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PBM Audits Move Fast. Start Preparing Your Defense Today!

Don’t Wait! Build a relationship with an Experienced Pharmacy Law Team

One of the more stressful parts of going through Pharmacy Benefit Manager (PBM) audit is that, by the time the average pharmacy hires experienced pharmacy law attorneys to defend their business, there may only be two weeks or less to formulate a successful response.  When you are notified of an audit, you can protect your pharmacy against hundreds of thousands of dollars in recoupment and network termination if you leverage the advice of experienced counsel early.  Before you are the next victim of final audit results that characterize your business as fraudulent, take your revenues, place you on a payment suspension, or terminate your enrollment, prepare to address PBM audits and build a relationship with an experienced pharmacy law team.

Understand the Basis for the Audit and Respond Accordingly

Although many states have enacted laws that govern PBM audit practices, the PBMs effectively ignore these requirements.  That is because these laws all have an exception that states that where the PBM has a reasonable basis to suspect that a pharmacy has engaged in fraud, willful misrepresentation, or abuse, the protections for pharmacies do not apply.  The language of these exceptions to pharmacy protections varies from state to state.

For example:

Cal. Bus. & Prof. Code § 4431(a)
Nothing in this chapter shall apply to an audit conducted because a PBM . . . has indications that support a reasonable suspicion that criminal wrongdoing, willful misrepresentation, fraud, or abuse has occurred.
O.C.G.A. § 26-4-118(f)
“[The Pharmacy Audit Bill of Rights] shall not apply to any investigative audit which involves fraud, willful misrepresentation, or abuse.”
Tex. Ins. Code § 1369.252
Tex. Ins. Code § 1369.265
“This subchapter does not apply to . . . a PBM administering pharmacy benefits under: (1) the state Medicaid program; (2) the federal Medicare program.” 

“A PBM is not subject to the deadlines for sending a report . . . if, after reviewing claims data, written or oral statements of pharmacy staff, wholesalers, or others, or other investigative information, including patient referrals, anonymous reports, or postings on Internet websites, the . . . PBM suspects the
. . .  pharmacy committed fraud or made an intentional misrepresentation.”

If PBM’s follow state audit regulations, you may have rights you can exercise if you know where to find them and the right levers of private and public influence and control to pull.  If PBM’s disregard those laws claiming that they suspect your pharmacy of fraud, waste, or abuse—regardless of whether it provides evidence for the allegation—you will face strict deadlines, receive minimal due process, and face overwhelming documentation guidelines.  It is important to know your rights and to effectively assert them early in the process.

Identify and Gather Evidence Immediately 

One of the most common complaints that pharmacies facing PBM audits make is that there is too little time to gather evidence to refute discrepancies.  Boesen & Snow regularly hears from pharmacies facing PBM audits that have been underway for months before the pharmacies finally realize that they cannot face this challenge alone, without experienced pharmacy law attorneys protecting their rights.  Late responses provide PBMs with contractual leverage over pharmacies because Provider Manuals routinely include audit procedures that allow PBMs to disregard evidence that pharmacies have not timely submitted.  PBM demands for documentation and evidence such as patient and prescriber attestations can take weeks to gather and each PBM will have its own particular documentation standards.  Knowing the documentation guidelines for the types of discrepancies you have can give you a head start on defeating a PBM audit.

Develop Corrective Actions When Discrepancies Arise

If a PBM audit reveals a failure to comply with the Provider Manual, develop and implement a Corrective Action immediately.  PBMs are familiar with common weak spots in pharmacy operations, especially if your company has numerous locations enrolled.  Your business can face a cascade of audits from one location to the next, all asking for documentation to exploit the same vulnerabilities that were identified after the first audit.  Understanding the contractual obligations and the authority that the PBM wields for any given issue is critical.  Once you understand your rights, protect them with developing policies and procedures to ensure pharmacists and pharmacy techs remain in compliance and that your operation can produce evidence of that compliance on demand.  Quick action to devote resources to compliance will also mitigate any violations if your pharmacy is forced to appear before a Termination Appeal Committee, in an arbitration, or in court.

PBM Audits Move Fast.  Start Raising Your Defenses Today.

Contact Boesen & Snow today to set up a free initial consultation to discuss your PBM questions and concerns before they grow to threaten your business. We will help you assess and attack the situation early so you can put it behind you faster.

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