318:62 Pharmacy Rights During Audit. –
Notwithstanding any other provision of law, whenever a managed care company, insurance company, third-party payer, or any entity that represents a responsible party conducts an audit of the records of a pharmacy, the pharmacy has a right to all of the following:
I. To have at least 7 days' advance notice of the initial on-site audit for each audit cycle. A pharmacy that requests an additional 7 days prior to the commencement of an audit shall be granted 7 additional days.
II. To have any audit that involves clinical judgment be done with a pharmacist who is licensed and is employed or working under contract with the auditing entity.
III. Not to have clerical or record-keeping errors, including typographical errors, scrivener's errors, and computer errors, on a required document or record, in the absence of any other evidence, deemed fraudulent. This subdivision does not prohibit recoupment of fraudulent payments.
IV. If required under the terms of the contract, to have the auditing entity provide a pharmacy, upon request, all records related to the audit in an electronic format or contained in digital media.
V. To have the properly documented records of a hospital or any person authorized to prescribe controlled substances for the purpose of providing medical or pharmaceutical care for their patients transmitted by any means of communication in order to validate a pharmacy record with respect to a prescription or refill for a controlled substance or narcotic drug, in compliance with state laws.
VI. If an on-site audit is conducted for a reason other than an identified problem, the audit shall be limited to no more than 250 selected prescriptions and the third party plan or audit company must provide a masked list of prescriptions to the pharmacy to assist in preparation. The list is considered masked if the last 2 numbers of the prescription are marked with an "X." This procedure allows the pharmacy to pull the book the audited prescription is in, however it does not allow the pharmacy to pull the specific prescription audited. Additionally, all of the invoices for actual dispensed prescriptions, with prices redacted, may be obtained from the pharmacy's wholesaler or distributor upon approval from the pharmacy.
VI-a. To have the same number of days to respond to a claim in an audit that have passed since the origination of the claim.
VII. To be subject to no more than 2 audits in one calendar year, unless fraud or misrepresentation is reasonably suspected.
VIII. Except for cases of Food and Drug Administration regulation or drug manufacturer safety programs, to be free of recoupments based on any of the following unless defined within the billing requirements set forth in the pharmacy provider manual:
(a) Documentation requirements in addition to or exceeding requirements for creating or maintaining documentation prescribed by the pharmacy board or by the provider manual or contract.
(b) A requirement that a pharmacy or pharmacist perform a professional duty in addition to or exceeding professional duties prescribed by the board.
IX. To be audited under the same standards and parameters as other similarly situated pharmacies audited by the same entity.
X. To have the period covered by an audit limited to 6 months from the date a claim was submitted to, or adjudicated by, a managed care company, an insurance company, a third-party payer, or any entity that represents responsible parties, unless a longer period is permitted by a federal plan under federal law.
XI. Not to be subject to the initiation or scheduling of audits during the first 5 calendar days of any month for any pharmacy that averages in excess of 600 prescriptions per week due to the high volume of prescriptions filled during that time and for patient care considerations, without the express consent of the pharmacy. The pharmacy shall cooperate with the auditor to establish an alternate date should the audit fall within the days excluded.
XII. Not to have the accounting practice of extrapolation used in calculating recoupments or penalties for audits, unless otherwise required by federal requirements or federal plans.
XIII. The auditor shall not include dispensing fees in the calculations of overpayments unless the prescription is considered a misfill. A misfill shall be defined as a prescription not dispensed, a medication error, a prescription whereby the prescriber denied authorization, or where an extra dispensing fee was charged.
XIV. (a) Auditors shall only have access to previous audit reports on a particular pharmacy if the previous audit was conducted by the same entity, except as required for compliance with state or federal law.
(b) Additionally, pharmacies subject to an audit may use the following records at the time of the audit to validate a claim for a prescription, refill, or change in a prescription:
(1) Electronic or physical copies of records of a health care facility, or a health care provider with prescribing authority.
(2) Any prescription that complies with state law.