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Why is this legal? PBM Contract Update

This post is going to be a short but very important update.


I got one of those blast faxes the other day from our favorite PBM about some contract updates happening at the beginning of the year. Most of the time I just throw those things away because they are usually small changes, like changes in BIN/PCN for a specific card, and don't really affect daily operations.


This one, though, was different.


I was notified of a new "Aberrant Quantities and Volume" provision, beginning in January, which allows the PBM to either chargeback eligible claims and/or terminate your contract if more than 25% of your dispenses are drugs on their "Aberrant Product List." How do you know when you've hit 25%? They get to measure it, of course! They wrote on the update that they will measure it with "number of claims, quantity dispensed, or dollars" at "(your favorite PBM)'s sole determination."


Of course, it is not unreasonable or unusual to have alerts to the PBM for abnormal dispensing quantities of drugs with a high potential for abuse; in fact, a search of this laughably long Medicaid manual (all 2073 pages!) specifically spells out misutilization of pharmacy services as the following:


"8.2.C. MISUTILIZATION OF PHARMACY SERVICES

Criteria include, but are not limited to, the following:

  • Utilizing more than three different pharmacies in one quarter.

  • Aberrant utilization patterns for drug categories listed in the Drug Categories subsection of this chapter over a one-year period.

  • Obtaining more than five prescriptions for drug categories listed in the Drug Categories subsection of this chapter in one quarter (including emergency prescriptions).

  • Utilizing multiple prescribing providers for drug categories listed in the Drug Categories subsection, including when prescribing providers provide services to the beneficiary as a private pay patient (e.g., beneficiary pays cash for office visits while using the Medicaid pharmacy benefit to obtain prescriptions)."

"Drug Categories" in this case is defined as opioids, muscle relaxants, benzodiazepines, etc.


The fax I got though, has a list where none of the drugs on it have high abuse potential. Plus, the pharmacy can be punished prior to any investigation to determine if the usage is reasonable. I work in an outpatient pharmacy, so even if opioids were on the list it would still be reasonable to expect our dispensing quantities to be higher than other pharmacies in town, given that we service large oncology and surgery practices.


Nonetheless, this new "Aberrant Product List" includes NSAIDs, lidocaine creams and ointment, omega-3's, and vitamins. They even have a specific NDC of gabapentin 300mg and metoprolol/hctz on the list. (Yes I know gabapentin has some abuse potential, but this is a specific NDC, not all gabapentin products).


In addition, the 25% dispensing threshold is not for any one of them, it is for all of them collectively. The PBM will "provide regular updates to the attached product list" - in other words, the list is going to change, so now we'll have a moving target to keep dispensing under 25%.


We all know that, realistically, it is impossible to control dispensing of a huge list like that. What are we supposed to do - refuse to fill meloxicam so we don't hit our threshold? Pay for third-party vendors to help us monitor it, just like we've now done with DIR fees?


The PBM will "monitor Providers on a monthly basis" and "will send notice...indicating a breach has occurred. Provider will have thirty days to cure the breach."


Again - how are we going to cure a breach? Back out claims until we're under their 25% threshold, even though we already dispensed them? Call the patient and tell them not to come back? Basically, there's no good way to "cure the breach."


While states have enacted legislation to some extent reining in abusive practices, this appears to be a new one that's worth keeping an eye on.