By Steve Ariens, PD.

Retired pharmacist and chronic pain advocate Steve Ariens has some tips for chronic pain patients in fighting their insurance companies.

As we enter a new year, many PBM (Prescription Benefit Managers) and insurance companies are using the war on drugs and “opiate crisis” as an excuse/reason to cut back on the coverage of pain medications and other controlled medications. Some believe that it is primarily to help boost their bottom line profits, while others believe that it is an effort to head off being sued by various cities, counties, states and others … like they are now suing the numerous pharmaceutical companies and pharmacy wholesalers. The tactic has been used before – they are much like the lawsuits these same/similar entities did in the late 1990’s to the Tobacco industry resulting in a $200+ billion fine to that industry.

Placing a medication on an insurance company’s formulary plan gives the patient the impression that a particular medication is covered until the “asterisk” behind its name indicating that it simply requires a Prior Authorization (PA) in order to get it paid for. Often the hoops/hurdles/obstacles that have to be cleared to get a PA approved are obscure or less than transparent–making it time consuming or nearly impossible in getting a “PA medication” approved. Some PBM’s/insurance companies will use both a PA and QL (Quantity Limit) to restrict a patient’s access to particular medication(s).

The practice of medicine has some rather simple basics. All prescribers are licensed at the state level and all state medical practice acts require that in order for a prescriber to establish a treatment plan, they must first do a IN PERSON PHYSICAL EXAM. Once that exam has been done the prescriber then can legally proceed to develop a patient treatment plan for the patient. The practice of medicine is simple – examine the patient, diagnose any health issues, develop a plan of treatment is designed to treat/cure, and/or manage/maintain the issues associated with the patient’s various health issues. These basics become very important as the insurance/PBM industry tries to utilize PA’s and QL’s to impose their wishes on the various medication treatments.

Basically, there are three types of health insurance, individual/small employer policies, ERISA self-funded employer policy and Medicare/Medicaid. Because the vast majority of chronic pain pts are on Social Security/Medicare disability, Medicare/Medicare Advantage, or Medicaid. This article will focus on those, but there are many similar paths that a patient can take with the other health insurance policies.

What patients may not know- and be assured the PBM/insurance companies will not tell you unless you ask…that there are FIVE LEVELS OF APPEALS:

Your Medicare drug plan will send you a written decision. If you disagree with this decision, you have the right to appeal.

Level 1: Redetermination from your plan

Level 2: Review by an Independent Review Entity (IRE)

Level 3: Hearing before an Administrative Law Judge (ALJ)

Level 4: Review by the Medicare Appeals Council (Appeals Council)

Level 5: Judicial review by a federal district court

There are links to the details of these appeal processes.

The patient needs to contract the PBM/Insurance, regarding the approval, especially if they miss time deadlines. If nothing else, tell them that you want to get to the next appeal level if they are not going to pay for it. Knowing that a patient is going to be aggressive in the appeals process, may get them to give up and approve the medication.

The patient can expect to have the first appeal denied, because it is being reviewed by the same employees that put the PA/QL in place. The easiest and most profitable thing for the PBM/insurance company to do is SAY NO.

Remember it’s frustrating for them is the patient keeps appealing. They know that the farther the patient takes the appeals, the more likely they will get approved and they will have to pay for it. The whole PA/QL process is to frustrate the patient and get them to “give up and go away”.

A patient also has the option of stating that they require a “emergency determination” which means a decision has to be made in 72 hrs. For instance, if the patient has been maintained – and physically dependent – on an opiate, he or she could be thrown into cold turkey withdrawal… not to mention the normal side effects of untreated elevated pain, nausea/vomiting, sweating, stomach cramps. They are also at risk of a hypertensive crisis that may lead to a stroke which could lead to permanent paralysis and/or death.

If the PBM/insurance wants to change the medication that has been working for the patient and/or reducing the daily dose – you can argue they are attempting to practice medicine without a license. How they will try and get around this by getting the patient’s prescriber to “agree” with their limitations… which takes the “practicing medicine without a license” off the table for the insurance/PBM.

The doctor has a role to play. If the patient’s prescriber refuses to “go along” and then PBM/insurance continues to insist on changing the medication that the patients has been stable on… then they are entering the practice of medicine without a license arena.

All of these PBM/insurance companies have a “medical director” on staff. One could assume that if someone is attempting to change a medication the only person on the company’s staff that could sign off would be the company’s medical director.

Of course, the medical director has not done a in person physical exam on the patient (the patient is simply a name on a computer screen) and quite likely does not have a license to practice medicine in the state in which the patient lives.

It may be appropriate at this point to send the Medical Director and the Legal Department of the PBM/insurance company a certified letter stating that the patient is going to file complaint, including unprofessional conduct, with the medical licensing board in the state the prescriber is licensed in and the state in which the patient is residing……unless the PBM/insurance company approves payment for the medication which the patient has been stable and maintained on for some time.

It may also be appropriate to file a grievance with www.cms.gov 800-MEDICARE against the PBM/insurance company claiming that their decision(s) is going to cause the patient to become house/bed/chair confined, adversely affecting a patient’s quality of life.

One issue that patients caught in this PA/QL “trap” needs to be aware of is that the DEA considers it a RED FLAG for you to purchase controlled meds and pay CASH when they have insurance. I have no confidence in the DEA looking at the issue that the insurance refuses to pay for the controlled medications before they could consider taking actions against the patient, prescriber, pharmacy involved.

If the patient decides to pay cash for their necessary medications, make sure to keep the receipts and file them with the PBM/insurance for reimbursement. They might just “screw up” and reimburse the patient. If they do, keep a copy of the reimbursement for the appeal process to show how inconsistent their policies are.

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