Legislature(2011 - 2012)BELTZ 105 (TSBldg)

03/06/2012 01:30 PM Senate LABOR & COMMERCE


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01:38:55 PM Start
01:39:15 PM SB217
02:24:08 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 217 PHARMACY AUDITS TELECONFERENCED
Heard & Held
                    ALASKA STATE LEGISLATURE                                                                                  
          SENATE LABOR AND COMMERCE STANDING COMMITTEE                                                                        
                         March 6, 2012                                                                                          
                           1:38 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Dennis Egan, Chair                                                                                                      
Senator Joe Paskvan, Vice Chair                                                                                                 
Senator Linda Menard                                                                                                            
Senator Bettye Davis                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Cathy Giessel                                                                                                           
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 217                                                                                                             
"An Act establishing procedures and guidelines for auditing                                                                     
pharmacy records; and providing for an effective date."                                                                         
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB 217                                                                                                                  
SHORT TITLE: PHARMACY AUDITS                                                                                                    
SPONSOR(s): LABOR & COMMERCE                                                                                                    
                                                                                                                                
02/22/12       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/22/12       (S)       L&C, FIN                                                                                               
03/01/12       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
03/01/12       (S)       Heard & Held                                                                                           
03/01/12       (S)       MINUTE(L&C)                                                                                            
03/06/12       (S)       L&C AT 1:30 PM BELTZ 105 (TSBldg)                                                                      
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
LIS HAUCHEN, Northwest Regional Director                                                                                        
National Association of Chain Drug Stores (NACDS)                                                                               
Olympia, WA                                                                                                                     
POSITION STATEMENT: Supported SB 217.                                                                                         
                                                                                                                                
MICHAEL CARTIER, Executive Vice President                                                                                       
Envision Pharmaceutical Services                                                                                                
Sacramento, CA                                                                                                                  
POSITION STATEMENT: Testified in opposition to SB 217.                                                                        
                                                                                                                                
CHAD HOPE, Alaskan Pharmacist and Manager                                                                                       
Medicaid Program                                                                                                                
Department of Health and Social Services (DHSS)                                                                                 
Anchorage, AK                                                                                                                   
POSITION STATEMENT: Commented on how SB 217 would affect                                                                      
Alaska's Medicaid program.                                                                                                      
                                                                                                                                
AMY BRICKER, Senior Director                                                                                                    
Network Auditors                                                                                                                
Express Scripts                                                                                                                 
St. Louis, MO                                                                                                                   
POSITION STATEMENT: Opposed to SB 217.                                                                                        
                                                                                                                                
DAVID DEDERICHS, Director                                                                                                       
Department of Government Affairs                                                                                                
Express Scripts                                                                                                                 
State of Minnesota                                                                                                              
POSITION STATEMENT: Opposed SB 217.                                                                                           
                                                                                                                                
ERIC DOUGLAS                                                                                                                    
CVS Caremark                                                                                                                    
Chicago, IL                                                                                                                     
POSITION STATEMENT: Opposed SB 217.                                                                                           
                                                                                                                                
RICHARD HOLM, Chair                                                                                                             
Alaska Board of Pharmacy                                                                                                        
North Pole, AK                                                                                                                  
POSITION STATEMENT: Unanimously supported SB 217.                                                                             
                                                                                                                                
TOM HODEL                                                                                                                       
Soldotna Professional Pharmacy                                                                                                  
Soldotna, AK                                                                                                                    
POSITION STATEMENT: Supported SB 217.                                                                                         
                                                                                                                                
DIRK WHITE, Member                                                                                                              
Board of Pharmacy                                                                                                               
Sitka, AK                                                                                                                       
POSITION STATEMENT: Was available to answer questions on SB 217.                                                              
                                                                                                                                
MARGARET SODEN                                                                                                                  
Alaska Pharmacists Association                                                                                                  
Fairbanks, AK                                                                                                                   
POSITION STATEMENT: Supported SB 217.                                                                                         
                                                                                                                                
MATTHEW DILORETO, Director                                                                                                      
State Government Affairs                                                                                                        
National Community Pharmacists Association (NCPA)                                                                               
Olympia, WA                                                                                                                     
POSITION STATEMENT: Stated strong support for SB 217.                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
1:38:55 PM                                                                                                                    
CHAIR DENNIS  EGAN called the  Senate Labor and  Commerce Standing                                                            
Committee meeting  to order  at 1:38 p.m.  Present at the  call to                                                              
order were Senators Paskvan, Menard, Davis and Chair Egan.                                                                      
                                                                                                                                
                     SB 217-PHARMACY AUDITS                                                                                 
                                                                                                                                
1:39:15 PM                                                                                                                    
CHAIR  EGAN announced  the consideration  of SB  217. He said  the                                                              
committee would continue  to hear public testimony,  but would not                                                              
take final action on the bill today.                                                                                            
                                                                                                                                
LIS  HAUCHEN, Northwest  Regional  Director, National  Association                                                              
of Chain  Drug Stores  (NACDS),  Olympia, WA,  noted that  she had                                                              
submitted  written testimony.  She said  of the  88 pharmacies  in                                                              
Alaska, 54  of them  are chains.  NACDS represents Carrs,  Costco,                                                              
Health  Mart   Systems,  Target,   Walgreens  and  Wal-Mart,   all                                                              
operating in the State of Alaska.                                                                                               
                                                                                                                                
She hit some of  the highlights in SB 217 that  sets up a standard                                                              
by which pharmacies  are audited and allows for appeal  in case of                                                              
disagreement.  She stated  that  NACDS is  not  opposed to  audits                                                              
based on fraud, unlawful billing practices and abuse.                                                                           
                                                                                                                                
She  said  she  would  focus  her  comments  on  the  similarities                                                              
between  SB 217  and  a similar  bill  currently  before the  Utah                                                              
State  Senate on  which  CareMark and  Express  Scripts have  both                                                              
negotiated and agreed  to. The notice in the Utah  bill (HB 76) is                                                              
10 days,  whereas the  bill before  this committee  is two  weeks.                                                              
Audits cannot take  place without permission from  the pharmacy in                                                              
the first  5 days  of the month  in Utah compared  to the  first 7                                                              
days  in Alaska.  The  look  back period  for  audits  in Utah  is                                                              
limited  to 18  months, one  of  the negotiated  points with  Care                                                              
Mark  and  Express Scripts,  versus  the  24  month look  back  as                                                              
outlined in  the Alaska legislation.  Neither bill allows  for the                                                              
collection of dispensing  fees if the correct person  received the                                                              
correct  drug for  the correct  reason as  prescribed. Both  bills                                                              
require  a 60-day  preliminary audit  finding to  be submitted  to                                                              
the pharmacy  and both bills  give 30 days  for the  pharmacies to                                                              
respond by either  appealing the findings or  providing additional                                                              
information.   Both  bills  establish   an  appeals   process  for                                                              
appealing  the preliminary  findings;  the  Utah  bill requires  a                                                              
final  audit  120  days after  the  appeal  process,  whereas  the                                                              
Alaska bill requires the final audit within 90 days.                                                                            
                                                                                                                                
MS. HAUCHEN  respectfully asked  the committee  to support  SB 217                                                              
and said she would be happy to answer questions.                                                                                
                                                                                                                                
1:43:21 PM                                                                                                                    
MICHAEL    CARTIER,    Executive    Vice    President,    Envision                                                              
Pharmaceutical Services,  Sacramento, CA, said they  are currently                                                              
providing  comprehensive  pharmacy  services  to State  of  Alaska                                                              
employees,  retirees  and  dependents   and  opposed  SB  217.  He                                                              
explained that  in Alaska they  are responsible for  the effective                                                              
administration  of the pharmaceutical  benefit; that  includes the                                                              
oversight  of   the  pharmacy   network  including   audits.  Some                                                              
colleagues  view audits  as a  time consuming  exercise, but  they                                                              
are  a necessary  contractual  requirement  by their  clients  and                                                              
government payers.                                                                                                              
                                                                                                                                
He  said Envision  is  both a  pharmacy  benefit management  (PBM)                                                              
company and  an insurance  company licensed  in Alaska  to provide                                                              
benefits  to Medicare  beneficiaries.  In that  role, they  follow                                                              
their contractual and regulatory requirements explicitly.                                                                       
                                                                                                                                
Responding   to   previous  anecdotal   testimony,   Mr.   Cartier                                                              
confirmed that  within the scope of  an audit they do  not receive                                                              
any additional  revenue stream or  additional profits.  Any monies                                                              
that  are  recovered   are  the  property  of  a   client  or  the                                                              
government  sponsor   and  are  passed  back  to   them  in  their                                                              
entirety.                                                                                                                       
                                                                                                                                
He said  Envision does not  use any methods  where a  small sample                                                              
of  claims is  extrapolated to  an  entire claim  set to  estimate                                                              
recoveries.  They do not  pay any  auditor based  on a  percent of                                                              
audit savings identified  or collected. Auditors  are employees of                                                              
Envision.  They do  not  identify miner  clerical  errors and  use                                                              
them as a  means to disqualify  an entire claim. A  clerical error                                                              
by itself  has no  ill intent  if no harm  is done  to any  of the                                                              
parties involved.                                                                                                               
                                                                                                                                
MR.  CARTIER explained  that dispensing  fees  are a  part of  the                                                              
reimbursement   for   a   valid  prescription   claim   and   that                                                              
eliminating  them   from  an  audit   recovery,  if  a   claim  is                                                              
determined  to  be  invalid,  would  be  a  violation  of  federal                                                              
guidelines.  He  suggested the  committee  review  the Academy  of                                                              
Managed  Care  Pharmacies  audit  guidelines  model  for  pharmacy                                                              
claims;  this  is   a  coalition  of  both  insurers   and  retail                                                              
pharmacies,  most  notably  the   National  Community  Pharmacists                                                              
Association,  which authored  the model  legislation in  15 or  20                                                              
other states.  He thought it was  an attempt to try to  remove the                                                              
adversarial relationship  that may  exist between insurers,  PBMs,                                                              
and retail pharmacies.                                                                                                          
                                                                                                                                
1:47:06 PM                                                                                                                    
SENATOR PASKVAN  asked the shortest  notice Envision has  given in                                                              
the last three years.                                                                                                           
                                                                                                                                
MR. CARTIER  replied Envision  had not  conducted an onsite  audit                                                              
in Alaska  in the last  three years, but  they had done  some desk                                                              
audits, which are electronic.                                                                                                   
                                                                                                                                
SENATOR  PASKVAN  asked if  he  opposed  the  policy of  a  14-day                                                              
notice period.                                                                                                                  
                                                                                                                                
MR. CARTIER  replied, "No.  I think there  should be  a reasonable                                                              
notice period  for both  parties." Probably,  the most  frequently                                                              
used notice timeframe is 30 days.                                                                                               
                                                                                                                                
SENATOR PASKVAN  asked what specific  portions of SB  217 Envision                                                              
didn't advocate for.                                                                                                            
                                                                                                                                
MR. CARTIER  replied excluding  dispensing  fees, because  in most                                                              
cases the  dispensing fee  is part  of the reimbursement.  Another                                                              
was  requiring  that  the  audit   must  be  conducted  by  or  in                                                              
consultation  with a  pharmacist licensed  in the  state. He  also                                                              
clerical errors should be better defined.                                                                                       
                                                                                                                                
SENATOR  PASKVAN  asked  how  much   it  costs  for  a  California                                                              
pharmacist  to be co-licensed  under  Alaska law  or in more  than                                                              
one state.                                                                                                                      
                                                                                                                                
MR.  CARTIER replied  that pharmacists  have to  take a  licensing                                                              
exam to  maintain a  license in  more than  one state.  California                                                              
has  its  own  exam  and does  not  have  reciprocity  with  other                                                              
states.  You could  take an  exam  that has  reciprocity for  many                                                              
states and  thereby enjoy a joint  licensing. It would  have a fee                                                              
and have the costs associated with studying for the test.                                                                       
                                                                                                                                
SENATOR  PASKVAN said  he was  trying  to figure  out if  Alaska's                                                              
system is part of a multi-state exam.                                                                                           
                                                                                                                                
MR. CARTIER deferred  the question to someone on  the Alaska Board                                                              
of Pharmacy.                                                                                                                    
                                                                                                                                
1:51:30 PM                                                                                                                    
SENATOR PASKVAN  said Envision  is voluntarily providing  pharmacy                                                              
care  to the  State  of Alaska,  and  he wanted  to  know what  is                                                              
onerous  about  a state  requiring  its  auditors to  be  licensed                                                              
under the  law of the  state where  they have voluntarily  entered                                                              
to make money.                                                                                                                  
                                                                                                                                
MR.  CARTIER  said  he  didn't know  if  there  were  any  onerous                                                              
circumstances.                                                                                                                  
                                                                                                                                
1:52:47 PM                                                                                                                    
CHAD  HOPE,  Alaskan Pharmacist  and  Manager,  Medicaid  Program,                                                              
Department of  Health and Social  Services (DHSS),  Anchorage, AK,                                                              
stated  that the  department  had no  particular  position on  the                                                              
bill, but SB  217 would apply to  the Medicaid program  as well as                                                              
the PBMs.  In that  regard, there  are some  issues and  potential                                                              
conflicts  the committee  should  be aware  of. He  noted that  he                                                              
submitted testimony in writing.                                                                                                 
                                                                                                                                
MR.  HOPE said  several  provisions of  this  bill don't  conflict                                                              
with current  practices and can  reasonably be accommodated,  such                                                              
as giving  30 days'  notice to an  audit, and accommodating  audit                                                              
schedules  with   a  pharmacy's  work   flow.  The  DHSS   has  an                                                              
established  appeals   process  and   doesn't  seek   recovery  of                                                              
overpayments  until the appeals  process  has been exhausted,  nor                                                              
does it charge interest on overpayments in that time.                                                                           
                                                                                                                                
However,  he  said,  a  couple  of  provisions  appear  to  be  in                                                              
conflict with  the state's current  practices or state  or federal                                                              
law. He  said the term  "audit" is PMS  driven and  explained that                                                              
currently,  the Medicaid program  is involved  with at  least four                                                              
types  of audits  and  the  Medicaid Integrity  Contractor  audits                                                              
(MIC) for one  have another federal component.  The Recovery Audit                                                              
Contractor  (RAC) audits  established by  the Affordable  Care Act                                                              
have yet  another function;  and then there  are audits  under the                                                              
state law  in AS 47.05.200  where the  Medicaid program  itself is                                                              
conducting the audits  through a contractor. Each  of these audits                                                              
has its own objective  and wouldn't be able to adhere  to the same                                                              
standards.                                                                                                                      
                                                                                                                                
MR.  HOPE said  another  section  of concern  in  SB  217 was  the                                                              
limitation  on  using  extrapolation,  because that  is  the  most                                                              
efficient  way of conducting  pharmacy audits.  He explained  that                                                              
pharmacies generate  significantly more claims than  most provider                                                              
types and extrapolation  allows DHSS to examine a  large number of                                                              
claims   without   overly   burdening  the   pharmacies   or   the                                                              
department. DHSS  is not overly  aggressive or abusive in  the use                                                              
of extrapolation  and does not apply a single  average overpayment                                                              
to all pharmacy  claims. They use what is called  the "lower bound                                                              
of a  90th percentile  one-sided  confidence interval"  statistics                                                              
rather  than a mid-point  or an  average error  factor. In  simple                                                              
terms, it's  a much  less aggressive  approach and extrapolates  a                                                              
lower  amount rather  than a higher  amount.  Also, he noted  that                                                              
the  prohibition  against recouping  dispensing  fees  potentially                                                              
leads  to  the  Medicaid  program  having  to  pay  a  pharmacy  a                                                              
dispensing  fee for a  fraudulent claim  that was never  dispensed                                                              
to a recipient.                                                                                                                 
                                                                                                                                
Finally, he said,  the recovery audit contractors  (RAC) audits is                                                              
a new  type  of audit  that the  Medicaid program  is required  to                                                              
conduct and they must by law be paid on a contingency fee basis.                                                                
                                                                                                                                
1:57:05 PM                                                                                                                    
CHAIR EGAN said  the bill drafter believed the bill  did not apply                                                              
to Medicaid and a forthcoming CS would clarify that.                                                                            
                                                                                                                                
SENATOR PASKVAN  asked if he agreed  that Medicaid is  entitled to                                                              
supremacy under  the U.S. Constitution  and federal law as  to the                                                              
application of federal law.                                                                                                     
                                                                                                                                
MR. HOPE replied  that his knowledge and application  of law isn't                                                              
what it could  be; he had been  told that the federal  audit would                                                              
potentially not  be covered under  this, but that state  audits in                                                              
AS 47.05.200 potentially would.                                                                                                 
                                                                                                                                
1:58:26 PM                                                                                                                    
AMY BRICKER, Senior  Director, Network Auditors,  Express Scripts,                                                              
St.  Louis, MO,  stated opposition  to  SB 217.  She said  Express                                                              
Scripts uses  extrapolation as part  of the audit process  that is                                                              
required by  federal programs. They  service the  Tri-care benefit                                                              
for the  Department of Defense and  represent clients that  are on                                                              
Medicare and Medicaid that exercise the right to extrapolate.                                                                   
                                                                                                                                
She said  they don't  conduct clinical  audits. The bill  mentions                                                              
that  clinical  judgment  should   be  determined  by  an  Alaskan                                                              
pharmacist  and that is  not part  of the  scope of their  audits.                                                              
They have found  that unintentional errors sometimes  develop into                                                              
a  trend or  pattern  and limiting  their  ability  to audit  will                                                              
limit their ability to identify fraud in the system.                                                                            
                                                                                                                                
MS. BRICKER  said Express  Scripts has  only audited one-third  of                                                              
one percent of all  claims that were processed in  Alaska. So this                                                              
is not  onerous or overly  burdensome for the pharmacy  community.                                                              
Express Scripts looks  at claims that "stick out"  as outliers and                                                              
leverage their  system to identify  those claims; they  don't pick                                                              
randomly.                                                                                                                       
                                                                                                                                
2:01:03 PM                                                                                                                    
SENATOR  PASKVAN asked  the shortest  notice  Express Scripts  has                                                              
given in the last three years.                                                                                                  
                                                                                                                                
MS. BRICKER  replied they give  a two-week notice  for traditional                                                              
audits. If  they believe there is  fraud or abuse they  don't give                                                              
any notice.                                                                                                                     
                                                                                                                                
2:01:43 PM                                                                                                                    
DAVID  DEDERICHS,  Director,  Department  of  Government  Affairs,                                                              
Express Scripts,  MN, testified in  opposition to SB 217.  He said                                                              
as a PBM, they  administer the prescription drug  benefit for over                                                              
50  million  Americans. Their  mission  is  simply to  make  drugs                                                              
safer and more affordable in the prescription sphere.                                                                           
                                                                                                                                
He said  that some  of their clients  pertinent to Alaska  include                                                              
Fortune  500  companies,  labor unions  and  government  entities;                                                              
Tri-Care  with the  U.S. Department  of Defense  is their  largest                                                              
client. All 13  million active and retired military  personnel and                                                              
their  families receive  their prescription  drug benefit  through                                                              
Express Scripts. The  reason he mentioned this is  because many of                                                              
those troops are stationed in Alaska.                                                                                           
                                                                                                                                
MR.  DEDERICHS said  that retail  pharmacies are  integral to  the                                                              
success  of  their   company.  They  contract  with   over  56,000                                                              
pharmacies  across  the  country  to provide  as  much  access  as                                                              
possible  to  clients and  ultimately  their  beneficiaries.  They                                                              
adjudicate  750 million  prescription transactions  each year  and                                                              
over  90 percent  of those  occur  at the  retail pharmacy  level.                                                              
Pharmacies are a  critical partner and Express  Scripts' audits of                                                              
them are not capricious or random.                                                                                              
                                                                                                                                
He  said   auditing  is   part  of   their  clients'   contractual                                                              
requirement to  make sure they  aren't paying for  any unnecessary                                                              
pharmacy claims,  whether that is  through fraud, waste  or abuse.                                                              
Sophisticated  systems  and  algorithms   are  used  to  look  for                                                              
"outlier  crank  claims"  that  can  be  found  pretty  easily  in                                                              
pharmacy  transactions.  He said  that  100 percent  of  recovered                                                              
funds go directly  back to their clients and  that Express Scripts                                                              
has  an internal  audit  department and  doesn't  contract at  all                                                              
with  outside  consultants.  Audits  are not  a  money  generating                                                              
mechanism for them.                                                                                                             
                                                                                                                                
MR.  DEDERICHS  said  their  auditors  are  pharmacists  and  they                                                              
understand that pharmacists  at the retail level  are busy working                                                              
transportation,  stocking  shelves, filling  orders  and doing  HR                                                              
work  in addition  to conducting  their  very important  business.                                                              
Finally, he  said SB  217 mandates contract  terms which  would be                                                              
more appropriately negotiated at a contracting table.                                                                           
                                                                                                                                
He  clarified that  in  reference to  an  earlier comment  Express                                                              
Scripts  does  not  support  Utah's  audit  bill  and  doesn't  do                                                              
extrapolation  as a company,  but some  of their federal  programs                                                              
require them to do it. It is not done arbitrarily.                                                                              
                                                                                                                                
2:05:36 PM                                                                                                                    
ERIC  DOUGLAS,  CVS  Caremark,  Chicago,  IL, noted  that  he  had                                                              
submitted written  testimony and  didn't support  SB 217.  He said                                                              
CVS  does  not  extrapolate  under  any  circumstances  and  their                                                              
contracts  have  a thorough  appeals  process for  every  pharmacy                                                              
during  the  audit  process.  They  do  not  collect  interest  on                                                              
audited  claims  and  onsite  audits are  always  conducted  by  a                                                              
licensed  pharmacist. Their  argument  against having  pharmacists                                                              
licensed in  the State  of Alaska conducting  audits in  Alaska is                                                              
that   those   pharmacists   aren't   filling   prescriptions   or                                                              
dispensing  in   Alaska  when  they   are  conducting   an  audit;                                                              
therefore, making  them be licensed in Alaska  isn't necessary. If                                                              
they  were an  actively  practicing pharmacy,  that  would be  the                                                              
case.  In the  instance where  a  mail order  pharmacy is  mailing                                                              
prescriptions   into  Alaska   the   pharmacists  absolutely   are                                                              
licensed by  the Alaska  Board of Pharmacy  (because in  that case                                                              
they are practicing pharmacy).                                                                                                  
                                                                                                                                
He  noted  that  CVS  Caremark  opposed  the  bill  as  originally                                                              
drafted, but  the only incorrect  statement he heard from  any CVS                                                              
was about  the number of  months allowed  for an audit  look back.                                                              
Utah uses  a 24-month  look back,  but that  provision was  parsed                                                              
out,  and 24  months  is  what all  the  other states'  that  have                                                              
passed audit laws  use. The reason Utah parsed  it out differently                                                              
was  because  the author  wanted  it  that way.  Express  Scripts,                                                              
Medco and a couple  of other PBMs still have issues  with the Utah                                                              
bill, and  to his  knowledge, CVS  Caremark is  the only  PBM that                                                              
has signed off on that bill.                                                                                                    
                                                                                                                                
SENATOR   PASKVAN  asked   his   thoughts   generally  on   Alaska                                                              
establishing  its  own  procedures  and  guidelines  for  auditing                                                              
pharmacy records.                                                                                                               
                                                                                                                                
MR. DOUGLAS  answered that  generally CVS  Caremark's position  is                                                              
that  these provisions  are  better  served for  contracts  rather                                                              
than being  dictated by  statute. He  said he  was always  open to                                                              
discussing  any  provisions,  but   at  this  point  CVS  couldn't                                                              
support the bill.                                                                                                               
                                                                                                                                
2:09:41 PM                                                                                                                    
RICHARD HOLM,  Chair, Alaska  Board of  Pharmacy, North  Pole, AK,                                                              
stated that  the board,  at its  February 17 meeting,  unanimously                                                              
supported SB  217. The board  felt that  this is an  industry that                                                              
has  been  too unregulated  for  too  many  years; there  is  very                                                              
little transparency  in the way  they operate. Envision  currently                                                              
administers the  state's pharmaceutical  benefit, but it  could be                                                              
a different  company  next year.  For instance,  from the  state's                                                              
standpoint, these  companies can  tell you that  all of  the funds                                                              
they recover  in an audit go back  to the client, but  there is no                                                              
way to check on  that, and the state would like to  be able to see                                                              
if the funds  are truly being recovered.  He said a lot  of states                                                              
are moving in that direction.                                                                                                   
                                                                                                                                
2:12:00 PM                                                                                                                    
TOM HODEL,  Soldotna Professional  Pharmacy, Soldotna,  AK, stated                                                              
support  for  SB  217.  He described  an  audit  he'd  been  going                                                              
through for  the last year. In  February 2011, he  received notice                                                              
of a  desk audit  on over  100 prescriptions  from the  year 2008.                                                              
This  letter came  from  a contracted  firm  hired by  one of  the                                                              
PBMs.  After many hours  of evening  and weekend  work, he  pulled                                                              
all of the information  and sent it into the audit  company. A few                                                              
months later  he was notified that  they would also  be performing                                                              
an  onsite audit  of  his records.  So  in October,  two  auditors                                                              
arrived and he spent  the entire day pulling records  for them. He                                                              
was  amazed at  their lack  of knowledge  concerning pharmacy  and                                                              
said they certainly weren't pharmacists.                                                                                        
                                                                                                                                
Another month  went by and  he received  their report. Out  of the                                                              
over 100 prescriptions  worth over $100,000 in claims  they had an                                                              
issue with  4 prescriptions with  a total of  $85. He then  got to                                                              
the  last page  and  found out  that  they used  an  extrapolation                                                              
formula and  that $85 turned  into $7,300.  He said one  $40 error                                                              
was  legitimate and  he  appealed the  other  three, because  they                                                              
were "very nitpicky." They also rejected that.                                                                                  
                                                                                                                                
MR.  HODEL related  that  now,  a few  weeks  ago,  he received  a                                                              
letter requesting  him to  send them  a check  for $7,300  in "so-                                                              
called over payments"  by March 8, so he hired a  lawyer to appeal                                                              
using  the  extrapolation  method  for  this audit.  Using  it  is                                                              
totally  unfair as  there has never  been a  pattern of  sustained                                                              
high payment.  He asked  for their  support of  SB 217  that would                                                              
bring standards and fairness to the audit procedure.                                                                            
                                                                                                                                
DIRK  WHITE,  Member,  Board  of  Pharmacy,  Sitka,  said  he  was                                                              
available to answer questions on SB 217.                                                                                        
                                                                                                                                
2:14:51 PM                                                                                                                    
MARGARET  SODEN, Alaska  Pharmacists  Association, Fairbanks,  AK,                                                              
said  she  previously testified  in  support  of  SB 217  and  had                                                              
submitted  a  letter describing  an  experience  she had  with  an                                                              
audit.  She  said  sometimes  pharmacy audits  are  a  little  bit                                                              
complicated  and  require  getting   a  lot  of  records  that  in                                                              
Fairbanks  often means  going out  in the cold  winds, and  having                                                              
the 14-day notice would be helpful to Fairbanks pharmacists.{                                                                   
                                                                                                                                
2:16:20 PM                                                                                                                    
MATTHEW  DILORETO, Director,  State  Government Affairs,  National                                                              
Community  Pharmacists  Association  (NCPA), Olympia,  WA,  stated                                                              
strong support  for SB 217. He  said NCPA represents  about 23,000                                                              
community   pharmacies   nationwide   and   about   40   community                                                              
pharmacies in Alaska  that are responsible for  about $157 million                                                              
in  revenue.  He   stated  that  NCPA  is  not   against  auditing                                                              
businesses;  they fully understand  that audits  need to  occur to                                                              
catch  fraud,  waste  and  abuse.   But  that  is  not  what  this                                                              
legislation  is  about;  rather  it's about  PBMs  that  are  over                                                              
aggressive  in   their  auditing   of  community  pharmacies   and                                                              
pharmacies in general.                                                                                                          
                                                                                                                                
MR.  DILORETO  said   it's  their  position  that   audits  are  a                                                              
moneymaker   for  the   PBM  industry   that   deals  with   major                                                              
corporations;  for  example,  CVS  Caremark  in  2011  was  a  $97                                                              
billion  industry.  He  said  if  they look  into  the  real  life                                                              
stories of  community pharmacies they  would see examples  of what                                                              
is being discussed.  One is the  story of an NCPA member,  a small                                                              
business  owner,  who  was  penalized  $14,000  for  not  using  a                                                              
physician's  number in  his computer  system. The  catch was  that                                                              
this   particular  prescription   was  from   a  certified   nurse                                                              
practitioner; so  there was no  physician number. The  NCPA member                                                              
contacted  his  insurance  company  and was  told  everything  was                                                              
okay,  that he  could use  the RMP  number. He  also attached  the                                                              
nurse practitioner's  license to  the prescription and  documented                                                              
the  phone call.  Even after  going through  all these  additional                                                              
steps, he was  still hit with the  audit and he had  to settle for                                                              
$12,000.  He  said  there  are many  other  stories,  and  he  had                                                              
personally  dealt with  audits  up to  $255,000  for nothing  more                                                              
what is  being called  an administrative  clerical error.  That is                                                              
really  what  this  legislation  is  about,  fair  and  reasonable                                                              
standards on an audit practice.                                                                                                 
                                                                                                                                
One thing that is  brought up frequently is the  notice to prepare                                                              
for an audit  and he said even  the IRS gives a  person two-week's                                                              
notice for  their audits.  This is  definitely being discussed  in                                                              
other states,  and Utah is one  of them; 15 states  currently have                                                              
passed fair legislation.  Two other states contacted  him today to                                                              
strengthen their audit provisions.                                                                                              
                                                                                                                                
He  pointed out  that NCPA  sat on  a committee  that someone  had                                                              
said they developed  some other guidelines that  could possibly be                                                              
looked at  by Alaska, but that  is inaccurate. NCPA  was involved,                                                              
but had  strong concerns  with what  was presented  at the  end of                                                              
that report  and felt it  didn't go far  enough in  addressing the                                                              
issues.                                                                                                                         
                                                                                                                                
CHAIR  EGAN, finding  no  questions,  said that  completed  public                                                              
testimony and the  he would take action when  legislators returned                                                              
from their conferences.                                                                                                         
                                                                                                                                
2:22:10 PM                                                                                                                    
SENATOR DAVIS said  she had no problems with that,  but she didn't                                                              
have enough  information to  make a decision.  A number  of people                                                              
are opposed  to it and no  one has said  what is wrong with  it or                                                              
what changes  should  be made. She  thought the  two sides  should                                                              
get  together  and  share  their  concerns;  the  pharmacies  have                                                              
already done that but she hadn't heard from the other side.                                                                     
                                                                                                                                
SENATOR PASKVAN  observed that  his perception  is that  these are                                                              
adhesion contracts  where there  is no negotiation  but a  take it                                                              
or  leave it  proposition. There  is  unequal bargaining  strength                                                              
between pharmacies  and PBMs. He hadn't heard what  the PBMs don't                                                              
like, only that they didn't want this legislation passed.                                                                       
                                                                                                                                
CHAIR  EGAN reiterated  that  public  testimony was  complete  and                                                              
announced he would hold SB 217.                                                                                                 
                                                                                                                                
2:24:08 PM                                                                                                                    
There  being no  further business  to come  before the  committee,                                                              
Chair  Egan  adjourned  the Senate  Labor  and  Commerce  Standing                                                              
Committee meeting at 2:24 p.m.                                                                                                  
                                                                                                                                
                                                                                                                                

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