How Can Specialty Pharmacies Gain Access to Restricted Networks?

Jesse C. Dresser, JD, Partner, Frier & Levitt, LLC, discusses laws that help specialty pharmacies access restricted pharmacy networks.

Jesse C. Dresser: The biggest tool that specialty pharmacies have to get access to some of these specialty pharmacy networks is through this concept called the Any Willing Provider law. It essentially says that any pharmacy willing and able to participate on the terms and conditions applicable to other participating pharmacies, has to be allowed to participate in that network. There is a very, very strong Any Willing Provider law at the federal level, as it related to Medicare Part D plans.

There’s also about 26 states that have their own version of the any willing provider law, but one of the things that we’ve seen the [pharmacy benefit managers] PBMs do to kind of temper the effects of that is either create heightened terms and conditions and barriers of entry to prohibit specialty pharmacies from being able to meet those terms and conditions applicable to other participating pharmacies. The key thing there, however, is those terms and conditions have to be reasonable and relevant.

They can’t come up with a term and condition that the name of your pharmacy has to be the name of the PBM, that wouldn’t be a reasonable term and condition, and importantly it bears on price too. They can’t block pharmacies out of a network by pricing everything to the point where everyone’s going to lose money by participating in the network. The other way that we’ve seen them try to get around them, on the state level at least, is by taking the position that this law, [Employee Retirement Income Security Act] ERISA, applies.

It’s a federal law that applies to employee benefits that in many instances when there was employer sponsored health coverage, sometimes ERISA will apply, and they will make the argument that ERISA is inapplicable. ERISA makes the Any Willing Provider law inapplicable or it’s preemptive by ERISA. The key though, is that only those plans that are subject to ERISA are excluded by the Any Willing Provider. The Any Willing Provider law applies to all those other plans so it really is important that pharmacies, when they face any client of claims rejection, any kind of network denial, to take into account who the patient is, what the plan is, what type of plan it is, and then from there you can determine what rights and remedies you have to assert these Any Willing Provider laws.