Valid Prescriber/Patient Relationships and Marketing Concerns

• 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:
  • November 2022 article, OIG Telehealth Fraud Concerns, for information on the OIG report
  • November 2021 article, Telemedicine Audits: Are Your Prescriptions Legitimate?
• To get started with your customizable FWA and HIPAA Compliance program contact PAAS National^® today, (608) 873-1342 or info@paasnational.com.