PAINKILLER LAW: THE CVS BLACKLIST — FRIEND OR FOE?

CVS, as in pharmacy chain. Not CBS, as in, “For heaven’s sake, you and Time Warner Cable get a deal done before the NFL season starts!” The pharmacy chain recently announced that it had ordered its stores to no longer fill controlled substance prescriptions for some 36 doctors around the country, out of concern that the doctors were excessively or irresponsibly prescribing addictive narcotics (mostly opioids). A news article called the action a “blacklist.” If it’s a blacklist, it’s automatically bad, right? Wrong. Upon close examination, it’s clear that CVS took action in only the most extreme cases. This is good news for most doctors, because it means that prescribers who closely screen, carefully diagnose, diligently follow up with, and competently treat their patients are, at least in the view of one of the nation’s largest pharmacy chains, obeying the law.

CVS‘ methods were detailed in August 21′s online New England Journal of Medicine. The company took care to cull out a select group who would be contacted by mail repeatedly and invited to speak with CVS. Many physicians contacted did not respond even to repeated requests. Others called to offer limited information. A few retained counsel, and a few others said they’d revise their narcotics prescribing criteria and procedures. Of those who responded to CVS, there were several whose explanations of their prescribing practices were deemed inadequate. But others passed muster.

As an attorney who’s had medical-provider clients summarily excluded from writing at certain pharmacy chains, without any of what we might call due process before a unilateral decision is made by the pharmacy chain, I commend CVS for using restraint and going about this in what appears to have been a careful and considered manner. I especially commend the company for its restraint in light of what I am guessing was significant pressure exerted behind the scenes by the DEA. I would bet the DEA was pushing for the review/audit and was leaning on the pharmacy chain hard to take swift and sure action. Such action would make the DEA look good and reinforce the agency’s desire to be not only respected but feared by healthcare professionals. But a giant blacklist would also unfairly tarnish many decent doctors. It would seem cooler heads prevailed – this time.

Any doctor who was interviewed or contacted by CVS and who “passed the test” should retain all documents relating to the inquiry, and should pass copies on to the medical provider’s risk manager and insurance carrier. These days, you need to build and bolster your argument that your prescribing practices are safe, legal and proper. So any time you’ve withstood close scrutiny like this, tell the world! And keep a copy on hand in case CVS or the DEA ever change their minds!

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