As the opioid crisis ravaged communities across the United States two years ago, Joe Brown, then U.S. Attorney for the Eastern District of Texas, set about fixing blame on Walmart, alleging that its pharmacies were filling prescriptions from “pill mill” doctors, facilitating drug misuse and abuse by overprescribing narcotics.
The Department of Justice has also had a long-running civil investigation into Walmart’s pharmacies. The Bentonville, Arkansas, retail behemoth is now preemptively suing the DOJ, asking a federal district court to untangle the contradictory laws that have left Walmart open to investigation. The “DOJ is threatening to sue Walmart for not going even further in second-guessing doctors,” Walmart said in a press release, while “state health regulators are threatening Walmart and our pharmacists for going too far and interfering in the doctor-patient relationship.”
Walmart has been tightening its policies on filling opioid prescriptions, according to its “opioid stewardship initiative” – not just questioning particular scripts but also refusing to fill any prescription for controlled substances from doctors about whom the company had doubts. In part to appease federal regulators, Walmart applied various restrictions on controlled substances. But soon state authorities accused the company of violating state regulations – even of committing crimes – by blocking prescriptions or even just filling smaller quantities of drugs than doctors had specified. The company also received pushback from medical groups that accused Walmart of trampling on doctors’ prescribing prerogatives.
Walmart’s damned-if-you-fill-the-script, damned-if-you-don’t bind reflects the problems faced by large chain pharmacies, which also include CVS and Walgreens. They are among the chief targets in opioid-related lawsuits that may be some of the most complicated and expensive litigation in American history – the so-called National Prescription Opiate Litigation. The companies didn’t get there on their own: Contradictory regulations, demands, and threats from Washington and the states have combined to create a tangle trapping the pharmacies, leaving them exposed to plaintiffs’ lawyers in a massive “multi-district litigation” playing out in an Ohio court.
Plaintiffs in the National Prescription Opiate Litigation – counties, boroughs, parishes, cities, townships, municipalities, and villages – number in the thousands. They are looking for just about everyone in the opioid business – manufacturers, distributors, and retailers – to pay for the opioid misuse that has been so costly to U.S. society. Plaintiffs’ lawyers are seeking damages well into the billions.
Pharmacies, though, are a curious place to assign blame for the opioid epidemic. They don’t make the drugs: Controlled substances are manufactured by heavily regulated producers. Nor do pharmacies sell opioids on their own authority: They dispense meds prescribed by licensed medical practices. Nonetheless, Walmart and the other chains are attractive targets. Between its stores and its Sam’s Clubs, Walmart has some 5,000 pharmacies operated by over 14,000 pharmacists. The company not only has a large footprint in the business of selling prescription drugs; it also has some of the deepest pockets in all of retail.
Walmart has been trying for years to limit the amount of opioid prescriptions its pharmacists fill. Part of its “opioid stewardship initiative,” launched in 2017, has been to limit customers to a week’s supply of the powerful and dangerous drugs, even if they have been prescribed more. The idea is to reduce the chance of addiction by reducing how long the patient is on the narcotic. The company – clearly responding to the allegations of federal prosecutors – began putting nationwide holds on scripts from any doctor whose pattern of prescribing raised red flags. Walmart developed a computer algorithm to spot dubious doctors.
The pharmacies’ efforts haven’t made many friends among doctors. Last year, American Medical Association Executive Vice President James Madara wrote to Walmart Chief Medical and Analytics Officer Thomas Van Gilder to complain that the company’s “policy has disrupted legitimate medical practices.” He accused the company of trying to supersede the rights doctors have to prescribe under state and federal laws.
It wasn’t the first time the AMA had denounced corporate pharmacies for putting limits on prescriptions. In 2013, Walgreens tightened its policy on filling opioid prescriptions. In response, an AMA committee called on the organization to advocate “legislative and regulatory solutions to prohibit pharmacies and pharmacists from denying medically necessary and legitimate therapeutic treatments to patients.”
Walmart and other pharmacies recognize that they are caught in a bind. They face pressure from the federal government and pursuit by trial lawyers representing thousands of cities and counties in the multi-district litigation, all of whom say chain pharmacies have not been tough enough to stop sketchy sales of opioids. And if they do make it harder for customers to get their pain-killer prescriptions filled, pharmacies face punishment under state laws and regulations – even criminal prosecution.
“We are committed to empowering and defending our pharmacists,” Walmart told RCI, “who unfortunately can face liability no matter whether they fill a prescription or refuse to fill it.”
Eric Felten / RealClearInvestigations
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Reposted with permission