Call to Action
We constantly evaluate Pharmacist emails and phone calls to uncover new PBM audit abuse issues. We recently learned of a disturbing audit practice by Express Scripts, Inc. (“ESI”). We are performing due diligence to evaluate claims against ESI. We seek your help to gauge the frequency of these abusive audit practices.
“MD Contests Prescribing” Is a Boondoggle for ESI
ESI retracts money because “MD Contests Prescribing”. ESI says that it contacts prescribing physicians to confirm prescriptions. ESI often does not notify pharmacists that either it has contacted the physician or that an audit is ongoing with respect to the prescription at issue. Physicians often demand that ESI produce a HIPAA-compliant authorization before responding to the PBM. ESI does not provide the authorization, but instead concludes that “MD Contests Prescribing”. You know how that story ends.
“MD Contests”? Well, "No action or documentation is accepted post-audit for this discrepancy type."
As to “MD Contests Prescribing” discrepancies, ESI’s provider manual states that “No action or documentation is accepted post-audit for this discrepancy type." Thus, the pharmacy has had absolutely no opportunity to participate in the audit process or to submit proofs to demonstrate the validity of the “discrepant” claims. Often the MD has prescribed and ESI retracts the funds without the pharmacy having the ability to challenge ESI’s incorrect audit finding. By contrast, both CVS and Medco permit pharmacies to provide responsive documents when physician denies prescribing. When it comes to “MD Contests Prescribing, ESI does not.
Meaningless Grievance Procedure
A second general audit abuse relates to the timing of ESI’s retraction of money from pharmacies. Based on the questionable “MD Contests Prescribing” discrepancy, ESI designates the claims as “discrepant”. ESI sends a letter advising of its intention to retract money for the “discrepant” claims. This letter is ESI’s first communication setting forth its audit findings and the pharmacy’s first indication that an audit has occurred as to the “MD contests Prescribing” prescription. ESI’s discrepancy letter often does not enclose a spreadsheet or other information identifying the discrepant claims. Pharmacies are sometimes given a gross (non-itemized) value for “discrepancies”. The pharmacy is left wondering which prescriptions the “MD Contested”. ESI’s failure to itemize each “MD Contests” discrepancy is ironic because ESI’s “grievance procedure” requires pharmacists to complete a separate Grievance Notice and submit to ESI as to every claim the pharmacy wants to permitted to submit documents to challenge ESI’s audit. ESI’s Provider Manual grants a pharmacy 30 days from the date of the “final audit report” to submit a Grievance Dispute Notice and documentation to challenge ESI’s audit. Despite this 30-day window, ESI begins retracting the money for the discrepant claims before expiration of the 30 days. ESI’s practice differs from the other major PBMs (e.g., Medco, Caremark) which generally wait to retract any money from a pharmacy until after: (1) the pharmacy has submitted responsive documents, and (2) the internal appeal process ends.
No Class Action-ESI Contract; Arbitration
ESI’s arbitration agreement forbids class action. So, we must pursue each individual pharmacy’s claims in a separate arbitration matter. Because ESI’s manual requires that ESI pay a pharmacy’s attorneys fees if the pharmacy is successful, we are interested in pursuing individual arbitrations. If pharmacies have proof that the MD did in fact prescribe, we will handle these matters on a contingency fee basis.