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MEDICAID LAW PHARMACY MANDATES ARE BEING APPLIED BY STATES TO ALL PATIENTS, NABP SAYS; LIABILITY ATTORNEY TELLS NACDS TO DOCUMENT COUNSELING SESSIONS

Executive Summary

Most states are requiring that mandates under the 1990 federal rebate law for pharmacy services to Medicaid beneficiaries be applied to all patients, National Association of Boards of Pharmacy Executive Director Carmen Catizone told a Sept. 2 session of the National Association of Chain Drug Stores pharmacy conference in Chicago. "The breadth of the impact" of the Medicaid law (OBRA '90) "is reflected in how active the states have been in reviewing this legislation and expanding it beyond Medicaid recipients," Catizone asserted. Citing information from NACDS and NABP, he said that of the more than 40 states that have enacted or are enacting legislation or regulations pursuant to the 1990 law, "more than two-thirds of those states are applying those standards to all patients." Health Care Financing Administration Program Analyst Thomas Fulda told the conference that drug use review (DUR) regulations are "quite likely" to be published "before the end of September." Under the 1990 Medicaid law, HCFA must publish regulations for use by states to enact statutes and regs specifying pharmacy requirements for computerized prospective DUR services, maintenance of patient profiles and patient counseling. Fulda noted that the expected September publication, in fact, will entail "interim final regulations," which will "take effect upon publication" but remain subject to a 60-day comment period and subsequent amendment. If state DUR boards are not established before the statutory Jan. 1, 1993 deadline to review and approve pharmacies' concurrent/prospective DUR software, pharmacies would still be able to participate in the Medicaid program and be reimbursed, Fulda pointed out. NACDS President Ronald Ziegler wrote to HHS Secretary Sullivan earlier this summer to express concern about the ability of pharmacies in certain states to participate in the program because a number of states had yet to establish regs, appoint DUR boards and certify pharmacy software. "We would be out of our minds to" deny payment "because the success of the DUR program in general and the prospective DUR program in particular depends very largely on the willingness of the pharmacy community to get in there and make it work," Fulda said. Pharmacists Mutual Insurance Company General Counsel Ken Baker said pharmacists should not only counsel patients but also keep records of their counseling sessions to protect themselves from liability. Noting that the cases involving pharmacy liability allege failure to counsel, Baker said "the first thing to do is counsel" your patients. To protect yourself against a case that may be brought years after the prescription was dispensed, "you need to have some type of a documentation...to show what you did," he said. Baker developed a model form for "pharmacist counseling notes" for the recording of a patient's name, prescription, medication history, information checked for in the prospective drug review, counseling information discussed with the patient and the identity of the individual who picked up the prescription. He also advises pharmacists to sign and date such records and to keep them for at least three years. In addition, Baker urged pharmacists to try to establish a rapport with their patients, and he noted that counseling helps to build pharmacist-patient relationships. "One of the things you learn from handling professional liability claims," Baker said, is that "the greater the rapport that you have with your particular patients, the less likely they are to sue."
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