COMMUNITY PRACTICE

State pharmacy boards watching Medco lawsuit

The U.S. Attorney's lawsuit against Medco Health Solutions alleges that the nation's largest pharmacy benefit manager routinely violated pharmacy practice acts. And that has the full attention of the state pharmacy boards charged with overseeing the mail-order operations currently under a legal cloud.

Medco mail-order operations in Florida, Massachusetts, Nevada, and Texas were cited in the suit filed in U.S. District Court by the federal prosecutor in Philadelphia on Sept. 29 (see Drug Topics, Oct. 20). Allegations include destroying scripts, letting nonpharmacists perform pharmacist functions, and failure to counsel patients. The prosecutor is seeking triple damages and $5,000 could be added for each false claim arising from the PBM's contract for the federal employee Rx benefit.

It's not clear whether any state pharmacy boards have taken action so far in response to the Medco lawsuit, said Carmen Catizone, executive director, National Association of Boards of Pharmacy. He suspects that authorities are waiting for the suit to be heard and a decision rendered.

"In situations where you have federal action pending, the states usually stand back and wait so as not to jeopardize the federal actions," said Catizone. "The reverse is supposed to be true, but in some instances the feds think they are more important than the states and come in like Elliott Ness. Once the decision has been made, you'll see a flurry of activity and states taking action against Medco facilities in their states."

The Massachusetts pharmacy board is "very closely" monitoring the federal case, said executive director Charles Young, R.Ph. Medco has moved its mail-order facility out of the state and is now beyond the board's jurisdiction. However, he added, "We're definitely watching the government case as it builds to see if it leads to any pharmacists who may have engaged in improper conduct."

The Texas pharmacy board is likewise keeping an eye out for developments in the case, said Gay Dodson, executive director. Medco no longer has a pharmacy in Texas but maintains a call center that processes scripts.

"All the allegations are from some time ago, so it's kind of hard to go in now and find that stuff without the [prosecutor's] evidence," said Dodson. "Some allegations are things you wouldn't necessarily find on inspection unless you knew what to look for. Some allegations would not be violations of Texas law, some would. We haven't really digested all of them yet."

The U.S. prosecutor's charges "lack merit," Medco said in a prepared statement at the time the lawsuit was filed. The

statement also noted that the PBM's mail-order pharmacies are regularly inspected by state pharmacy boards and that insurance would pay for any claims arising from the suit. It was later announced that the company, not insurance, is liable for the claims.

Allegations of Medco's violations of state pharmacy practice acts include the following:

• Prescriptions were destroyed, falsified, and canceled so Medco could avoid penalties for not meeting shipping deadlines spelled out in contracts.

• Pharmacy technicians performed functions that must by law be performed by pharmacists or under a pharmacist's direct supervision.

• Working under the pressure of an hourly quota system to review scripts, R.Ph.s avoided Rxs that had issues requiring professional judgment and analysis.

• Pharmacists were intimidated to discourage calls to physicians on unclear prescriptions and failed to refer questionable scripts to the doctor call unit.

• In violation of the counseling mandate, pharmacists were not allowed to discuss drug switches with any patients.

• Nonpharmacist personnel were allowed to adjudicate, dispense, or cancel prescriptions without review by a pharmacist.

• Nonpharmacists in both the doctor call unit and those in the drug utilization review unit fabricated telephone call records to maintain hourly quotas, completed physician calls without having a pharmacist verify the information, changed prescriptions without a pharmacist's intervention, and falsified records to show calls were made when they had not been placed.

• At a Tampa facility, the nonpharmacist director of pharmacy practice used the pharmacy computer operating system to alter Rx records after hours.

Carol Ukens

 

Carol Ukens. State pharmacy boards watching Medco lawsuit. Drug Topics Nov. 3, 2003;147:40.