NM center on law and poverty
 

Comments on Pharmacy Services

May 10, 2004

Pamela Hyde, JD, Secretary

Human Services Department

P.O. Box 2348

Santa Fe, NM 87504

Re:  Proposed regulatory changes published in NM register Vol. 27 No. 18

SENT VIA FACSIMILE AND US MAIL

Dear Secretary Hyde:

     The New Mexico Center on Law and Poverty submits the following comments on the proposed regulatory changes that the Human Services Department plans to make regarding the provision of pharmacy services.   In general, the Center on Law and Poverty thinks that the changes were well thought out and positive.  We are particularly pleased that the Department is implementing a mail order system which recipients have the option of using.  Mail order services will assist individuals in rural areas that do not have access to pharmacies and the elderly and disabled populations with limited mobility.   We are somewhat concerned that the regulations do not reference the “preferred drug list” that the Department is statutorily ordered to implement.  See NMSA §§27-2C-3 and  27-2-12.13.  The establishment of the preferred drug list could save the state substantial money and would greatly increase efficiency.  In addition to these general comments, the Center on Law and Poverty has some suggestions regarding proposed specific regulatory changes.

PROVIDER RESPONSIBILITIES

Proposed changes to rule 753.2: “If the provider certifies that a specific brand name is medically necessary, the allowed cost is the estimated acquisition cost.  The documentation of the provider’s handwritten “brand medically necessary” must be maintained by the pharmacy provider and be furnished upon request.  Checked boxes, rubber stamps, and written words that do not include the statement “medically necessary” or requests by telephone do not constitute appropriate documentation.  Brand medically necessary prescriptions may be subject to prior authorization.” 

The Department proposes adding the above language in its entirety.

Center on Law and Poverty Recommendations:

1.   Delete the term “Brand Name Medically Necessary" and replace it with the language “Dispense as written-No substitution. 

Rationale:  While it is certainly understandable and reasonable for Medicaid to require that a provider indicate and justify the need for a brand name drug, doctors the Center has consulted have advised us that doctors customarily use the terminology “dispense as written- no substitution.”  Thus the proposed change as written would require a major and unnecessary change in providers’ long ingrained prescribing practices.

2.   Write language allowing for faxed prescriptions and phone refills even when brand named are prescribed. 

Rationale: Patients needing refills have already established a documented need for the medications.  Facsimile transmissions will provide pharmacies and Medicaid with the needed documentation.  If this language is not added, clients will be faced with the additional burden of having to physically pick up each and every prescription from a provider’s office.  If the Human Services Department implements the proposed co-payment for elective transportation clients with no access to vehicles will be particularly negatively impacted, as will individuals who are disabled.

PROSPECTIVE DRUG USE REVIEW

Proposed changes to rule 753.74 (A) “ Prospective Drug Use Review: Prospective DUR (ProDUR) is the screening for potential drug therapy problems before each prescription is dispensed.  The dispensing pharmacist performs it at the point of service.  Only a licensed pharmacist or intern may perform ProDUR activities.”

Center on law and Poverty Recommendations:  The Center on Law and Poverty recommends that the Department change the second sentence to read “[t]he dispensing physician shall perform it at the point of service.”  We also recommend that the Department delete the word “may” in the last sentence and replace it with shall. 

Rationale:  This clarifies that the review is mandatory, not optional.  It should be required as adverse drug interactions are a major source of morbidity and mortality and an additional cost to the health care system.

Proposed Changes to 753.74 (B) “Counseling:  Each dispensing pharmacy must offer to counsel each Medicaid recipient receiving benefits (or the caregiver of such individual) who present a new prescription, unless the recipient refuses such counsel.  Pharmacists must document these refusals.  If no documentation of refusal of counseling is available or readily retrievable, it will be assumed that appropriate counseling and drug use review has taken place.  A reasonable effort must be made to record and maintain the pharmacist’s comments relevant to said counseling and prospective drug review, particularly when ProDUR overrides are performed.  Counseling must be done in person, whenever practicable.  If it is not practicable to counsel in person, providers whose primary patient populations do not have access to a local measured telephone service must provide access to a toll-free number.

Center on Law and Poverty Recommendations:

1.  The Center proposes that the Department delete the third sentence which reads “If no documentation of refusal of counseling is available or readily retrievable, it will be assumed that appropriate counseling and drug use review has taken place.”

Rationale:  If this sentence is not removed the whole regulation is rendered pointless. Counseling patients is vital and pharmacists should be accountable for proving that it took place.

2.  The Center on law and Poverty recommends that language be added requiring that monolingual Spanish speakers receive the review and counseling in Spanish.

Rationale:  Monolingual Spanish speakers are at particular risk of being victimized by adverse drug reactions, if they are not advised of the risks in a language that they can understand.

Dispensing Fees

Proposed Rule 753.8.6(F) – Physicians, clinics, or non-profit facilities are entitled to a dispensing fee or partial dispensing fee only to the extent that the provider’s cost of drug items and operations are similar to those of retail pharmacies.

The Department is recommending adding the above section in its entirety.   

Center on Law and Poverty Recommendations:  We recommend that this section be deleted in its entirety.  We also recommend that a section be added clarifying that the reasonable dispensing fee must be at least $3.65 as per statute.

Rationale:  Dispensing fees for similarly situated pharmacies and clinics should be the same regardless of the cost of the drug.  Although clinics and non- profit facilities may obtain drugs at more favorable costs, the dispensing fee is intended to compensate for labor costs associated with packaging the drugs, not the cost of the drug.  NMSA 27-2-16 requires Medicaid to pay at least $3.65 for a dispensing fee.

     Thank you for your time and attention to these issues.  If you have questions regarding our proposed comments please do not hesitate to contact me at 255-2840.

Sincerely, 

Jama Fisk

Staff Attorney