Drug Formulary Law is Blocking Patients' easy Access to Prescription Drug Treatments
January 2006
On June 26, 2003, Governor Locke signed major health care legislation (SB 6088) intended to reduce the cost of prescription drugs for state-funded health care programs. The law requires pharmacists to substitute a less expensive drug taken from a state-approved Preferred Drug List for the drug prescribed by a physician, if the state determines the cheaper drug will have equal medical efficacy.
Now that the law has been in effect for over two years, it is possible to assess its effectiveness in achieving its stated goals. New evidence indicates that one important provision of the law is not being implemented in the way the Legislature intended. The provision, called "dispense as written," was key to gaining support from many legislators and the Washington Medical Association.
"Dispense as Written" Provision:
The law: The new law requires that, for all patients covered by state health care programs, pharmacists must substitute a cheaper drug for one prescribed by a doctor unless "...the endorsing practitioner has indicated on the prescription that the non-preferred drug must be dispensed as written... " (Section 5, paragraph 1 of the bill).
Current Practice: In practice it turns out there is a substantial loophole in this key provision of the law: it only applies to drug classes that have been reviewed by the Oregon Health and Science University (OHSU) and the state Pharmacy and Therapeutics Committee. Three essential types of medicine that have refill protection under the law (chemotherapy, immunosuppressive and antiretroviral drugs) are not scheduled to be reviewed. This means these treatments will not be available through the "Dispense as Written" protections lawmakers intended for such drugs.
New drugs not reviewed by OHSU and the Pharmacy and Therapeutics Committee are only available to patients through prior authorization from the state. Getting a drug approved by OHSU and the Pharmacy and Therapeutics Committee can take up to a year. In the meantime, attending physicians are not allowed to dispense these drugs to sick patients on their own authority.
This policy creates three regulated classes of drugs, instead of two as the original legislation envisioned. These classes can be termed preferred, non-preferred with Dispense as Written, and non-preferred with prior authorization. Many legislators never contemplated or intended such a complicated review procedure during the drafting and passage of SB 6088.
Further, Medicaid is requiring patients suffering from depression to fail on the drugs from the Preferred Drugs List at least once and, in some cases, twice before their illness becomes eligible for Dispense as Written protection.
The result of the overly-complicated preferred drug regulation and the Medicaid "fail-first" policy is that sick patients who would benefit from new and promising drugs are being denied access to these treatments.