# Manufacturer Audit Guidelines and Dispute Resolution Process 0905-ZA-19

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URL: https://www.frixlaw.com/law-library/documents/fr%3A96-31541

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** December 12, 1996
- **Citation:** 61 FR 65406

## Text

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health Resources and Services Administration

Manufacturer Audit Guidelines and Dispute Resolution Process
0905-ZA-19

AGENCY: Health Resources and Services Administration, HHS.

ACTION: Final notice.

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INFORMATION: Section 602 of Public Law 102-585, the ``Veterans Health
Care Act of 1992,'' enacted section 340B of the Public Health Service
Act (the ``PHS Act''), ``Limitation on Prices of Drugs Purchased by
Covered Entities.'' Section 340B provides that a manufacturer who sells
covered outpatient drugs to eligible (covered) entities must sign a
pharmaceutical pricing agreement with the Secretary of Health and Human
Services (``HHS'') in which the manufacturer agrees to charge a price
for covered outpatient drugs that will not exceed the amount determined
under a statutory formula.
Section 340B(a)(5) of the PHS Act identifies certain requirements
for covered entities concerning potential double price reductions and
drug diversion. A covered entity must permit the manufacturer of a
covered outpatient drug to audit the records of the covered entity
directly pertaining to the entity's compliance with the requirements of
section 340B(a)(5) (A) and (B) as to drugs purchased from the
manufacturer. These audits must be conducted in accordance with
guidelines established by the Secretary, acting through the Health
Resources and Services Administration, Bureau of Primary Health Care,
the Office of Drug Pricing (the ``Department''). Section 340B(a)(5)(C)
states that the Secretary shall establish guidelines relating to the
number, scope and duration of the audits. The Department has defined
these terms and provided suggested audit steps.
Further, the Department anticipates that disputes may arise between
covered entities and participating manufacturers regarding
implementation of the provisions of section 340B. To resolve these
disputes in an expeditious manner, the Department has developed a
voluntary dispute resolution process.
The purpose of this notice is to inform interested parties of final
program guidelines concerning manufacturer audit guidelines and the
dispute resolution process.

FOR FURTHER INFORMATION CONTACT: Director, Office of Drug Pricing,
Bureau of Primary Health Care, Health Resources and Services
Administration, 4350 East-West Highway, West Towers, 10th Floor,
Bethesda, Maryland 20814, Phone: (301) 594-4353.

EFFECTIVE DATE: January 13, 1997.

SUPPLEMENTARY INFORMATION:

(A) Background

Proposed manufacturer audit guidelines and the proposed informal
dispute process were announced in the Federal Register at 59 FR 30021
on June 10, 1994. A comment period of 30 days was established to allow
interested parties to submit comments. The ODP received comments from
12 sources including pharmaceutical manufacturers, a covered entity,
organizations representing pharmaceutical manufacturers or covered
entities, and the American Institute of Certified Public Accountants.
The following section presents a summary of all major comments,
grouped by subject, and a response to each comment. All comments were
considered in developing this final notice. Changes were also made to
increase clarity and readability.

(B) Comments and Responses--Manufacturer Audit Guidelines

Comment: A number of commenters addressed the requirement that a
manufacturer establish reasonable cause and obtain approval from the
Department before conducting an audit. While some commenters believe
that the statute gives manufacturers the right to routinely conduct an
audit as a normal business practice without the need for Departmental
approval, other commenters indicated that manufacturers should be
required to provide objective documentation that a violation has
occurred before being granted permission to audit.
Response: Section 340B(a)(5)(C) provides that audits will be
performed in accordance with procedures established by the Secretary
relating to the number, duration, and scope of the audits. These audits
must pertain directly to the entity's compliance with the prohibitions
against drug diversion and the generation of duplicate drug rebates and
discounts with respect to drugs of the manufacturer. See Section
340B(a)(5)(A) & (B). In order to ensure that the audits pertain to
compliance with the prohibitions in the aforementioned subparagraphs,
it is appropriate to require manufacturers to submit an audit work plan
for the Department's review and to establish reasonable cause. Although
the Department will not require pre-approval of the plan, this will
ensure that the audits are performed where there are valid business
concerns and are conducted with the least possible disruption to the
covered entity. Significant changes in quantities of specific drugs
ordered by a covered entity and complaints from patients/other
manufacturers about activities of a covered entity may be a basis for
establishing reasonable cause.
Comment: Omit the requirement to submit an audit plan for the
Department's approval.
Response: The requirement for approval of an audit plan has been
dropped. The Department's review of the audit workplan is necessary to
ensure that audit work performed is relevant to the audit objectives
while protecting patient confidentiality and information of the covered
entity which is considered proprietary. If after this review the
Department has concerns regarding the audit plan it will work with the
manufacturer to incorporate mutually agreed-upon revisions to the plan.
Comment: Commenters indicated that audits would not be meaningful
without

[[Page 65407]]

a clear definition of a ``patient of the entity.''
Response: Because sufficient criteria must be provided by which
auditors (and others) can determine if consumers of drugs purchased at
the mandated prices are eligible to receive covered drugs, a definition
of ``patient of the entity'' is necessary. ODP has addressed this issue
by means of Federal Register final notice dated October 24, 1996 (61 FR
55156)
Comment: Establish a timeframe or deadline for the various steps in
the process. The commenters are concerned that the process could be
unreasonably delayed should the Department, the covered entity, or the
dispute resolution committee not act in a timely manner. For example,
an audit cannot begin until the Department grants permission and
approves the audit workplan, while a covered entity's refusal to
respond to an audit report would preclude the next step in the process
from taking place. The suggestions for timeframes included to shorten
from 60 to 30 days the timeframe for covered entities to respond to a
manufacturer's audit findings and apply a 30-day timeframe for each
step except for the act of performing the actual audit.
Response: There should be timeframes applicable to the actions
required by the covered entities and the Department. The following
timeframes have been incorporated into the guidelines:
The Department will review an audit work plan submitted by
a manufacturer within 15 days of submission;
The requirement for covered entities to respond to audit
findings and recommendations within 60 days has been reduced to 30
days;
Comment: Access to records should include the records of any
organization employed by the covered entity to purchase or dispense
drugs or file Title XIX claims on the entity's behalf.
Response: The auditors must have access to all records necessary
for identifying and determining the eligibility of the ultimate
consumer of drugs purchased at the discount price and whether Medicaid
rebates were also claimed for those drugs. The guidelines have been
revised to indicate that any organization purchasing or dispensing
covered drugs or filing Title XIX claims on behalf of a covered entity
is subject to the same audit requirements as the covered entity.
Comment: There were concerns with the Department's March 1994
Guideline Letter concerning the contracted pharmacy mechanism. These
commenters believe that unforeseen business relationships and
activities by covered entities under these guidelines could result in
new patterns of fraud and abuse.
Response: The Department has addressed the contracted pharmacy
mechanism in a separate Federal Register final notice on August 23,
1996 at 61 FR 43549.
Comment: Compliance with the requirements outlined in the
Government Auditing Standards will significantly increase the cost of
performing audits and require the use of independent accountants rather
than internal audit staff. It was suggested that manufacturers use
their own internal auditing standards or those of the Institute of
Internal Auditors.
Response: Conducting audits in accordance with the Government
Auditing Standards will provide assurances that audits will be
performed in accordance with generally accepted auditing standards
relating to professional qualifications of the auditors, independence,
due professional care, field work, and reporting of the audit findings.
Compliance with these standards will also ensure audit uniformity and
consistency and adequacy of documentation to permit independent review
in cases where disputes arise.
Comment: The guidelines should stipulate the record retention
requirements for covered entities (i.e., indicate how long records must
be maintained for possible audit).
Response: Covered entities should maintain records to demonstrate
the distribution and use of covered drugs for a period of not less than
3 years.
Comment: There should be greater audit latitude and cooperation
between manufacturers and entities as allowed by the ``Medicaid
Agreement.''
Response: The ``Medicaid Agreement'' permits manufacturers to audit
the Medicaid utilization information reported by the State. In this
instance, manufacturers are auditing information received by the State
and are permitted to develop mutually beneficial procedures with the
State. This is a very different situation from the audits permitted by
section 340B. Pursuant to section 340B authority, a manufacturer may
audit an entity whose only connection to the State or Federal
government is in the form of a grant or reimbursement that it receives.
In this instance, the manufacturer is permitted to audit only pursuant
to guidelines established by the Secretary.
Comment: In order to maximize profits, covered entities could
require patients to purchase covered drugs from them, thus infringing
on patients' rights to choose their own providers.
Response: Patients of covered entities have the right to fill their
prescriptions at the pharmacy of their choice. Of course, if the
patient chooses to have the prescription filled at a location other
than with the covered entity, discount pricing cannot be guaranteed.
Comment: The guidelines should focus only on the number, duration,
and scope of audits.
Response: The guidelines stipulate that (1) audits are to be
performed only when there is a reasonable cause to believe that there
has been a violation of section 340B(a)(5) (A) or (B); (2) audits are
to be conducted with the least possible disruption to the operations of
the covered entity with only one audit being permitted during the same
time period; and (3) the scope of the audits must be sufficient to
evaluate the covered entity's compliance with the aforementioned
statutory prohibitions.
Comment: The guidelines are unfairly burdensome and shift the
Secretary's responsibility for enforcing the statute to the
manufacturers.
Response: In accordance with the intent of the statute, the audits
should be performed only when there is reasonable cause for their
performance. Further, the statute also states that the audits should be
conducted at the expense of the Government or the manufacturer. We
believe that the party which demonstrates a reasonable cause for the
audit should commission the audit. However, in cases where more than
one manufacturer has demonstrated reasonable cause for an audit, then
the Government may perform the audit in order to protect the
confidentiality of the manufacturers' proprietary information.
Comment: Some of the proposed audit steps are duplicative;
therefore, the proposed audit steps at section II b, c, e, f, g should
be excised or moved to streamline the proposed guidelines.
Response: The guidelines have been reorganized to provide a section
on ``Procedures To Be Followed'' and a section on ``Suggested Audit
Steps.'' This clearly distinguishes the procedures to be followed by
the manufacturer from the suggested procedures to be performed by the
manufacturer's auditors.
Comment: In cases where the Government elects to perform its own
audit, the resulting audit report should be made available to the
manufacturers.
Response: Audit reports prepared by Government auditors are public
documents. A copy of the audit report will be made available to the
manufacturers upon request. Requests

[[Page 65408]]

should be addressed to: Director, HRSA, Office of Drug Pricing, Bureau
of Primary Health Care, 4350 East West Highway, West Towers, 10th
Floor, Bethesda, MD 20814.
Comment: Because audits will be permitted only when the
manufacturer can demonstrate that there is ``reasonable cause'' to
believe that a violation of section 340B(a)(5) has occurred,
``reasonable cause'' should be defined.
Response: The guidelines have been revised to provide a definition
of ``reasonable cause.''
Comment: A covered entity should be given an opportunity to respond
to a manufacturer's request for an audit before the Department
determines whether an audit may be performed and should be permitted to
review and comment on the manufacturer's proposed audit workplan before
it is approved by the Department.
Response: The guidelines provide for a 30 day period before the
manufacturer submits to the Department an audit work plan in which the
manufacturer and the covered entity must attempt in good faith to
resolve the matter. When the manufacturer submits its audit work plan,
it has already discussed the matter with the covered entity; therefore,
we do not believe there is a need for the covered entity to comment on
a manufacturer's submission of an audit workplan. The Department, at
its discretion, may contact the covered entity as part of the review
process of the proposed manufacturer's audit. Likewise, we do not
believe that there is a need for the covered entity to review and
comment on the manufacturer's proposed workplan once it has been
reviewed by the Department.
Comment: The guidelines should be clarified to indicate that the
manufacturer's independent public accountant should perform the audit.
This is necessary to comply with the ``independence standard''
contained in the Government Auditing Standards.
Response: The guidelines have been modified to indicate that a
manufacturer's auditor shall be an independent public accountant
employed by a manufacturer to perform the audit.
Comment: Refer to reviews as ``attestation engagements'' rather
than ``audits,'' and perform them as agreed-upon procedures in
accordance with the Statement on Standards for Attestation Engagements
No. 3, Compliance Attestation. The procedures to be performed could be
jointly developed and agreed upon by the Department, the covered
entity, manufacturer, and the independent accountant.
Response: Although some of the work to be performed by the
independent public accountant or government auditor may involve some
attestation procedures, the statute calls for an audit of the covered
entity's records. Therefore, the term audit has been used in the
preparation of the guidelines. Further, we agree that the opinions and
views of all interested parties should be considered in the preparation
of the guidelines. This has been achieved through the publication of
the proposed guidelines in the Federal Register, requesting public
comment.
Comment: The notice should include the guidelines to be followed by
Federal auditors.
Response: Federal auditors will perform audits in accordance with
the Government Auditing Standards. The Notice has been clarified.
Comment: Covered entities should have the right to submit newly
compiled or discovered information following the manufacturer's audit
for consideration by the review committee.
Response: The guidelines provide that when a covered entity
disagrees with the audit report's findings and recommendations, the
covered entity should provide its rationale for the disagreement to the
manufacturer. The manufacturer and the covered entity must make a good
faith effort to resolve the issue before requesting review using the
dispute resolution process. Newly compiled or discovered information
can be provided to the manufacturer during this period of good faith
effort. If the parties are still unable to reach agreement, the newly
compiled or discovered information can be submitted to the Department
along with the other information that was developed as part of the
audit. The Department will consider the auditor's findings and
recommendations as well as the covered entity's rationale for
disagreeing during the review process.
Comment: All covered entity records and information identified in
the audit process should be held in strict confidence by the
manufacturer.
Response: Confidential patient information and proprietary
information will be protected.
Comment: Manufacturers should not be required to continue to sell
to a covered entity at the mandated price once an audit has been
initiated, particularly since reasonable cause has already been
demonstrated.
Response: Manufacturers must continue to sell at the statutory
price during the audit process. Once the audit has been completed and
the manufacturer believes that there is sufficient evidence to indicate
prohibited entity activity, then the manufacturer may bring the claim
to the Department through the informal dispute process. Not until the
entity is found guilty of prohibited activity and a decision is made to
remove the entity from the covered entity list, will the manufacturers
no longer be required to extend the discount.
Comment: Each manufacturer, wronged by the same business practices
of the same entity, must wait its turn to audit the entity and pursue
its case through the dispute process in order to recover. This could
result in a failure to enforce the statute.
Response: The guidelines have been revised to permit the
Department, if deemed necessary, to provide for corrective action as to
other manufacturers wronged by prohibited entity activity.
Comment: Include the hospital prohibition against participation in
any group purchasing arrangement as a permissible audit subject.
Response: The statute clearly limits the audit subjects to
potential entity diversion (section 340B(a)(5)(B)) and entity activity
that could generate a rebate on a drug that was discounted under the
Act (section 340B(a)(5)(A)).
Comment: Provide for access to different records depending upon the
record keeping system of the entity.
Response: The notice has been revised to permit access to primary
records which would be included in a reasonable audit trail.
Comment: There is a requirement that an informational copy of the
audit be provided to the Department and the Inspector General. Why
cannot the entire report be provided to these offices?
Response: The guidelines have been revised to require that the
entire report be submitted to the Department and the Office of the
Inspector General.
Comment: The guidelines should not preclude the entity and the
manufacturer from both voluntarily developing mutually beneficial audit
procedures.
Response: The guidelines have been revised to include a statement
that the guidelines do not preclude the entity and the manufacturer
from both voluntarily developing mutually beneficial audit procedures.
Comment: The auditor should be able to confirm with the Department
that the entity has provided its Medicaid provider number.
Response: The guidelines have been revised to permit the auditor to
confirm with the Department that the entity being audited does not
generate a Medicaid rebate while accepting 340B

[[Page 65409]]

discounts (e.g., has provided its Medicaid provider number, does not
bill Medicaid, or utilizes an all-inclusive rate billing system).
Manufacturers are free to challenge a hospital's eligibility as a
covered entity by corresponding with the Department.
Comment: The Department must act independently to assure
compliance.
Response: The Department will investigate all documentation
submitted regarding both entity and manufacturer noncompliance and,
when appropriate, take the necessary steps to remove the entity from
``covered entity'' status or terminate the Pharmaceutical Pricing
Agreement which the manufacturer signed with HHS, thus preventing
further participation in the program.
Comment: Set a specific time limit for a manufacturer to have audit
personnel at the entity facility with the possibility of an extension
for good cause.
Response: Because of the many variables (e.g., size of the covered
entity and scope of the audit), it would be impossible to set specific
time limits. However, if an entity believes that auditors are exceeding
a reasonable time period, it may notify the Department for assistance.
Comment: You fail to require entities to allow audits.
Response: Please refer to the section entitled, ``Supplemental
Information, Manufacturer Audit Guidelines,'' where we begin the
discussion with the statement, ``Covered entities which choose to
participate in the section 340B drug discount program must comply with
the requirements of section 340B(a)(5) of the PHS Act.'' Section
340B(a)(5)(C) provides that a covered entity shall permit the
manufacturer of a covered outpatient drug to audit the records of the
entity that pertain to the entity's compliance with section 340B(a)(5).
Comment: Guidelines regarding scope should be expanded to include
procedures to assure that manufacturers not have access to information
that identifies specific patients or transaction records concerning the
products of other manufacturers.
Response: The guidelines require that audits be performed in
accordance with the Government Auditing Standards (GAS) developed by
the Comptroller General of the United States. These standards require
auditors to prepare the audit reports in a manner that protects
privileged and confidential information. Confidential patient
information and/or proprietary information which auditors may access in
the performance of an audit will not be disclosed to the manufacturer.
Comment: In the new section III(b), change the word ``access'' to
``obtain an understanding of,'' and in section III(e) change the word
``determine'' to ``test.''
Response: We have revised the notice accordingly.

(C) Revised Manufacturer Audit Guidelines

Set forth below are the final manufacturer audit guidelines,
revised based upon an analysis of the comments above.

Manufacturer Audit Guidelines

Covered entities which choose to participate in the section 340B
drug discount program shall comply with the requirements of section
340B(a)(5) of the PHS Act. Section 340B(a)(5)(A) prohibits a covered
entity from accepting a discount for a drug that would also generate a
Medicaid rebate. Further, section 340B(a)(5)(B) prohibits a covered
entity from reselling or otherwise transferring a discounted drug to a
person who is not a patient of the entity. The participating entity
shall permit the manufacturer of a covered outpatient drug to audit its
records that directly pertain to the entity's compliance with section
340B(a)(5) (A) and (B) requirements with respect to drugs of the
manufacturer. Manufacturer audits shall be conducted in accordance with
guidelines developed by the Secretary, as required by section
340B(a)(5)(C). Not only will the records of any organization working
with a covered entity to purchase or dispense covered drugs, or to
prepare Medicaid reimbursement claims for the covered entity be subject
to the same audit requirement, but also any primary record that could
be part of a reasonable audit trail.
This notice does not include the complete audit guidelines to be
used by Government auditors in cases where the Government performs its
own audit. Federal auditors shall perform audits in accordance with the
Government Auditing Standards. The Government auditors' authority to
audit the covered entity's compliance with the requirements of section
340B(a)(5) (A) and (B) shall not be limited by the manufacturer's audit
guidelines.
The following is the ``Compliance Audit Guide'' concerning
manufacturer audit guidelines as developed by the Secretary pursuant to
section 340B(a)(5)(C): (These guidelines do not preclude the entity and
the manufacturer from voluntarily developing mutually beneficial audit
procedures.)

I. General Guidelines

The manufacturer shall submit a work plan for an audit which it
plans to conduct of a covered entity to the Department. (See section
III for suggested audit steps.) The manufacturer's auditor shall be an
independent public accountant employed by the manufacturer to perform
the audit. The auditor has an ethical and legal responsibility to
perform a quality audit in accordance with Government Auditing
Standards, Current Revision, developed by the Comptroller General of
the United States. Patient confidentiality requirements also must be
observed. At the completion of the audit, the auditors must prepare an
audit report in accordance with the reporting standards for performance
audits in Government Auditing Standards, Current Revision. The cost of
a manufacturer audit shall be borne by the manufacturer, as provided by
section 340B(a)(5)(C) of the PHS Act.
(a). Number of Audits
A manufacturer shall conduct an audit only when it has
documentation which indicates that there is reasonable cause.
``Reasonable cause'' means that a reasonable person could believe that
a covered entity may have violated a requirement of section 340B(a)(5)
(A) or (B) of the PHS Act (i.e., accepting a 340B discount on a covered
outpatient drug at a time when the covered entity has not submitted its
Medicaid billing status to the Department or transferring or otherwise
reselling section 340B discounted covered drugs to ineligible
recipients).
Consistent with Government auditing standards, the organization
performing the audit shall coordinate with other auditors, when
appropriate, to avoid duplicating work already completed or that may be
planned. Only one audit of a covered entity will be permitted at any
one time. When specific allegations involving the drugs of more than
one manufacturer have been made concerning an entity's compliance with
section 340B(a)(5) (A) and (B), the Department will determine whether
an audit should be performed by the (1) Government or (2) the
manufacturer.
(b). Scope of Audits
The manufacturer shall submit an audit workplan describing the
audit to the Department for review. The Department will review the
workplan for reasonable purpose and scope. Only those records of the
covered entity (or the records of any organization that works with the
covered entity to

[[Page 65410]]

purchase, dispense, or obtain Title XIX reimbursement for the covered
drug) that directly pertain to the potential 340B violation(s) may be
accessed, including those systems and processes (e.g., purchasing,
distribution, dispensing, and billing) that would assist in determining
whether a 340B violation has occurred.
(c). Duration of Audits
Normally, audits shall be limited to an audit period of one year
and shall be performed in the minimum time necessary with the minimum
intrusion on the covered entity's operations.

II. Procedures To Be Followed

(a). The manufacturer shall notify the covered entity in writing
when it believes the covered entity has violated provisions of section
340B. The manufacturer and the covered entity shall have at least 30
days from the date of notification to attempt in good faith to resolve
the matter.
(b). The manufacturer has the option to proceed to the dispute
resolution process described later in the notice without an audit, if
it believes it has sufficient evidence of a violation absent an audit.
If the matter is not resolved and the manufacturer desires to perform
an audit, the manufacturer must file an audit work plan with the
Department. (See section For Further Information for address.) The
manufacturer must set forth a clear description of why it has
reasonable cause to believe that a violation of section 340B(a)(5) (A)
or (B) has occurred, along with sufficient facts and evidence in
support of the belief. In addition, the manufacturer shall provide
copies of any documents supporting its claims.
(c). The Department will review the documentation submitted to
determine if reasonable cause exists. If the Department finds that
there is reasonable cause to believe that a violation of section
340B(a)(5) (A) or (B) has occurred, the Department will not intervene.
In cases where the Department determines that the audit shall be
performed by the Government, the Department will so advise the
manufacturer and the covered entity within 15 days of receipt of the
audit work plan.
(d). The filing of a audit work plan does not affect the statutory
obligations of the parties as defined in section 340B of the PHS Act.
During the audit process, the manufacturer must continue to sell
covered outpatient drugs at the section 340B ceiling price to the
covered entity being audited, and the covered entity must continue to
comply with the requirements of section 340B(a)(5).
(e). Upon receipt of the manufacturer's audit work plan, the
Department, in consultation with an appropriate audit component, will
review the manufacturer's proposed workplan. As requested by GAS, the
audit workplan shall describe in detail the following:

(1). audit objectives (what the audit is to accomplish), scope
(type of data to be reviewed, systems and procedures to be examined,
officials of the covered entity to be interviewed, and expected time
frame for the audit), and methodology (processes used to gather and
analyze data and to provide evidence to reach conclusions and
recommendations);
(2). skill and knowledge of the audit organization's personnel
to staff the assignment, their supervision, and the intended use of
consultants, experts, and specialists;
(3). tests and procedures to be used to assess the covered
entity's system of internal controls;
(4). procedures to be used to determine the amounts to be
questioned should violations of section 340B(a)(5) (A) and (B) be
discovered; and
(5). procedures to be used to protect patient confidentiality
and proprietary information.

(f). Within 15 days of receipt of the proposed audit workplan, the
Department shall review the work plan. If after this review the
Department has concerns about the work plan, it will work with the
manufacturer to incorporate mutually agreed-upon revisions to the plan.
The covered entity will have at least 15 days to prepare for the audit.
(g). At the completion of the audit, the auditors must prepare an
audit report in accordance with reporting standards for performance
audits of the GAS. The manufacturer shall submit the audit report to
the covered entity. The covered entity shall provide its response to
the manufacturer on the audit report's findings and recommendations
within 30 days from the date of receipt of the audit report. When the
covered entity agrees with the audit report's findings and
recommendations either in full or in part, the covered entity shall
include in its response to the manufacturer a description of the
actions planned or taken to address the audit findings and
recommendations. When the covered entity does not agree with the audit
report's findings and recommendations, the covered entity shall provide
its rationale for the disagreement to the manufacturer.
(h). The manufacturer shall also submit copies of the audit report
to the Department (see section For Further Information Contact for the
address) and the Office of Inspector General, Office of Audit Services,
PHS Audits Division at Room 1-30, Park Building, 12420 Parklawn Drive,
Rockville, MD 20857.
(i). If a dispute concerning the audit findings and recommendations
arises, the parties may file a request for dispute resolution with the
Department. All dispute resolution procedures developed by the
Department shall be followed.

III. Suggested Audit Steps

Suggested audit steps include the following:
(a). Review the covered entity's policies and procedures regarding
the procurement, inventory, distribution, dispensing, and billing for
covered outpatient drugs.
(b). Obtain an understanding of internal controls applicable to the
policies and procedures identified above (step a) when necessary to
satisfy the audit objectives.
(c). Review the covered entity's policies and procedures to prevent
the resale or transfer of drugs to a person or persons who are not
patients of the covered entity.
(d). Test compliance with the policies and procedures identified
above (step c) when necessary to satisfy the audit objectives.
(e). Review the covered entity's records of drug procurement and
distribution and test whether the covered entity obtained a discount
only for those programs authorized to receive discounts by section 340B
of the PHS Act.
(f). If a covered entity does not use an all inclusive billing
system (per encounter or visit), but instead bills outpatient drugs
using a cost-based billing system, determine whether the covered entity
has provided its pharmacy Medicaid provider number to the Department
and test whether the covered entity billed Medicaid at the actual
acquisition cost. The auditor is permitted to contact the ODP (at the
number in the For Further Information Contact section) to determine if
the entity--(1) has provided its pharmacy Medicaid provider number, (2)
does not bill Medicaid for covered outpatient drugs, (3) uses an all-
inclusive rate billing system, or (4) is an entity clinic eligible for
the discount pricing but located within a larger medical facility not
eligible for the drug discounts and has provided the ODP a separate
pharmacy Medicaid provider number or an agreement with the State
Medicaid Agency regarding an operating mechanism to prevent duplicate
discounting.

[[Page 65411]]

(g). Where the manufacturer's auditors conclude that there has been
a violation of the requirements of section 340B(a)(5) (A) or (B),
identify (1) the procedures or lack of adherence to existing procedures
which caused the violation, (2) the dollar amounts involved, and (3)
the time period in which the violation occurred.
(h). Following completion of the audit field work, provide an oral
briefing of the audit findings to the covered entity to ensure a full
understanding of the facts.

(D) Comment and Responses--Informal Dispute Resolution

Comment: The guidelines should include a mechanism to verify or
``dispute'' the accuracy of the Department's list of covered entities.
Response: The notice has been revised to include, as a type of
dispute covered by the informal dispute mechanism, the accuracy of the
master list of covered entities.
Comment: A dispute review committee consisting of only ODP and
other PHS employees could result in conflict-of-interest concerns. The
dispute review committee should be an independent body (e.g., an
administrative law judge), and there should be a mechanism to provide
for non-PHS members in cases where the dispute involved ODP.
Response: The Department is overseeing the implementation of
section 340B of the PHS Act, and as such, is offering a voluntary
dispute resolution mechanism to expedite this process. No manufacturer
or covered entity is required to avail itself of this process before
resorting to other available measures. Further, parties which do
participate in the dispute resolution process will have an appeal
opportunity with a HRSA review official or committee.
Comment: The penalties for covered entities that violate section
340B(a)(5) requirements are not adequate. For entities to merely repay
discounts (plus interest) which they obtained and to which they were
not entitled is not an effective deterrent. It was suggested that
entities that have violated statutory requirements pay the cost of the
audits, pay various amounts up to 150 percent of the improperly
obtained discount (plus interest) and/or be banned from continued
participation in the program. Further, it was suggested that an
entity's failure to respond in a timely basis to a manufacturer's audit
findings should result in a ``summary judgment'' against the entity.
Response: Section 340B(a) is clear concerning entity penalties for
reselling or transferring discounted drugs, for generating duplicate
discounts and rebates and who must bear the cost of auditing. Section
340B(a)(4) defines ``covered entity'' as one which meets the
requirements of paragraph (5). This paragraph prohibits drug diversion
and double price reductions. If an entity is found guilty of either of
these activities, the entities may be found by the Department no longer
to be covered under section 340B. Section 340B(a)(5)(D) outlines the
monetary penalty for violations of these prohibitions and provides that
entities must pay to the manufacturer the amount of discount received.
Although section 340B provides for no other penalty, copies of the
audit results will be submitted to the Office of Inspector General for
review and possible further investigation. Section 340B(a)(5)(C)
clearly provides that manufacturer audits are performed at the
manufacturer expense. We agree that some type of penalty is necessary
for an entity which does not respond in a timely fashion to a
manufacturer audit results. We have revised the audit guidelines to
allow for the manufacturer to submit to the Department a request for
dispute resolution for entity non-response within given timeframes.
Comment: Please clarify the meaning of ``final determination'' as
used in Part III of the Notice entitled, ``Penalties.''
Response: A ``final determination'' under the Dispute Resolution
procedure is reached when review by the Administrator of the Health
Resources and Services Administration (HRSA) is completed and the HRSA
Administrator or appointee has made a decision on the issue(s)
involved.
Comment: It is not clear when an administrative decision can be
appealed by a covered entity to the Federal courts.
Response: Covered entities or manufacturers are encouraged to
participate in this voluntary process for the resolution of disputes
regarding section 340B. It is expected that once a covered entity or a
manufacturer submits a request for informal dispute resolution, the
process will be completed before pursuing other remedies which may be
available under applicable principles of law. Entities may wish to seek
legal advice concerning the exhaustion of administrative remedies
regarding a voluntary administrative process. Section III of the
Guidelines has been clarified.
Comment: Additional appeal procedures may be problematic for
covered entities or manufacturers who must exhaust their administrative
remedies before seeking remedies in a court of law.
Response: The dispute resolution process is a voluntary process.
Manufacturers or entities are only encouraged to participate in the
process before seeking other remedies.
Comment: The term ``PHS'' is not defined. It is unclear whether
this means the ODP or some other office within the PHS.
Response: The term ``PHS'' means the Public Health Service in its
entirety. The guidelines have been revised to reflect that the
Department will be implementing these guidelines through the ODP.
Comment: A party who is unable to resolve a dispute can submit a
written request for a review of the dispute. Time deadlines should be
included to state when that written request can be submitted.
Response: The guidelines have been changed to include such
deadlines.
Comment: Time deadlines and penalties for non-response must be
included for various steps in the dispute process. First, upon receipt
of a request for a review, the chairperson of the review committee
should send a letter to the party alleged to have committed a
violation. Time deadlines should be included on when the chairperson
must send this letter. Second, the activities of the review committee
should also have deadlines. Third, a deadline for the submission of
additional information should be included.
Response: The guidelines have been changed to include such
deadlines.
Comment: The penalties do not preclude the imposition by the
Government of other penalties or remedies under other statutes such as
the Federal False Claims Act.
Response: The guidelines have been revised to clarify this issue.

(E) Revised Informal Dispute Resolution Process

Set forth below are the final informal dispute resolution
guidelines, revised based upon the analysis of the comments above.

Dispute Resolution Process

The Department, acting through the Office of Drug Pricing (ODP), is
proposing a voluntary process for the resolution of certain disputes
between manufacturers and covered entities concerning compliance with
the provisions of section 340B of the PHS Act. Covered entities or
manufacturers are not required to enter this informal process for
resolution of disputes regarding section 340B. However, the Department
expects parties to utilize the

[[Page 65412]]

process before resorting to other remedies which may be available under
applicable principles of law.

I. Types of Disputes Covered

Disputes resolved by these procedures include:
(a) A manufacturer believes a covered entity is in violation of the
prohibition against resale or transfer of a covered outpatient drug
(section 340B(a)(5)(B) of the PHS Act), or the prohibition against
duplicate discounts or rebates (section 340B(a)(5)(A) of the PHS Act).
(b) A covered entity believes that a manufacturer is charging a
price for a covered outpatient drug that exceeds the ceiling price as
determined by section 340B(a)(1) of the PHS Act.
(c) A manufacturer is conditioning the sale of covered outpatient
drugs to a covered entity on the entity's provision of assurances or
other compliance with the manufacturer's requirements that are based
upon section 340B provisions.
(d) A covered entity believes that a manufacturer has refused to
sell a covered outpatient drug at or below the ceiling price, as
determined by section 340B(a)(1) of the PHS Act.
(e) A manufacturer believes that a covered entity is dispensing a
covered outpatient drug in an unauthorized service (e.g., inpatient
services or ineligible clinics within the same health system).
(f) A manufacturer believes that a covered entity has not complied
with the audit requirements under section 340B(a)(5)(c) of the PHS Act
or the audit guidelines as set forth in this notice.
(g) A covered entity believes that the auditors of the manufacturer
have not abided by the approved workplan or audit guidelines.
(h) A covered entity is unable to obtain covered outpatient drugs
through a wholesaler because the manufacturer will only sell section
340B discounted drugs directly from the manufacturer to the entity.
(i) A manufacturer or covered entity wants to verify the accuracy
of the master list of covered entities.

II. Dispute Resolution Process

Prior to the filing of a request for dispute review with the
Department, the parties must attempt, in good faith, to resolve the
dispute. All parties involved in the dispute must maintain written
documentation as evidence of the good faith attempt to resolve the
dispute. Such evidence includes documentation of meetings, letters, or
telephone calls between the disputing parties that concern the dispute.
If the dispute has not been resolved after a good faith attempt, a
party may submit a written request for a review of the dispute to the
Director of the ODP within 30 days. [See address in For Further
Information Contact section.]
The party requesting the review may not rely only upon allegations
but is required to set forth specific facts showing that there is a
genuine and substantial issue of material fact in dispute that requires
a review.
The request for review shall include a clear description of the
dispute, shall identify all the issues in the dispute, and shall
contain a full statement of the party's position with respect to such
issue(s) and the pertinent facts and reasons in support of the party's
position. In addition to the required statement, the party shall
provide copies of any documents supporting its claim and evidence that
a good faith effort was made to resolve the dispute. These materials
must be tabbed and organized chronologically and accompanied by an
indexed list identifying each document.
The filing of the dispute does not affect any statutory obligations
of the parties, as defined in section 340B of the PHS Act. During the
review process, for example, a manufacturer must continue to sell
covered outpatient drugs at or below the section 340B ceiling price to
all covered entities, including the covered entity involved in the
dispute. Only when the entity is found guilty of prohibited activity
and a decision is made to remove the entity from the list of covered
entities, is the manufacturer no longer required to extend the
discount.
The Director, Bureau of Primary Health Care, shall appoint a
committee to review the documentation submitted by the disputing
parties and to make a proposed determination. A minimum of three
individuals shall be appointed (one of whom shall be designated as a
chairperson) either on an ad hoc, case-by-case basis, or as regular
members of the review committee. The chairperson shall be from the ODP
and the committee members shall be from other sections of PHS (e.g.
chief pharmacist, auditor).
Upon receipt of a request for a review, the chairperson of the
review committee, within 30 days, will send a letter to the party
alleged to have committed a violation. The letter will include (1) the
name of the party making the allegation(s), (2) the allegation(s), (3)
documentation supporting the party's position, and (4) a request for a
response to or rebuttal of the allegations within 37 calendar days of
the receipt of the letter (7 days from the date of the postmark of the
letter being allowed for mailing and processing through the
organization).
Upon receipt of the response or rebuttal, the review committee will
review all documentation. The request and rebuttal information will be
reviewed for (1) evidence that a good faith effort was made to resolve
the dispute, (2) completeness, (3) adequacy of the documentation
supporting the issues, and (4) the reasonableness of the allegations.
If the documentation meets these requirements, the review committee
will consider the matter.
The reviewing committee may, at its discretion, invite parties to
discuss the pertinent issues with the committee and to submit such
additional information as the committee deems appropriate.
The reviewing committee will propose to dismiss the dispute, if it
conclusively appears from the data, information, and factual analyses
contained in the request for a review and rebuttal documents that there
is no genuine and substantial issue of fact in dispute. Within 30 days,
a written decision of dismissal will be sent to each party and will
contain the committee's findings and conclusions in detail, and, if the
committee decided to dismiss, reasons why the request for a review did
not raise a genuine and substantial issue of fact.
With all other proposed findings, within 30 days, the review
committee will prepare a written document containing the findings and
detailed reasons supporting the proposed decision. The document is to
be signed by the chairperson and each of the other committee members.
The committee's written decision will be sent with a transmittal letter
to both parties. If the committee finds the covered entity guilty of
prohibited activity and a decision is made to remove the entity from
the covered entity list, then the manufacturers will no longer be
required to extend the discount. If the covered entity or the
manufacturer does not agree with the committee's determination, the
covered entity or the manufacturer may appeal within 30 days after
receiving such a determination to the Administrator of the Health
Resources and Services Administration, who will appoint a review
official or committee. The review official or committee will respond to
appeal requests within 30 days from the receipt of the request.

III. Penalties

If the final determination is that a manufacturer has violated the
provisions of section 340B of the PHS Act or the PHS Pharmaceutical
Pricing Agreement, the manufacturer's agreement with HHS could be
terminated or other actions taken, as

[[Page 65413]]

deemed appropriate. If the final determination is that an entity has
violated section 340B prohibitions against the resale or transfer of
covered outpatient drugs or the prohibition against duplicate discounts
and rebates (or billing Medicaid more than the actual acquisition cost
of the drug), the entity shall be liable to the manufacturer of the
covered outpatient drug that is the subject of the violation in an
amount equal to the reduction in the price of the drug for the period
of the violation, as provided by section 340B(a)(5)(D) of the PHS Act.
After the dispute is resolved, any disputed amounts must be paid or
credited to an account balance no later than 30 days following a final
determination. The entity may also be excluded from the drug discount
program, if the conduct warrants such a sanction. Such penalties do not
preclude the imposition by the Government of other penalties or
remedies under other statutes such as the Federal False Claims Act. A
copy of the findings may be sent to the Office of the Inspector General
for further action. If it is documented that several manufacturers have
been wronged by the same prohibited entity behavior, corrective action
will be afforded such manufacturers. (The reporting and recordkeeping
requirements of this document are subject to the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501-3520, and have OMB clearance through 9/30/
97 (OMB Control No. 0915-0176). The Paperwork Reduction Act of 1995
added disclosure requirements to the list of items needing OMB
approval. The disclosure requirements in the audit guidelines include:
section II(a)--the manufacturer shall notify the covered entity in
writing when it believes the covered entity has violated provisions of
section 340B; section II(g)--the manufacturer shall submit the audit
report to the covered entity, and the covered entity shall provide its
response to the manufacturer on the audit report's findings * * *; and
section III(h) the manufacturer shall provide an oral briefing of the
audit findings to the covered entity. The disclosure requirements in
these sections will not be in force until OMB approval has been
obtained.

Dated: December 6, 1996.
Ciro V. Sumaya,
Administrator, Health Resources and Services Administration.
[FR Doc. 96-31541 Filed 12-11-96; 8:45 am]
BILLING CODE 4160-15-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-31541. Public record. Not legal advice.