Drug Topics - February 11, 2008 - (Page 37) www.drugtopics.com FEBRUARY 11, 2008 DRUG TOPICS 37 Cover Story the plain language of the Social Security Act” and “con- It goes to the core issue of the case, which is the differtrary to Congress’ clear intent.” entiation between what the statute mandated on the one The case is based entirely on how CMS defined AMP hand and what the rule did. As bad as the statute is, the and does not question the use of AMP as a pharmacy re- rule is significantly worse. The more documents we can imbursement model. “It was a blessing in disguise that get to support our approach, the better.” CMS did not follow the DRA mandate,” remarked RecOf course, even if the case is successful, it might not tor. “If CMS had dotted its Is and crossed its Ts, then replace AMP with a new reimbursement model more to AMP would be going into effect now.” pharmacies’ liking. Of the legislative fixes offered in In the suit, the plaintiffs (NCPA and NACDS) asked Congress last year, only the Saving Our Community Judge Royce Lamberth for a preliminary injunction pre- Pharmacies Act of 2007 offered an alternative to AMP. venting CMS from implementing the rule. To make their Still, even though the bill gained 130 co-sponsors in the case, the plaintiffs cited a study conducted by Stephen House, no companion bill was offered in the Senate and Schondelmeyer who served as the expert opinion for the the bill never even came up for a vote in conference. plaintiffs. Director of the PRIME InInstead, AMP remains on the DT CAPSULE stitute at the University of Minnesota, books and government programs Schondelmeyer argued that with the continue to play an increasingly AMP rule, as many as 10,000 to NCPA PAC hopes to dominant role in pharmacy reim12,000 pharmacies in rural and unbursement. In 1992 third-party payderserved urban communities would raise $1 million for ment surpassed cash payments to close, causing irrevocable harm. prescription medicathe 2008 elections pharmacies foryears later federal and The plaintiffs offered a laundry tions. Sixteen list of problems with the rule, arguing that it misrepre- state programs are moving to the fore. According to a sented the intent of the DRA and contravened the AMP survey by the Kaiser Family Foundation that looked at definition in the Social Security Act. The plaintiffs ar- the latest available data, publicly funded programs were gued that the AMP rule does not comply with the So- projected to pay for 39% of all prescriptions in 2006, cial Security Act’s definition of AMP, it includes non- while private insurers were expected to drop to 42%. therapeutically equivalent drugs, and ignores the Federal programs may have already surpassed private inrequirement that the drugs be available in retail pharma- surers as the predominant prescription drug payors. cies in each state. Still, some critics insist that the AMP crisis is In his ruling Judge Lamberth granted the preliminary overblown. Instead, they see the showdown as part of a injunction and also signaled that the defendants were broader market-based adjustment. Pharmacy is moving likely to win the case. “I think the plaintiff does estab- inexorably towards a more rational and market-based lish the likelihood of success on the merits,” Judge Lam- payment system. “AMP is a relatively small part of the stoberth said from the bench when issuing his ruling. “It ry,” explained Adam J. Fein, Ph.D., founder and presiseems to me that the statutory language about whole- dent of Pembroke Consulting. “Pharmacists are being exsalers and retail pharmacy class of trade is clear enough posed to economic realities that they haven’t faced before that it does not provide the ambiguity for the wholesale that are removing protections that protected them from rewriting of those words by [CMS].” fundamental economic realities. Retail pharmacy is now experiencing what has happened in other retail sectors The future of reimbursement over the past 25 years. Pharmacies need to get big, get foWhat happens next is anyone’s guess, admits Rector. For cused, or get out.” According to Fein, unless independent now, pharmacists continue to be paid under the old AWP pharmacies increase their sales volume and number of formula. CMS clearly is in no hurry to implement the units or develop unique specialties, they will not survive. AMP rule. In January CMS refuted the plaintiffs’ case, Pharmacy organizations see the same trends as well. “A but waited until the deadline to file a perfunctory re- major priority for APhA is to push the profession towards sponse. CMS has yet to appeal the preliminary injunction providing more clinical services,” said Hrant Jamgochian, and has not asked for expedited procedures for the case. director, state relations and political action at the APhA. CMS may instead opt to rewrite the rule all over “More private payors are recognizing the benefits that again before the court rules on its legality or forces it to pharmacists add with medication therapy management.” open its books to NCPA and NACDS. “We’d like to Kreling agreed. “It is a quantum leap, forcing us to learn about how the administration ended up exacerbat- think outside the drug,” he said. “It’s like in the good old ing the harm to pharmacy beyond what was in the orig- days when ingredient prices were low but the costs of inal statute,” noted Rector. “That did not just happen. our services were high.” DT http://www.drugtopics.com
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