department of health and social services

Division of Medicaid and Medical Assistance

PROPOSED

PUBLIC NOTICE

WITHDRAWAL OF NOTICE OF INTENT

Pharmaceutical Services: Mail Order Pharmacy Services

In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and under the authority of Title 31 of the Delaware Code, Chapter 5, Section 512, notice is hereby given that the Notice of Intent published in the General Notices section of Volume 8, Issue 12 of the June 1, 2005 issue of the Delaware Register of Regulations has been withdrawn.

Summary of Withdrawal

On June 1, 2005, the Division of Medicaid & Medical Assistance (DMMA) published for public comment a notice of intent to submit an amendment to the Title XIX Medicaid State Plan to the Centers for Medicare and Medicaid Services (CMS) to implement mail order prescription service. DMMA withdraws its notice of intent published on June 1, 2005 at 8 DE Reg. 1737 as of October 1, 2005.

Summary of Comments Received with Agency Response

The Governor's Advisory Council for Exceptional Citizens (GACEC); the State Council for Persons with Disabilities (SCPD); Macaulay and Burtch, P.C., EPIC Pharmacies, Inc.; the National Community Pharmacists Association; the National Association of Chain Drug Stores; and, Cape Pharmacy offered the following comments summarized below. DSS has considered each comment and responds as follows:

Subject to two (2) caveats, the GACEC and the SCPD endorse the concept of the regulation since there may be a realization of cost savings and mail order may be more convenient for some beneficiaries. The caveats are: 1) clarify prior authorization aspects of the standards; and, 2) clarify that denial of prior authorization would result in a notice to the beneficiary of appeal rights.

The other commenters strongly oppose mail order pharmacy for Medicaid recipients. These comments fall in seven (7) discrete areas. These comment areas are summarized below:

1. Mail order programs have hidden financial impact, i.e., mail order pharmacies may steer recipients to brand name drugs over generics.

2. Medicaid consumers are better served by community pharmacies, i.e., explaining dosing and side effects.

3. Safety issues, i.e., who has control over filling and verifying the prescription.

4. Level playing field for community pharmacies, i.e., savings of $15 per month is a substantial incentive to choose mail order.

5. PBMs are not regulated in Delaware.

6. The mail order facility may not be regulated in Delaware.

7. Federal prohibition against paying remuneration to Medicaid beneficiaries, i.e., any provider offering the proposed co-pay waiver could be considered in violation of the federal anti-remuneration law.

Agency Response: In response to the written public comments received, DMMA withdraws its “Notice of Intent”. DMMA credits the advocates and partners who gave comments that led to this decision.