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    OIG finds proposed per-fill fee arrangements suspect

    Advisory Opinion 14-06 critical of pharmacy payment structure

    Ned MilenkovichNed MilenkovichThe Office of the Inspector General (OIG) for the United States Department of Health and Human Services (HHS) recently issued an opinion rejecting a proposed per-fill arrangement between a specialty pharmacy and local retail pharmacies. Although Advisory Opinion No. 14-06 is limited to the situation presented to the OIG, it provides insight as to how the OIG may treat similar per-fill contractual agreements. Pharmacies should review their current per-fill arrangements to determine whether they contain a pattern of facts similar to the those described in the opinion and below.

    The specialty-pharmacy requestor that is the subject of the opinion has both a nationwide distribution channel and several freestanding pharmacies. The specialty pharmacy dispenses drugs for cancer, HIV/AIDS, multiple sclerosis, and hemophilia that are reimbursable by federal healthcare programs and are not available at all retail pharmacies.

    Kickback? Or fee for services rendered?

    Under the arrangement presented to the OIG, the specialty pharmacy would have compensated retail pharmacies for “support services” provided on a per-fill basis. In other words, the specialty pharmacy would have paid the retail pharmacies upon receiving (1) the initial prescription for the specialty drug and (2) each subsequent refill request.

    Under the arrangement, the retail pharmacies would have provided support services, including collection of patient information, patient counseling, and acceptance and transfer the prescription to the specialty pharmacy.

    The retail pharmacy would have been required to inform the patient with the specialty-drug prescription that pharmacies other than the specialty pharmacy could fill the patient’s prescription. However, the specialty pharmacy would not have paid the retail pharmacy for any support services provided if the specialty pharmacy did not receive a patient’s specialty-drug prescription.

    Violations of the anti-kickback statute can occur when remuneration — anything of value — is “paid purposefully to induce or reward referrals” of prescriptions payable by a federal healthcare program. Penalties for violating the anti-kickback statute include fines of up to $25,000, imprisonment for up to five years, or both, as well as automatic exclusions from Medicare, Medicaid, and other federal healthcare programs.

    Ned Milenkovich, PharmD, JD
    This article is not intended as legal advice and should not be used as such. When legal questions arise, pharmacists should consult with ...


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