From advances in breakthrough therapies to routine treatment for chronic conditions, prescription drug coverage is an increasingly important part of health care. This is especially true for low-income people relying on Medicaid, who have no other means of obtaining potentially life-saving medication. Yet, on any given day in the District of Columbia, up to forty seven percent of prescriptions submitted by Medicaid beneficiaries to participating pharmacies are denied.
There are many possible reasons why a pharmacy might refuse to fill a patient’s prescription. A prescribed drug might require special approval from a health plan or the Medicaid agency, called prior authorization. Some drugs may have contraindications or harmful interactions with other drugs the patient is taking. Sometimes a drug is not covered by the program at all; or beneficiaries find out that their Medicaid coverage has been terminated.
The problem is that, in most cases, when Medicaid beneficiaries are denied a prescription drug at a pharmacy, they leave empty-handed without knowing the reason for the denial or what steps they should take to obtain the needed drug.
Health care advocates are addressing this problem on several fronts. The National Health Law Program (NHeLP) and the private law firm Terris, Pravlik & Millian (TPM) brought a class action lawsuit, Maldonado v. District of Columbia, challenging the District of Columbia’s failure to provide individualized written notice to persons whose prescriptions are denied Medicaid payment at the point-of-sale. The suit argues that this violates their right to due process guaranteed by the Fifth Amendment to the Constitution.
In Medicaid, beneficiaries and applicants have certain due process protections if benefits are denied, terminated or reduced. These include: (1) a notice that describes the adverse action the state Medicaid agency intends to take; (2) the reasons for the intended action (including both the legal support and the factual basis), (3) the specific regulations or law that support or require the action, (3) the individual’s right to request a hearing; (4) how to seek help for legal representation; and (5) the circumstances under which the person can receive continued benefits (sometimes called “aid paid pending”) pending the outcome of the appeal if a hearing is requested. The notice must be a meaningful notice, and that means that it needs to be written so that the person can understand it.
The court in Maldonado agreed that DC’s Medicaid agency “failed to provide adequate initial written notice that reasonably apprises plaintiffs of the reasons for the prescription denial.” (To read the 2017 decision, click here). The court is still considering pending motions on how to resolve the case so that DC Medicaid enrollees have adequate notice when their prescriptions are denied.
Meanwhile, an ad hoc group of health advocates reached out to prescription drug industry leaders to urge them to take up the issue of individualized notice when a prescription is denied. Earlier this year, Sheldon V. Toubman of New Haven Legal Assistance Association and Stephanie Madison from TPM travelled to San Antonio to address a meeting of the National Council for Prescription Drug Programs (NCPDP), the national group that sets the standards for pharmacy computer systems nationwide. They had ten minutes on the agenda to make the case that the pharmacy industry should consider providing health care consumers with individualized notices at the point of sale if a prescription is denied.
It worked. The NCPDP agreed to establish a Point of Sale Patient Specific Denial Notice Task Group, charged with recommending:
solutions to accurately and timely provide individualized communication to the patient of the reason for the denial and the action items necessary to obtain the medication when the claim has rejected. The mechanisms should be global to address different lines of business (commercial, Medicare, Medicaid), methods of patient communication (paper, electronic, etc.) and provide additional information of appeal rights as required by federal and/or state law. The capacities to be created need to meet the requirements applicable to Medicaid payers, including payer-generated individualized written notice issued at the point of sale.
The NCPDP process, like litigation, is slow and deliberative, and the ultimate outcome not guaranteed. Sheldon and Stephanie continue to provide input to the Task Group and regularly updates to their health advocate partners.
If these efforts are successful, pharmacies, as an industry-wide, standard practice, can provide individualized written notice to health care consumers if a prescription is denied. Instead of leaving the pharmacy empty-handed, consumers, including Medicaid beneficiaries, should have timely, accurate information to obtain the medication they need.