For some time now, both the U.S. Department of Justice ("DOJ") and the Drug Enforcement Administration ("DEA") have signaled their interest in pursuing audits and enforcement actions against pharmacies and pharmacists. With quality problems at compounding pharmacies and the debate around opioid addiction dominating headlines and the political race, this increased enforcement is no surprise. Four separate cases illustrate why we say 2016 is going to be the year of pharmacy enforcement.
In December 2015, Palisade Pharmacy in Palisade, Colorado agreed to pay $60,000 in civil penalties to settle allegations by the U.S. Attorney's Office in Colorado that it violated various provisions of Controlled Substances Act (CSA) and the Combat Methamphetamine Epidemic Act of 2005 (CMEA).
Palisade allegedly committed 480 violations of the two (2) Acts including
- shipping controlled substances to unregistered locations;
- failing to verify addresses on DEA order forms to the corresponding addresses registered with the DEA;
- filling prescriptions for controlled substances despite missing required information on the face of the prescription;
- failing to maintain, record, and retain complete and accurate records relating to the distribution of controlled substances; and
- selling List I chemical products without a valid self-certification certificate.
In addition to paying the penalty, Palisade signed an administrative settlement agreement agreeing to enhanced reporting and training requirements, as well as a three-year surrender of its CMEA certification that allows it to sell List 1 chemicals. According to Barbra Roach, Special Agent in Charge of the Drug Enforcement Administration's Denver Field Division, "The diversion of pharmaceuticals and chemicals for illicit gain and profit is nothing more than drug trafficking. Those occupying positions of trust and responsibility, such as medical practitioners and pharmacists, have to be held accountable when they chose to operate illegally and threaten the safety of our communities."
Nashville Pharmacy Services
On January 5th, the U.S. Attorney's Office (USAO) for the Middle District of Tennessee announced that it had reached a settlement with Nashville Pharmacy Services, LLC. and its owner Kevin Hartman. The pharmacy, which specializes in HIV and AIDS-related medications, allegedly overbilled Medicare and TennCare for pharmacy services, and will now pay up to $7.8 million to make those allegations go away. The whistleblower in this case, Marsha McCullough, was a former order entry technician who worked for Nashville Pharmacy Services.
According to the USAO, from February 2011 to May 2012, Nashville Pharmacy Services:
- automatically refilled medications without a request from the beneficiary, their physician, or a person acting as the agent of the recipient, in violation of TennCare's contractual requirements;
- routinely and improperly waived TennCare and Medicare co-payments without an individualized assessment of those beneficiaries' inability to pay;
- improperly used pharmaceutical manufacturers' co-payment cards to pay the co-payments of individual Medicare recipients for thirteen Medicare beneficiaries;
- billed Medicare and TennCare for certain medications after the dates of death of 15 beneficiaries with either Medicare or TennCare coverage; and
- billed Medicare or TennCare for drugs that lacked a valid prescription from a licensed provider for 22 beneficiaries with either Medicare or TennCare coverage.
The case also shows the lengths the U.S. Government will go in prosecuting pharmacy allegations. No less than four separate Government bodies were involved including:
- United States' Attorney's Office for the Middle District of Tennessee,
- Tennessee Attorney General's Office,
- U.S. Department of Health & Human Services Office of Inspector General and
- Tennessee Bureau of Investigation Medicaid Fraud Control Unit.
Most recently, two Alabama pharmacists agreed to plead guilty in connection with the deaths of nine (9) patients. The cases date back to 2011 and involve the compounding pharmacy Advanced Specialty Pharmacy doing business as MedIV. The pharmacy allegedly compounded drugs in unsanitary conditions sometimes leaving batches out overnight in open, unrefrigerated containers. The unsanitary conditions resulted in some of the products becoming contaminated with bacteria that later killed the nine patients.
The pharmacists are the former-pharmacist-in-charge of MedIV as well as its former president. Each has agreed to plead guilty to two (2) misdemeanor counts under the Federal Food, Drug, and Cosmetic Act. If the judge imposes the maximum penalty, both men face a maximum of two (2) years in prison and a fine of up to $500,000.
While individual criminal pleas are rare in food and drug cases, this case reinforces how important the U.S. Department of Justice ("DOJ") is about holding individuals accountable, and the increasing regulatory and enforcement focus on pharmacies.
CVS Pharmacy, Inc.
The USAO for the District of Maryland announced on February 12, 2016, that CVS had agreed to pay $8 million to resolve claims that some of its pharmacies in Maryland had violated the Controlled Substances Act (CSA). Specifically, the Government alleged that over a 4-year period from 2008 to 2012 some of the Maryland CVS pharmacies dispensed controlled substances, including oxycodone, fentanyl and hydrocodone, failed to comply with CSA requirements, including having a pharmacist ensure the prescriptions for controlled substances were issued for a legitimate medical purpose.
"Pharmacies that dispense controlled substances have a duty ensure that prescriptions they fill were issued for legitimate medical purposes," said U.S. Attorney for the District of Maryland Rod J. Rosenstein. "Doctors and pharmacists are the gatekeepers of the effort to prevent the abuse and diversion of pharmaceutical drugs for non-medical purposes."
The unfortunate thing is that in all four cases this was preventable. In the Palisades, Nashville and CVI cases, the proper internal review and the establishment of SOPs, basic training, and monitoring were the need. In the case of MedIV, establishing a Quality Management System and following current Good Manufacturing Practices could have prevented needless tragedy.
Over the years, pharmacy compliance programs have been sorely neglected. Pharmacies and pharmacists need to take compliance seriously and take the necessary steps to establish or reinforce their programs -- before the Government comes calling, which seems more likely with each passing day.
by Dr. Seth Whitelaw, President & CEO of Whitelaw Compliance Group, LLC. and Editor, Life Science Compliance Update