XDEA Numbers Have Been NiXed…but Not the Training

When you are preparing for an audit, a PAAS National® analyst has likely told you to ensure a prescriber’s Drug Addiction Treatment Act (DATA) 2000 Waiver ID, or XDEA number, is included on prescriptions for medications used to treat opioid use disorder along with their regular DEA number. Effective December 29, 2022, the date the Consolidated Appropriations Act of 2023 (“The Act”) was signed, the need for prescribers to have XDEA numbers to prescribe such medications has been eliminated.

Subsequently, on January 12, 2023, the DEA released an informational document. In it, they state their support regarding the policy reform, stating, “At DEA, our goal is simple: we want medication for opioid use disorder to be readily and safely available to anyone in the country who needs it [and] the elimination of the X-Waiver will increase access to buprenorphine for those in need.” The document goes on to state “going forward, all prescriptions for buprenorphine only require a standard DEA registration number” but cautions that state laws and regulations still apply.

The Substance Abuse and Mental Health Services Administration (SAMHSA) echoes the DEA’s sentiment, stating “all practitioners who have a current DEA registration that includes Schedule III authority, may now prescribe buprenorphine for Opioid Use Disorder in their practice if permitted by applicable state law…”

Despite the X-Waiver no longer being mandatory, the Act did enact a new training requirement. In Chapter 6 of the Act is Section 1263 entitled “Requiring Prescribers of Controlled Substances to Complete Training”. It discusses ways to meet training requirements, such as prescribers completing no less than 8 hours of training on the treatment and management of patients with Opioid Use Disorder in a variety of settings. Currently, DEA and SAMHSA are working together to implement the new training requirement and state that this requirement will not go into effect until June 2023.

PAAS Tips:

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  • PBMs and third-party payors are often mute on these topics, leaving pharmacies guessing on appropriate actions (and corresponding audit risk)
    • Comply with state and federal requirements for controlled substances
    • For prescriptions written prior to 12/29/2022, ensure the XDEA number is present on the prescription
    • If the pharmacy is filling/refilling a prescription written prior to 12/29/2022 and the provider did not have an XDEA number at the time, the prescription would likely be considered invalid by PBMs (and the DEA), and PAAS would suggest [conservatively] to get a new order from the provider

Beware: Caremark is Monitoring High Quantity Utilization and Atypical Dispensing Habits

Beyond traditional desktop, on-site, investigational or invoice audits, Caremark performs various compliance reviews. These compliance reviews may include:

PAAS National® has recently reviewed a second round of these Rx Claim Review notices from members. While new for Caremark, PAAS has identified multiple versions of the letter primarily focusing on two areas of concern:

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  1. Dispensed quantities of medications that are significantly higher than the average fill size
    1. Primarily seen with Diclofenac Gel 1%, Lidocaine 3% cream, Ketoconazole 2% cream and diabetic testing supplies (i.e., lancets, needles, strips, and syringes)
  2. Atypical dispensing activity (e.g., disparate prescriber to pharmacy ratio)
    1. Primarily seen with Duexis® and Pennsaid®

The brief, and poorly worded, letter states the pharmacy should evaluate the claims in question and consider whether the dispensing of these medications is appropriate. It concludes with “your cooperation is appreciated and will greatly assist us in our review”. Due to the ambiguous direction, pharmacies are unsure if they need to respond or provide any additional information or documentation to Caremark.

PAAS Tips:

  • The notices PAAS has reviewed do not require a formal response
  • Caremark wants the pharmacy to evaluate the claims
    • For claims listed as having a high quantity utilization, pharmacy can verify the quantity and days’ supply dispensed for appropriateness
    • For claims listed as having atypical dispensing habits, pharmacy should validate the claims are billed under the correct prescriber, that there is a valid physician-patient relationship, and that the prescriptions are not being solicited
  • Every pharmacy’s situation is different and PAAS can help provide perspective and next steps
  • See Caremark Expands “Aberrant” Language & Restricts Bulk Purchases from February 2022 Newsline for additional information on Aberrant Practices and Trends

Criminal HIPAA Charges Filed Against Compounding Pharmacy Sales Rep

Criminal HIPAA charges are not handed down frequently, but when an individual “knowingly” and inappropriately obtains and discloses a patient’s protected health information (PHI), they could face up to $50,000 in fines and up to one year in prison, according to 42 U.S.C. § 1320d-6. Additionally, if found guilty of obtaining or disclosing the information with the intent to sell, transfer, or use the PHI for commercial advantage, personal gain, or with malicious intent the penalties can increase up to $250,000 and 10 years in prison.

According to a October 20, 2022 Department of Justice press release, a former compounding pharmacy sales representative located in New Jersey is facing criminal HIPAA charges for obtaining unauthorized access to PHI with the intent to personally profit. The sales rep promoted compounded prescriptions and other medications which were subsequently filled by a Louisiana pharmacy. The sales rep and his co-conspirators knew which plans would reimburse significantly for certain compounded medications and the sales rep then recruited patients with that specific insurance. To do this, the sales rep gained access to a medical clinic where the doctor allowed him to have significant access to patient medical records. Since the sales representative was not an employee of the doctor’s office, he was not authorized to access the information without first obtaining proper release. The sales rep would then sift through medical records to identify patients with the sought-after insurance plan. The patient files would be tagged so the doctor could easily identify patients with the specific insurance plan so he knew whom he should prescribe the compounds. On occasion, the sales representative would even join the doctor and patient in the exam room as if he were employed by the medical office, which he was not.

Patients were targeted based on information illegally gained from within secure patient records, then they were prescribed and dispensed medically unnecessary compounded medications all as a result of this scheme.

Training staff to appropriately handle PHI, and discussing the consequences of mishandling PHI, is critical to preventing a breach and other unauthorized access to protected information—malicious or not. If you have not already taken advantage of the PAAS National® Fraud, Waste, and Abuse and HIPAA Compliance Program, now is a great time to reach out to a PAAS staff member to learn about the best program available to independent pharmacies. Ring in the New Year with confidence knowing that you have a method to provide your staff with comprehensive, community pharmacy focused HIPAA training.

Valid Prescriber/Patient Relationships and Marketing Concerns

With the U.S. Department of Health and Human Services Office of Inspector General’s (OIG) recent focus on telemedicine fraud, pharmacies may be wondering what their obligations are when determining a prescription’s authenticity – especially when it comes to whether a valid prescriber/patient relationship exists. Many PBMs, including Express Scripts, TRICARE, CVS Caremark, and OptumRx all have language in their provider manuals placing the responsibility on the pharmacy of ensuring a valid prescriber/patient relationship exists.

How can you determine if a prescriber/patient relationship is valid? Questions you may ask to verify this are:

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  • Does the patient regularly see this prescriber?
  • Does the patient live in the same area where the prescriber’s office is located?
  • Would you be able to obtain medical records to validate this relationship if needed?
  • Can you confirm the patient is aware of and requested the prescription?

Along with telemedicine, PBMs are also concerned about marketing practices of pharmacies. The provider manuals for Express Scripts, TRICARE, CVS Caremark, OptumRx, and Elixir all contain language surrounding what is not allowed and some, like Express Scripts, are known for using investigational audits to ensure compliance.

Prohibitions on certain marketing practices in these manuals include, but are not limited to:

  • Acquiring potential patients, either directly or from a third-party by referral, using door-to-door, telephonic or other cold-call tactics.
  • Obtaining the patient’s provider or billing information without the patient’s consent.
  • Using fraudulent, abusive, or deceptive television or internet advertisements or emails.
  • Contacting a patient or prescriber without a previously existing relationship.
  • Contacting or offering to contact a prescriber on a patient’s behalf without the patient’s express knowledge and authorization.
  • Obtaining a prescription from a prescriber by suggesting to a patient that the prescriber or patient’s health plan wants the patient to receive the medication without the prescriber’s knowledge and authorization.
  • Limiting a patient’s right to use a different pharmacy of the patient’s choice or use marketing techniques that may make a patient believe they are restricted to your pharmacy.

Pharmacies must remain vigilant and always conduct marketing practices in a manner consistent with their state laws, federal laws, and Medicare regulations and guidelines.

PAAS Tips:

  • Make every effort to confirm a patient authorized prescriptions coming from unusual prescribers
    • Consider, amongst other things, the prescriber’s scope of practice and location to patient/pharmacy
  • Know your state and federal laws surrounding marketing practices
  • See the Medicare Communications and Marketing Guidelines for specific guidance
  • Develop policies and procedures surrounding marketing practices to ensure compliance
  • See the following Newsline articles for additional tips:
  • To get started with your customizable FWA and HIPAA Compliance program contact PAAS National® today, (608) 873-1342 or info@paasnational.com.

Top 10 PAAS National Articles of 2022

2023 Fraud, Waste & Abuse and HIPAA Compliance Program Updates

PAAS National® continuously monitors legislative and regulatory changes that may impact your Fraud, Waste & Abuse and HIPAA Compliance Program. We keep a close eye on enforcement from the Department of Justice, Office of Inspector General, State Attorney Generals, and Office for Civil Rights to help ensure the program meets interpretative standards. Furthermore, PAAS works to keep pace with Pharmacy Benefit Managers as they continue to add credentialing requirements that can be extremely difficult, and a significant nuisance, to independent pharmacies.

The PAAS National® FWA/HIPAA Compliance Program has implemented changes to ensure pharmacies continue to have a robust program in place. PAAS FWA/HIPAA compliance members can login to the member portal to view the 2023 FWAC and HIPAA Updates

Administrators should review all Compliance tasks (located in the left-hand navigation on the PAAS Member Portal) at least annually to keep the program up-to-date and in compliance. Section 2.6 Updates of Policies and Procedures of your manual contains information on maintaining open lines of communication and the distribution of changes.

If you’re not a member of PAAS’ FWA/HIPAA compliance program, contact us today at (608) 873-1342 or info@paasnational.com to add the program for a discounted rate.

“We have been with PAAS for many years and added the FWAC/HIPAA material to our membership and as a compliance officer, I’ve never been more pleased with the program. If you have already made the best choice to have PAAS in your corner, then continue with the best for your FWAC/HIPAA needs.” – Member since 2010 from North Carolina

“PAAS National® Fraud, Waste, Abuse and Compliance educational sessions are unsurpassed. The PAAS National® Policy and Procedure manual that you create for your pharmacy is a must for all pharmacies to have for their staff. All of this keeps your pharmacy up to date with current pharmacy procedures and operations and ensure proper pharmacy practices going forward.” – Member since 2021 from New York

“A pharmacy without the compliance program does not have their bases covered and required work finished. I can sleep at night knowing this program keeps me protected and on task.” – Member since 2009 from Iowa

Natesto® Nasal Gel Pump – Bill It Right!

Pharmacies have begun to see more prescriptions for Natesto® (testosterone) nasal gel. Natesto® is indicated for primary hypogonadism and hypogonadotropic hypogonadism, whether those conditions were congenital or acquired. At this time, it is not approved for age-related hypogonadism or for male patient populations less than 18 years old.

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NDC NCPDP Billing Unit and

Package Size

Number of Actuations

in Package

Sprays Per Day
42667-5511-01 7.32 gm (Tube) 60 6

The recommended dose is 11 mg of testosterone (5.5 mg testosterone per nostril actuation) three times daily, preferably at the same time daily. Therefore, each package should be billed as a 10 days’ supply and a quantity of three packages would be dispensed for a 30 days’ supply, if prescribed as such. Despite needing to prime prior to initial use, no priming is necessary for the remainder of use and priming does not need to be factored in when computing the billed days’ supply.

PAAS Tips:

  • Natesto® is a Schedule III controlled substance. Ensure the hard copy is adherent to both your state and DEA requirements
  • Prescription should contain specific dosing, including indicating “in each nostril”, and frequency of use
  • Despite the package indicating “total contents: 11 g/ dispenser”, ensure your computer system accurately reflects the proper NCPDP billing unit and package size
  • Reference the PAAS Nasal Inhalers chart on the PAAS Member Portal

The Ballad of Snowbirds and Audits

The winter months have many pharmacies mailing prescriptions to their snowbird patients who leave their northern nests for more hospitable climates. Pharmacies want to keep these patients happy and coming back when the weather is nicer and may look to mailing maintenance medications to them when they have migrated out of state. Although these pharmacies may think they are doing the right thing for patient care, and their business, they may also be setting themselves up for audit failure.

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Unfortunately, this does not just apply to northern states with snowbird patients. Many states now have laws that require nonresident pharmacies to obtain a license to ship, mail, deliver, or dispense prescription medications into their states. Auditors take advantage of these laws to recoup money from well-meaning pharmacies who may not even know that mailing a prescription out of state is a problem! For pharmacies situated close to the state border, delivering into a neighboring state carries the same risks. PAAS National® has seen these claims cited as law violations with limited appeal options.

PAAS Tips:

  • Before mailing/delivering prescriptions out of state, it is a good idea to check with that state’s Board of Pharmacy to see if there are any licensure requirements for doing so.
  • Be aware of your contract obligations and which PBMs do not allow mailing of prescriptions to patients.
  • The COVID-19 pandemic had many PBMs make concessions to allow mailing during the Public Health Emergency (PHE). Keep up to date on concession expirations by downloading the PAAS COVID-19 PBM/Payers Concessions Chart.
  • Ensure you can prove, on an audit, the patient received their medication with tracking information that links to the prescription. See the January 2022 Newsline article, Mailing Prescriptions: How Do You Prove Patient Receipt?
  • Know the rules surrounding automatic mailing, especially for Medicare Part D patient, and review the September 2022 Newsline article, Automatic Mailing for Part D Patients, for specific information.

Start of New Year = Opioid Plan Rejects

PAAS National® analysts receive numerous calls at the start of the new year looking for guidance on opioid plan rejects. With the new year, many patients may be on a new Medicare Part D plan. Opioid prescriptions processed previously with no issues, may now reject at point-of-sale on the new plan.

With the opioid crisis on the rise, CMS acted in 2018 to closely monitor opioid use and safety of patients. Medicare Part D plans were required to implement opioid policies and work together with patients, prescribers, and pharmacies with this monitoring. These policies included real-time safety alerts at the pharmacy’s point-of-sale.

Here are the four Medicare Part D opioid safety alerts:

  1. Seven-day supply for opioid naïve patients
  2. Exceeding maximum dose of morphine to 90 MME (morphine milligram equivalent), including cumulative dosing
  3. Concurrent use of opioid and benzodiazepine
  4. Optional alert can be implemented by plan for cumulative opioid daily dose of 200 MME

In August of 2022, CMS through the Medical Learning Network (MLN) published A Prescriber’s Guide to Medicare Prescription Drug (Part D) Opioid Policies. This guide offers guidance to both prescribers and pharmacies for patients using opioid medications. Pharmacies should note, alerts that cannot be resolved at point-of-sale may require providing patients with a copy of the CMS-10147 Medicare Prescription Drug Coverage and Your Rights form. This form provides instructions for patient to work with their prescriber and their Medicare plan to expedite coverage for their medication.

Pharmacies have an obligation to

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follow plan alerts and guidelines for the safety of patients. Bypassing these restrictions not only put claims at risk of recoupment, but further scrutiny of your controlled substance dispensing practices. Split billing opioid prescriptions (i.e., billing part to insurance and cash payment for the remainder) is considered bypassing. When claims are not accurately billed to the Medicare D plan, proper monitoring cannot be done. PAAS does not recommend pharmacies split bill prescriptions to resolve rejects.

PAAS Tips:

  • Call plan for overrides or prior authorization when appropriate
  • Consult with prescribers about safety alerts and possible resolutions, e.g. changing medication or completing prior authorization paperwork
  • Prescribers unwilling to work with the pharmacy could be a red flag for the clinical appropriateness of their prescribing
  • PBMs can monitor and flag prescriptions that bypass plan limits
  • Charging the patient cash and not submitting claims could be considered non-compliance with the provider manual and could lead to network termination
  • Involving the patients in the resolution process may be necessary
  • See the CMS Medicare Part D Opioid Policies: Information for Pharmacists

Update: Medicare Part D Mandatory E-Prescribing Requirements for Controlled Substances – Final Rule

In our December 2021 Newsline article, PAAS National® alerted pharmacies to the delay in enforcement of Electronic Prescribing for Controlled Substances (EPCS) for Medicare Part D until January 1, 2023. CMS has finalized policies in the Calendar Year (CY) 2021 Physician Fee Schedule (PFS) and CY 2022 PFS Final Rule for requirements on EPCS shown in section 2003 of the SUPPORT Act. Notably, in the CY 2022 PFS final rule, CMS finalized four proposals related to EPCS:

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1. Compliance Action (Enforcement) Extension

  • Delayed enforcement on prescribers to no earlier than January 1, 2023
  • Prescribers prescribing for beneficiaries in LTC facilities were extended to January 1, 2025.

2. Electronic Prescribing Controlled Substance Percentage

  • At least 70 percent of a prescriber’s Schedule II-V controlled substance prescriptions must be electronically prescribed, except in cases where there is an exception or waiver in place.

3. Finalized Proposals to the Classes of Exceptions (as outlined by section 2003 of the SUPPORT Act)

  • For prescriptions issued where the prescriber and dispensing pharmacy are the same entity
  • For prescribers who issue <100 controlled substance prescriptions for Part D drugs per calendar year
  • Prescribers located in the geographic areas of an emergency or disaster
  • Prescribers who have received a CMS-approved waiver due to circumstances beyond the prescriber’s control

Note: there were no exemptions approved for prescribers issuing prescriptions to nursing facility patients (despite the delayed enforcement) nor hospice patients.

4. Limit compliance actions to sending a notice of non-compliance

  • During the CY 2023 if CMS believes the prescriber is violating the EPCS requirement.

The CY 2023 PFS Final Rule expands about this notice of non-compliance by clarifying two components. That CY 2023 compliance with EPCS requirements will be based on CY 2023 PDE data, that will not be evaluated until late CY 2024. Consequently, the non-compliance notice enforcement action has been extended through CY 2024. With CY 2025, CMS is planning more burdensome penalties that would apply to non-compliant prescribers.

PAAS Tips:

  • CMS will begin monitoring prescribers for EPCS starting in 2023 and continue through the end of 2024
  • If a prescriber is found to be non-compliant during the 2-year monitoring process, CMS will begin sending notices of non-compliance beginning in 2024
  • There are exceptions and waivers in place, noted above
  • Section 2003 of the SUPPORT act makes it clear that the EPCS requirement should not be construed as requiring a pharmacist to verify that a practitioner, with respect to a prescription for a covered Part D drug, has a waiver from the EPCS requirement under Part D
  • CMS is evaluating what the penalties will be for non-compliance and will start issuing those penalties 1/1/2025
  • Encourage non-compliant prescribers to register and attend the Introduction to the CMS EPCS Program Webinar hosted by CMS on January 12, 2023 from 1:00 – 2:00 pm ET to learn more information