Be Conscientious When Refusing to Dispense (or Bill Insurance)…

No pharmacy should be forced to dispense prescriptions below their acquisition cost. With the effective date of the CMS Final Rule regarding DIR fees in 2024, we suspect that pharmacies will see an increased number of prescriptions paid below cost and PAAS National® wants to support you and help you steer clear of PBM scrutiny, where possible.

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While there are many states that allow pharmacies to refuse dispensing below their acquisition cost, this typically only applies to commercial claims (including ERISA, thanks to Rutledge v. PCMA). The decision was made not to pursue Medicare Part D preemption in the Rutledge case, so state laws may be harder to enforce with PBMs on Part D (and Medicaid) claims underwater– but we still recommend pushing the issue with the PBMs. On generics, make sure you’re filing MAC appeals, even it feels like it falls on deaf ears. PAAS also recommends complaining to your respective insurance commissioner or PBM oversight entity – if they’re not hearing complaints from pharmacies, they think regulations are working.

In talking with pharmacy owners across the country, we know many pharmacies are refusing to dispense GLP-1 agonists. Not only is supply sporadic, but WAC discounts from wholesalers are lacking and pharmacies are seemingly losing money with every dispense (not to mention the potential audit risk – see December’s Newsline Zepbound Means Decreased Audit Risk…Right?).

PBMs will not (knowingly) contract with a pharmacy who is refusing to dispense a medication (outside of state law allowances); however, there are a few provisions when a pharmacy can adhere to PBM Provider Manuals while refusing to dispense:

  1. Prescription does not meet legal requirements.
  2. Prescription is fraudulent.
  3. Prescribed medication may cause a patient safety concern and pharmacist exercises their professional/clinical judgment (including when products are prescribed for off-label uses).
  4. Medication is out of stock or unavailable.

Ozempic® and Mounjaro® being prescribed for off-label use is an acceptable method for refusing to dispense, however difficult that conversation with the patient might be. Don’t feel obligated to dispense the Type II Diabetes (T2DM) products if Wegovy® or ZepboundTM are unavailable; it’s an audit risk and likely not worth your trouble. Refusing to dispense GLP-1s for T2DM when supply is available is a slippery slope. Telling patients you can’t dispense the medication because of reimbursement issues might turn them into your advocate – and work against you at the same time.

There are numerous situations that may alert a PBM to a network pharmacy’s refusal to bill insurance, some bring more scrutiny than others.

  • Loyal patients that leave the pharmacy without medication may call their PBM to advocate for the pharmacy to be paid more so they can receive their medication.
    • Remember that certain PBM contract “gag clauses” are still in effect – while pharmacies are permitted to notify patients when your cash price is lower than the patient’s copay, pharmacies are still generally prohibited from discussing PBM reimbursement with patients.
  • Patients that submit a receipt to their PBM for reimbursement as they paid cash at the pharmacy counter – particularly if the PBM can see a claim was paid and then reversed at the pharmacy.
  • Patients may submit a receipt to their PBM because they were charged an additional amount beyond their copay (aka “balance billed”) due to low reimbursement.

Consequences that may stem from a pharmacy’s refusal to bill insurance may include a threatening PBM phone call, a “breach notification” letter requiring pharmacy to respond and attest that the violation will not be repeated, or potentially network termination (egregious situations).

PAAS Tips:

  • Refusal to bill insurance based on cost may be a violation of the Provider Agreement and create some backlash if the PBM becomes aware of the situation.
    • Using tact with patients can help avoid putting your pharmacy under the microscope
      • Be careful telling patients you’re refusing to dispense based on reimbursement
      • If a medication is back-ordered, simply explain the situation
        • Telling patients you don’t stock GLP-1s (by choice) puts the onus back on the pharmacy should a patient complain
      • Prescriptions for off-label use can be refused on clinical grounds (and audit risk), especially with Federal payors
    • NCPA has provided some practical tips for independent pharmacies struggling with cash flow (click here).

Eric Hartkopf, PharmD