If a Medicaid recipient knowingly obtains health care that exceeds program limits or is not medically necessary, the Department may enroll the recipient in the “lock-in program,” which limits the recipient to one prescriber and one pharmacy for controlled substances. In this case, the Department sought to enroll the petitioner in the pharmacy lock-in program after finding he consistently refilled prescriptions early over the course of the prior year. Noting that there was no evidence the petitioner used the drugs illegally or inappropriately, ALJ Nicole Bjork concluded it was not appropriate to enroll the petitioner in the lock-in program.
Compare this case with MPP 211770, a similar case with an opposite outcome.
This decision was published with support from the Wisconsin chapter of the National Academy of Elder Law Attorneys and Krause Financial.
Preliminary Recitals
Pursuant to a petition filed on November 7, 2024, under Wis. Stat. § 49.45(5), and Wis. Admin. Code § HA 3.03(1), to review a decision by the Division of Medicaid Services regarding Medical Assistance (MA), a hearing was held on December 11, 2024, by telephone.
The issue for determination is whether Petitioner mis-utilized prescription services.
There appeared at that time the following persons:
PARTIES IN INTEREST:
Petitioner:
—
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By: Katie Counts
Division of Medicaid Services
PO Box 309
Madison, WI 53701-0309
ADMINISTRATIVE LAW JUDGE:
Nicole Bjork
Division of Hearings and Appeals
Findings of Fact
- Petitioner is a resident of Waukesha County.
- On September 26, 2024, an agency representative reviewed Petitioner’s pharmacy services between September 12, 2023, through September 3, 2024. Based on the review, the agency representative determined that Petitioner’s prescriptions of restricted medications were routinely refilled early.
- On September 30, 2024, the agency sent Petitioner a notice informing him that he was going to be enrolled in the Lock-In program after a review of his drug or medical claims. The Lock-In program restricted Petitioner to one prescriber for restricted medications and one pharmacy when having those prescriptions filled.
- The agency representative stipulated that Petitioner only used two pharmacies and that those pharmacies are in the same group and may reasonably be assumed coordinating care. Further, the agency stipulated that Petitioner only has three prescribers and that two of the three are from the same group, and again may reasonably be assumed to be coordinating care.
- The agency representative testified that Petitioner’s refill history includes early refills of all controlled substances by several days each month. The early refills over time put him ahead of schedule for all controlled substance medications. She testified that this is why they are seeking to enroll him in the Lock-In program. She further testified that neither the Petitioner not his provider has modified this practice despite the agency sending out a Warning Letter. She further testified that health concerns could result from the overuse of the prescribed medications, though concern for health was not the basis for the determination. Rather, the determination was made to enroll Petitioner in the Lock-In program due to habitual early prescription refills.
- The Warning Letter described by the agency was not submitted into evidence. Rather, the agency submitted the history of use by Petitioner as well as a copy of the letter notifying Petitioner that he was going to be enrolled in the Lock-In program.
- There is no evidence that Petitioner was using the early drugs illegally or even outside his health regime.
- Susan Merrick, a nurse case manager from —, also testified. She noted that she reviewed Petitioner’s prescription refill history at length and noted no issues in his refill pattern.
- No evidence was submitted that Petitioner actually obtained the prescriptions on the refill dates.
Discussion
The Wisconsin Administrative Code, §DHS 104.03(1)(a), provides as follows:
If the department discovers that a recipient is abusing the program, including abuse under s. HFS 104.02(5), the department may require the recipient to designate, in any or all categories of health care provider, a primary health care provider of the recipient’s choice, except when free choice is limited under s. HSS 104.035.
The designation of a primary provider is known as the MA Lock-In program. Included in the abuses under §DHS 104.02(5) is (i) “knowingly obtaining health care in excess of established program limitations, or knowingly obtaining health care which is clearly not medically necessary.”
After reviewing the evidence and hearing from both sides, I conclude that the Lock-In program is not appropriate for Petitioner. Specifically, the agency has not convinced me that obtaining prescriptions early is a misutilization of the program when there is no evidence or even an allegation that Petitioner is misusing the prescriptions. Further, since Petitioner has always used only two pharmacies under the same system, which the agency admitted means we can reasonably assume they are working in tandem, I fail to see how putting him in the Lock-In program will resolve the issue of early prescription filling. It is evident to me that if there is a problem here, it is with the pharmacy. Pharmacy records should make evident that prescriptions are being filled too early, and the pharmacy could then alter the refill date. If the pharmacy has been filling prescriptions too early all along, I fail to see how locking Petitioner into that pharmacy will solve the problem.
Katie Counts, the agency pharmacist consultant, explained that her office can monitor Petitioner’s usage in the lock-in program, but I fail to see why his usage cannot be monitored outside the lock-in program. I also fail to see why this issue cannot be resolved by telling the pharmacy to pay closer attention to the refill dates. Further, while Ms. Counts stated that a warning letter was sent, there is no evidence where this warning letter was sent or when. Petitioner testified that he was unaware of this letter. The evidence does establish that his records were reviewed on September 26, 2024 and that a determination to enroll him into the Lock-In program was made only days letter, on September 30, 2024. Thus, even if a Warning Letter was sent after the review, there wasn’t time to even implement any changes. Finally, the fact that a more closely watched regime might be healthier for Petitioner is not a factor in the lock-in determination.
Conclusions of Law
Putting Petitioner in the MA Lock-In program is inappropriate because it has not been shown that he is mis-utilizing prescription services by filling prescriptions early.
THEREFORE, it is
Ordered
That the matter be remanded to the DMS with instructions to rescind Petitioner’s placement in the MA lock-in program, within 10 days of this decision.
[Request for a rehearing and appeal to court instructions omitted.]
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