UPDATE on ExpressScripts/Accredo's power grab into your doctor/patient relationship, emergency care, advance directive...and more

[UPDATE 2/21: I received information that non-Medicare patients can refrain from signing or returning the form but may receive a modified version of the form at a later date.]

This bit of business should scare anyone using prescription insurance, as well as doctors and health care providers. Express Scripts (@ExpressScripts/@ExpressRxHelp )/Accredo (formerly Medco) recently sent out to its customers a packet of documents, a "contract" as it were, for patients to in essence sign a lot of their privacy and medical rights away to this corporate behemoth.

It is a controversial document because of its intrusion into the doctor/patient relationship, its request for a patient's advance directive, and request to authorize the company to "seek emergency treatment as is deemed necessary" for the patient, even though it is not the patient's medical health provider.

It's sad that you probably need an attorney to parse through the carefully crafted legalese designed to give ExpressScripts/Accredo control over your health care via information that it does not need to fulfill a prescription order, to maximize its ability to recover costs that may put your credit at risk, and to minimize its liability if services it performs have adverse results.

Accredo Patient Consent, Acknowlegment and Service Agreement form by Pam Spaulding

Valéria M. Souza (@VSouza_STL) has been working in her spare time as a patient advocate via Twitter, gathering a community of customers of ExpressScripts/Accredo who share a common bond of receiving poor customer services -- missed deliveries, short on dispensed number of meds, runarounds with online reps, denial of legitimate prescriptions -- you name it. She received this "contract" as well and immediately saw the serious problem areas that also caught my attention.

She noted:

Accredo is a wholly-owned subsidiary of Express Scripts (stock market code ESRX), the largest prescription benefits manager (PBM) in the United States. They both administer the plan benefits for people’s prescriptions (i.e. – decide if people can have access to certain meds) and fill those scripts through their own network of pharmacies.

It’s a monopoly in many senses of the word, and the company knows it. Many people simply cannot get their meds anywhere else. They have no choice but to fill with ESRX.

People who get meds from Accredo require specialty meds—expensive, often injectable or infusable drugs used to manage complex conditions like MS, cancer, rheumatoid arthritis, diabetes, etc.—which means we cannot just walk into any pharmacy and fill them. But even if we could, what ESRX has done to people in the past (according to anecdotal reports from patients) is simply refuse to pay for the med unless filled with ESRX’s own mail-order service.

That means that ESRX can do things like pressure people to sign a document giving ESRX the right to “seek emergency treatment as is deemed necessary” and mandate that you provide them with copies of your living Will … and if you refuse to sign this “contract,” they can potentially refuse to (re)fill your medications.

With that in mind, look at section 1, "Consent for Treatment":

"The undersigned patient or legal guardian or parent (of a minor) of the patient hereby consents to receive prescribed therapy from pharmacists, nurses and other health care providers employed by or agents of companies owned by Accredo Health Group, Inc. (collectively Accredo).

I furthermore consent and do hereby authorize Accredo to seek emergency treatment as necessary. This consent is intended as a waiver and release of all liability of Accredo for such products and services, excepting acts of negligence.

If patient's medication will be sent to and administered at a doctor's office, I authorize the patient's doctor to accept and sign on patient's behalf for delivery of such medication from Accredo."

Um...so a customer of Accredo, who has an ongoing relationship in-person with their physician, can have their therapy usurped by unknown health care employees of Accredo at its discretion for whatever reason Accredo deems. Are you OK with that?

And seeking emergency care on your behalf? I can only imagine the legal and medical mess this will cause while your life is on the line, with Accredo working to protect its assets if a product it provides causes harm. I'm no attorney, but the statement of "excepting acts of negligence" is a mere posterior-covering phrase, since we all know that the bar to prove negligence is so high and the cost to litigate so massive for the average person, that Accredo will almost certainly come out on top each time.

And what about Section 8, "Advance Directive Acknowledgment"?

"If patient receives nursing care from Accredo, I further acknowledge that I have been given an explanation of the rights under my state law to accept or refuse medical treatment and my right to formulate advance directives regarding such. I understand I am not required to have an advance directive in order to receive care from Accredo. I understand that I may request, and will be presented with, written material regarding formulating an advance directiive if so desired. I agree to provide Accredo with a copy of the advance directive that I have executed. I will inform Accredo of changes to any such advance directive."

Below that paragraph is a series of check boxes indicating whether you have a living will, advance directive, medical power of attorney, a proxy, and if you need information about advance directives.

Wow.

1. Did you sign up to have Accredo provide direct health care services?!
2. Why is it any of Accredo's business whether you have any of these documents? It is in the business of fulfilling prescriptions provided by YOUR health care professionals.

In sections 3 and 4 the "contract" discusses "Assignment of Benefits" and "Financial Responsibility". The language in #3 is pretty standard in that it seeks to assume the right to "claim, collect, and receive payment from any payor" providing coverage for its products and services. That would be your health insurance provider, such as Blue Cross/Blue Shield. However, my antennae were raised by the language in section 4 regarding assignment of charges to the patient if there is a problem with Accredo receiving payment. Many of these specialty meds for ongoing treatment of chronic conditions or life threatening illnesses, such as cancer, cost thousands and these expenses can potentially bankrupt a family if not covered. My bolding below:

"I understand that I am financially responsible for all products and services rendered by Accredo. I understand that if patient has no third party payor coverage for a product or services or the payor fails to pay, the undersigned accepts full financial responsibility for the incurred charges. I also understand that Accredo is available to help answer my questions regarding my payor benefits and my account status."

An example of why this clause is not clear -- I recently had a run-in with a threat from this 800-pound gorilla when, somehow, their records showed that I was simultaneously prescribed Enbrel and Orencia, two biologics that are never taken together, and both are expensive. I was, under my rheumatologist's care, trying each out, one at a time, to see which therapy was best handling my rheumatoid arthritis (RA). I received a threatening snail mail from Accredo telling me I owed the entire cost of the prescription. My doctor had canceled the Enbrel and ordered the Orencia digitally, in my presence, from the doctor's office. It was an administrative screw up somewhere along the line, but the responsibility to resolve it fell at my doorstep. I had to call my doctor's office and have them scramble to contact the Accredo rep so the dogs would be called off, and that I could receive the Orencia delivery in time.

Under this new clause, it's conceivable that along with this letter, you could receive an invoice from Accredo to pay up. You then have to sit with this aging invoice out there, potentially damaging your credit rating while you resolve where the administrative problem has gone wrong. Yet another reason to have an attorney confirm whether you, the patient, are going to be on the hook for more than you bargained for.

• Think about how many people received this document who may have signed it and returned it without really reading it.
• Think about how many people may not have adequate medical or legal literacy to understand what ExpressScripts/Accredo is asking them for.
• Think of the doctors and health care professionals of the patient who will have to deal with the hand of ExpressScripts/Accredo interfering with health care decisions for their patients.
• What do organizations like the American Medical Association think about ExpressScripts/Accredo's "contract" with its customers?

The ramifications could be far-reaching -- is anyone in the mainstream media looking at this in-progress power grab?

UPDATE: 3:00 PM: ExpressScripts responded with this Tweet:



I'm not sure what "we're on it" means, other than re-tooling the legalese to make it even harder for the consumer to understand the screwing they will get if they sign this contract. I eagerly await a response of substance. I'm sure thousands of these contracts have already mailed and some already returned. What will become of those?