ROUND 2: MAIL VS. RETAIL IN CALIFORNIA

MICHAEL SLEZAK

SACRAMENTO -- A law passed by the state legislature here last year that could have required mail-order pharmacies to telephone patients and counsel them on their prescriptions is being challenged and may be overturned by the end of the summer.

Last year, California passed SB 1051, 1993, legislation supported by the California Pharmacists Association, giving the California State Board of Pharmacy the right to require mail-order pharmacies to counsel every patient via telephone prior to dispensing a new or changed prescription.

Then, on May 27, the California State Senate approved statute SB 2087, legislation to repeal statute SB 1051, 1993. Although the original bill passed both houses of the state legislature without a single dissenting vote, the vote on this new measure was 21 to 16 to repeal.

"The issue is whether oral consultation is something useful, meaningful and valuable," said John Cronin, vice president, legal affairs for CPA. "If it is, then it should be required for all pharmacies, not just for ones that happen to be community pharmacies."

On the other side of this issue is the American Managed Care Pharmacy Association. "Different settings of pharmacy practice should be looked at to present information in different ways," said Del Konnor, executive vice president of AMCPA, representing mail-order pharmacies.

As things now stand, the California State Board of Pharmacy is set to meet July 28 to hear testimony and vote on a regulation that would require mail-order pharmacies to telephone patients on any new or changed Rx.

The board's power to enact this regulation could be taken away, however, if the state assembly passes SB 2087 and if it is signed into law by Governor Pete Wilson. The assembly will be back in session Aug. 8.

The antagonists in this debate do agree on one thing: the result of this California showdown could cast a long shadow across the country concerning the extent to which mail-order pharmacies must provide oral counseling, as community pharmacies are required to do, or whether in the case of mail-order pharmacies, written materials will be deemed sufficient.

"If this regulation passes in California, it will have national impact," said Cronin. He added that, if the CPA is ultimately victorious, "the mail-order people have suggested they could mount a legal challenge against us."

Cronin said in his discussions with mail-order pharmacy representatives, they indicated "the cost of providing oral consultation would amount to a dollar level comparable to what the Health Care Financing Administration estimated would be required from community pharmacies to provide oral consultation.

"We would definitely contest their assertion this is an extraordinarily expensive amount," he said. "It's no more an expense for them than it is for anybody else. Medco Containment already makes about 4 million calls a year to doctors to change drugs. There's certainly no reason why they can't make that number of calls to advise patients about how to take the medication." "Under this regulation, the CPA has disguised health and safety as economics in competition," countered AMCPA's Konnor. "If they can increase our business costs, the chances are they can either be more competitive or at least we'll have a tougher time providing services.

"With the emphasis being placed by our current administration on controlling health care costs," Konnor added, "it seems ironic that boards of pharmacy, or pharmacy associations, would want to introduce legislation that increases the cost of delivering medication and doesn't provide any additional service."

Mail-order pharmacies have argued that different counseling requirements should apply to different pharmacy settings and that oral counseling is not necessarily the most efficient and valuable form of counseling.

"Written patient counseling information is the probably the best guide a patient can use," said Konnor. "Oral counseling can be faulty, or maybe not even remembered. Our members have taken a leadership role in the whole area of patient counseling through written communication."

The National Association of Retail Druggists, however, called the arguments of mail-order proponents "ludicrous." John Rector, national counsel, said NARD was not even in favor of the CPA's original proposal because it did not attack what his organization saw as the major flaws of mail-order pharmacy.

"Would a physician distributing a written handout or flier substitute for counseling? Would a pediatrician send only a written note to a parent with a sick child?" asked Rector. "What the studies really show is when you do counseling face to face and then you supplement it with a written reminder and then follow up with calls periodically, that will get you toward optimum compliance."

Rector said he was not satisfied with statute 1051 because it did not acknowledge the problem of pharmacists who are unlicensed in California and practicing pharmacy in the state via telephone.

As for mail order's notion that proactive calls to patients would cost too much, Rector scoffed: "No one held a gun to these people's head when they decided to practice pharmacy over the phone. Where is the burden for them? The burden is on the consumers who are not protected from unlicensed practitioners."

Konnor responded: "In the long run, what program will pay for the pharmacist to counsel every patient every time? I don't think any. So one has to be practical."

Konnor added the CPA should clean up its own act before targeting mail-order companies' practices.

"The California pharmacists and others should do a survey to see if their pharmacists are actually counseling," he said. "I don't think it's happening. I just got medicine dispensed for me by a chain drug store here in the Virginia area and the pharmacist never came out to see me."

Konnor said he was also disturbed because the CPA wants mail-order pharmacists to provide counseling before the medication reaches the patient.

"What sounds logical as far as a rule, does not make professional common sense," said Konnor. "It is not appropriate to counsel a patient unless they have the medication in their hands. Or unless the patient has initiated the call."