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Among the major PBMs, Optum is perhaps the most aggressive when it comes to PBM audit sanctions, and we have scores of clients facing network termination for relatively inconsequential audit violations. In this case, however, Optum reversed the scheduled termination of our client based on HLA's advocacy and commitment to holding PBMs accountable to their legal obligations. A brief summary is provided below, but the road to this victory was long and hard.
2023 PBM Audit of Texas Pharmacy
Based on a July 2023 audit that noted significant claim discrepancies based on patient denials and inventory shortages, Optum served a notice of termination on the pharmacy based on "potential fraud, waste and/or abuse."
At that point, HLA was retained and our attorneys worked closely with the client to develop the narrative and formulate strategy for an appeal.
PBM Audit Appeal by Texas Pharmacy
Optum's initial termination letter was based on inventory shortages and the pharmacy's failure to provide a broad array of acute and maintenance medications to service routine retail pharmacy customers.
During the appeal process, HLA worked with the client to prepare and submit substantial documentation of compliance to all applicable Provider Manual rules and legal obligations.
During the appeal, however, Optum updated the original basis of termination to add new grounds. Not long afterwards, Optum's Pharmacy Programs Department denied the pharmacy's appeal and upheld network termination.
HLA Puts Optum on Notice of Potential Litigation
As we have written, litigation is an option of last resort, and should be commenced only when all other resolutions have failed. Here, however, the pharmacy's business was about to be bankrupted by network termination, and it had run out of options.
Accordingly, HLA notified Optum that, unless it agreed to reconsider its termination decision, HLA would have no choice but to file a lawsuit in federal court. Optum subsequently agreed to reconvene a panel, consisting of Optum attorneys and pharmacy professionals, to hear HLA's arguments why our client should not be terminated.
Optum Panel Reverses Termination of Texas Pharmacy
During HLA's meticulous and detailed presentation to Optum's panel, HLA attorney Diana Yastrovskaya, a member of the firm's national PBM audit defense team, used the time to educate Optum as to the challenges independent pharmacies are facing, and explain how Optum's approach to PBM audit sanctions could be better-tailored to arrive at mutually beneficial solutions.
In addition, Ms. Yastrovskaya noted that Texas PBM audit reform laws have changed the way in which PBMs are required to conduct PBM audits, such that Optum's audit conduct and network termination were unlawful.
Days later, Optum reversed its termination of the pharmacy. Let's be clear, however: Optum did not reverse its termination voluntarily or willingly. It did so because HLA attorneys were willing to go to court, as we have done before, to hold Optum accountable to its legal obligations.
If you are in a similar situation, put HLA's attorneys on your side today. Call now for a free consultation.
Frequently Asked Questions
Can I join HLA's lawsuit against Optum Rx for PBM audit termination?
Unfortunately, PBM provider manuals contain provisions that prohibit "class actions," meaning the joining of multiple plaintiffs against a defendant in one complaint.
Am I able to file a lawsuit against Optum Rx for PBM audit violations?
Yes, you are entitled to file a lawsuit in federal or state court to hold the PBM accountable for PBM audit violations. Ultimately, however, lawsuits should be a remedy of last resort if PBM audit negotiations fail.
What are the costs associated with filing a PBM audit lawsuit?
Legal fees and expenses vary depending on the nature of the lawsuit and claims involved. Some PBM audit lawsuits may be resolved quickly, whereas others may take longer or be referred to arbitration. Finally, certain claims may be eligible for "contingent fee" arrangements, particularly if you are a specialty pharmacy with high DIR claw-backs.
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