacies

With the potential of losing Anthem as its largest single customer, Express Scripts (ESRX) has created multiple tactics to terminate network independent pharmacies in an effort to drive prescription volume to their own mail order and Specialty Pharmacies. An example of one such tactic being employed by ESRX utilizes the limitations of pharmacy practice itself. In July 2016, ESRX made a minor amendment to an innocuous section of its Provider...

Overturned Conviction Casts Doubt on “Lack of Medical Necessity” to Support a Criminal Claim of Healthcare Fraud

Treating physicians and expert witnesses often have differing subjective viewpoints on the "medical necessity" for treatment or prescribing of drugs. But, when can a prosecutor's belief that a physician’s decision "lacks medical necessity" support a finding of criminality? A recent Federal court decision may cast doubt on prosecutors' legal theories relating to health care fraud cases involving alleged "lack of medical necessity." Approximately six months after a jury convicted former...

Two States Enact PBM Licensure Requirements

Many states have enacted legislation to reform the business practices of the Pharmacy Benefit Manager (PBM) industry. For example, a number of states have enacted such laws as the Fair & Uniform Pharmacy Audits, PBM Regulation/Transparency, and Anti-Mandatory Mail Order. However, it appears that some states have required even more from PBMs—specifically, a state licensure requirement. Of note, both Kentucky and New Mexico have issued a new PBM licensure requirement...

PHARMACY ALERT: Roche Begins Issuing Demand Letters Seeking Repayment for Test Strips Claims

Pharmacies have begun receiving demand letters from Roche Diagnostics Corp. and Roche Diabetes Care, Inc. ("Roche'') for repayment of money as it relates to claims for vials/boxes of Roche Accu-Chek blood-glucose test strips. Roche states that, based on data gathered from rebate claims submitted by insurers, pharmacies received reimbursement for test strips intended for retail sale while actually dispensing discounted products, including test strips that are marked as Durable Medical...