And Here We Go Again: Express Scripts Targets Pharmacies, Citing “Validity of Doctor-Patient Relationship” as Justification for Reclaiming Payments From 2015

In what may be the latest version of blame-shifting, Express Scripts appears to be clawing back tens of thousands of dollars on 5-year-old Tricare claims for certain prescriptions, according to complaints recently received from PUTT members. 

​The Department of Defense made their dissatisfaction clear regarding Express Scripts’ failure to handle compounds appropriately, ultimately costing the government billions of dollars in 2015. Since then, the handful of pharmacies that had engaged in the fraudulent scheme were shut down and the pharmacy owners sent to jail.

However, Express Scripts appears to be ramping up its efforts to claim the money it lost on the government’s behalf by dredging up old claims and forcing innocent pharmacies to pay for the PBM’s past failure. 

At issue, according to Express Scripts, is the validity of the doctor-patient relationship. Express Scripts justifies reclaiming payments (taking back money for prescriptions) made 5 years ago by accusing pharmacies of not verifying the patient’s relationship with the prescribing doctor prior to filling the prescription. This rationale allows them to take payments back on claims on which Express Scripts itself failed to contain costs for the TRICARE program. 

This is an especially sticky situation for patients who pay their providers in cash or choose not to use their insurance. In instances of cash payments where there may not be a lengthy paper trail, patients and providers are effectively being told they must insert the PBM into the process or risk audits and punitive fines similar to the TRICARE takebacks. Patients, physicians and pharmacies shouldn't be forced to introduce an intermediary that’s irrelevant to the patient’s treatment if the patient chooses to pay out of pocket.

While Express Scripts’ “pharmacies should have known better” rationale is weak, it hasn’t stopped the company from helping itself to pharmacies’ bank accounts. Earlier this week several webinars took place, detailing how pharmacy owners can defend themselves against TRICARE clawbacks. Unfortunately, most pharmacy owners will incur legal expenses to fight these unwarranted takebacks.

Pharmacy owners’ frustration is palpable. While most patients’ prescriptions are electronically submitted by the physician’s office (in compliance with HIPAA), PBMs are now shifting the burden to pharmacies to verify doctor-patient relationships. What’s the point of medical record technology or paying “switch” and “transaction” fees if the process itself doesn’t prove the patient-doctor relationship? 

Our response is swift and direct: Express Scripts failed to do its job to contain prescription costs for the TRICARE program and is now attempting to shift the blame and the punishment to pharmacies. This is a common PBM practice: selling themselves as price negotiators and patient/plan protectors, only to point fingers when their failings are exposed. 

In the coming days PUTT will issue a formal statement to the media condemning Express Scripts’ actions and will contact the members of the Department of Defense, the Senate Finance Committee and House Energy and Commerce committees, asking members to account for why the federal government continues to award contracts to Express Scripts and other bad actors when there’s documented evidence of mismanaged taxpayer funds. 

PUTT will also be submitting Freedom of Information Act requests for the 2015 Tricare claims so we can attempt to understand how Express Scripts’ failure to properly manage compounded prescriptions has become the problem of community pharmacies to handle.

It is well-established that pharmacies do not control the prescriptions doctors write nor do they control PBM reimbursements (PBMs call that “proprietary” information!) These practices are strictly managed by doctors and PBMs respectively, as both groups’ trade associations have often publicly announced on digital platforms, in op-eds, and in testimony before Congress. 

To now attempt to hold pharmacies accountable for the lack of oversight by Express Scripts and a few “bad apple” pharmacies (which Express did NOTHING about) is another below-the-belt punch for the frontline healthcare providers who have loyally served this nation’s healthcare system.  

Community pharmacies did not create this problem and are not to blame for the actions of the primary, non-transparent entities whose contract with the federal government clearly stipulated their responsibility to properly manage taxpayer dollars.

The answer is simple: punish Express Scripts. Demand PBM transparency. It is the only way the broken prescription drug system will ever be fixed.