In OIG Advisory Opinion 14-06, the Office of Inspector General (OIG) concluded that payment by a specialty pharmacy to a retail pharmacy on a “per-fill” basis for services provided by the retail pharmacy could violate the Anti Kickback Statute and Civil Money Penalty provisions.
The specialty pharmacy, as the requestor, proposed to pay retail pharmacies a “fair market value” “per-fill” payment for services provided to patients by the retail pharmacy for specialty prescriptions that the retail pharmacy could not fill but instead referred to the specialty pharmacy. Those services would include recording patient specific medication history, gathering patient and prescriber demographic information, counseling patients on appropriate use of medications, informing patients about specialty drug access, obtaining patient consent to forward the prescription to the specialty pharmacy, transferring the prescription information, and providing ongoing assessments for subsequent refills. In other words, the retail pharmacy would basically be providing information that it would provide anyway.
The OIG concluded that the “proposed arrangement could potentially generate prohibited remuneration under the Anti Kickback Statute and the OIG could potentially impose administrative sanctions”. They also stated in the Opinion:
There is a significant risk that the per-fill fees would represent compensation for the local pharmacies generating business, including federal healthcare program business, rather than solely compensation for bona fide commercially reasonable services.
This seems like the type of request submitted by someone who is looking for a negative response in order to justify its refusal to pay these “per-fill” fees. It is hard to imagine the OIG condoning any proposed practice that would specifically pay a fixed fee, fair market value or otherwise, only for patients that were referred to the specialty pharmacy.