Frier Levitt was recently successful in having a Board of Pharmacy case against a pharmacist and retail pharmacy dismissed. Underlying the Board of Pharmacy action was a PBM audit that alleged unprofessional conduct against the pharmacy and its pharmacist owner. The case arose when the PBM made a complaint to the State Board of Pharmacy against the pharmacy over alleged fraud, waste and abuse, and specifically, inventory shortages, member denials, patient safety concerns, and the waiving of member cost share, all related to an audit the PBM had recently conducted on the pharmacy. Despite the pharmacy’s exhaustive appeal response to address the alleged discrepancies in the PBM audit, the PBM continued to maintain its position and uphold the discrepancies. What was most concerning was the PBMs’ allegation that the pharmacy waived member cost share despite the pharmacy’s submission of significant information that they did in fact collect copayment in full from this patient. As a result of this discrepancy, the pharmacy proceeded to seek an attestation from the patient in support of her copayment, a typical form of documentation otherwise required by the PBM for such discrepancies. However, coupled with the previous inquiries from the PBM, the patient expressed concern over the continued and multiple requests relating to prescriptions and did not offer additional support to the pharmacy. Instead, the patient expressed safety concerns over the continued attempts by the pharmacy and PBM to contact her. Ultimately, due to the unresolved discrepancies despite the pharmacy’s efforts, the PBM filed a complaint with the State Board of Pharmacy.
Our experience has been that an all-too-common PBM method for recouping large monetary amounts and excluding pharmacies from their network involves reaching out to a pharmacy’s patients to seek verbal denials of the patient’s receipt of their medications by asking misleading questions. Unfortunately, , PBMs are oftentimes persuasive and deceptive enough to obtain those denials from a pharmacy’s patients, particularly when PBMs use terms such as “investigation” or “fraud, waste, and abuse.” Such denials are frequently overturned when the pharmacist contacts the patient directly to provide clarifying context. In fact, it is a normal and standard procedure (as documented in the PBMs’ own Provider Manuals) that when a pharmacy receives a notice of a patient denial, the pharmacy is to seek its own patient attestation and submit that as documentation to the PBM to overturn the denial. Faced with false accusations of patient denials, pharmacists are left to obtain their own documentation to rebut these allegations. We have repeatedly seen such denials obtained from patients who did not even realize they were denying having received their medications or did not even speak to an auditor. Often, with documentation such as patient and/or caregiver attestations, patient denial discrepancies are reversed. Unfortunately, that did not occur in this case. In this case, the Pharmacy and Pharmacist sought to contact the patient to resolve the alleged patient denial. The Pharmacist’s efforts to contact the patient and subsequent interactions are very consistent and commonplace for any pharmacy faced with such an audit by the PBM. However, for the PBM to proceed to disparage the Pharmacist to the State Board of Pharmacy constituted inequitable conduct.
Fortunately, this pharmacy sought Frier Levitt’s assistance to resolve this matter and through effective representation that involved providing significant information and documentation to the State Board of Pharmacy, Frier Levitt was successful in having the case against the pharmacy and pharmacist dismissed.
Having a complaint filed against a pharmacy’s or pharmacist’s license MUST be defended. Any adverse decision may be reportable to the National Practitioner Data Bank and can affect future employment. This case stresses the importance of having experienced legal representation who can provide a concise response to the allegations which directly address the issues raised. Contact Frier Levitt if you need help with a complaint by a licensing board or if you are engaged in a PBM audit that may implicate Board of Pharmacy discipline.
