Rite Aid Settles Opioid Dispensing Case

By Pat Anson

Embattled pharmacy chain Rite Aid has agreed to a settlement with the federal government over the illegal dispensing of opioid pain medication, removing one of the last legal hurdles in the company’s bankruptcy case. Details of the settlement, which includes an explicit offer to cooperate with DEA investigations, were made public this week.

Rite Aid agreed last month to a bankruptcy restructuring plan that eliminates $2 billion in debt, while giving the company access to another $2.5 billion in loans to finance a turnaround plan. The pharmacy chain has already closed over 520 stores, about a quarter of the 2,100 pharmacies it operated prior to filing for Chapter 11 bankruptcy.

Rite Aid allegedly violated the Controlled Substances and False Claims Acts by dispensing hundreds of thousands of prescriptions for opioids and other controlled substances that lacked a “legitimate medical purpose.” The government said the prescriptions were filled by Rite Aid pharmacists from 2014 to 2019, despite “red flags” that they were suspicious or illegal.

“Pharmacies and pharmacists have an affirmative legal duty to ensure that the prescriptions they fill are legitimate,” Rebecca Lutzko, U.S. Attorney for the Northern District of Ohio, said in a statement. “When they disregard this responsibility and instead ignore red flags indicating that prescriptions for addictive painkillers are invalid, they violate the public’s trust and harm the community they are supposed to serve — all to make a buck.”

The Justice Department may have squeezed all it can get out of Rite Aid. Under the settlement, the company agreed to pay the government $7.5 million, along with an “allowed, unsubordinated, general unsecured claim” of nearly $402 million in the bankruptcy case.

An unsecured claim means the government is not entitled to any liens on liquidated Rite Aid property and has to stand in line behind other secured creditors. The $7.5 million payment may be the only one the government receives.

Rite Aid and other pharmacy chains have faced “extreme pressure” from regulators and law enforcement to rein in their opioid prescribing. According to congressional investigators, Rite Aid, CVS and Kroger allow their pharmacy staff to routinely hand over prescription records to law enforcement without a warrant. In most cases, patients are never informed that their medical records were provided to law enforcement or why they were being sought.   

That cooperative relationship with law enforcement is being codified under Rite Aid’s settlement with the government. The company and the DEA have signed a memorandum of agreement “to increase communication between the company, its retailers and DEA.” The agreement requires Rite Aid to keep records relevant to DEA investigations for a minimum of five years and to give employees additional training to help them identify suspicious prescriptions.

Law enforcement agencies are not covered by the Health Insurance Portability and Accountability Act (HIPAA), which protects patient privacy.

Rite Aid also agreed to a corporate integrity agreement, which requires the company to submit data on prescriptions for controlled substances to an Independent Review Organization to determine whether the drugs are properly prescribed, dispensed and billed.

‘They Give Me the Runaround’

It’s already quite common for a pharmacist to refuse to fill an opioid prescription, regardless of a patient’s condition or need.

In 2019, a California woman with late-stage breast cancer posted a tearful video online, after a Rite Aid pharmacist said he would not refill her prescription for Norco, an opioid medication she took for cancer pain. Doyle said the pharmacist told her he was worried about being fined or losing his job if he filled her prescription, even though cancer pain is exempt from opioid prescribing guidelines. 

“I have to take 20 pills a day just to stay alive,” Doyle said. “Every time I take my pain pill prescription there, they give me the runaround.”

Rite Aid eventually apologized to Doyle and offered to fill her prescriptions, but she refused to go back to the Rite Aid pharmacy where she shopped for 20 years.  She died of cancer in 2020, leaving behind a 9-year-old son.

April Doyle’s case is not unique. A recent PNN survey of nearly 3,000 pain patients found that over 90% with an opioid prescription experienced delays or problems getting their medication. Nearly 20% couldn’t to get their prescription filled, in part because opioids such as hydrocodone and oxycodone are in short supply.

Although most U.S. drug overdoses involve illicit fentanyl and other street drugs, federal prosecutors and law enforcement continue to blame doctors, pharmacies, drug wholesalers and opioid manufacturers for the nation’s overdose crisis.  

“America continues to live through the worst opioid epidemic we have ever seen. Rite Aid contributed to this crisis by ignoring obvious red flags and dispensing hundreds of thousands of unnecessary opioids,” said DEA Administrator Anne Milgram. “DEA will continue to do everything in our power to protect the health and safety of Americans and to end the opioid epidemic.”

Pharmacies Under ‘Extreme Pressure’ to Give Patient Records to Law Enforcement

By Pat Anson, PNN Editor

Three of the nation’s largest pharmacy chains -- CVS, Kroger and Rite Aid – allow staff in their pharmacy stores to routinely hand over prescription records to law enforcement without a warrant, according to congressional investigators. In most cases, pharmacy customers are never informed that their medical records have been provided to law enforcement or why they were being sought.   

The policies were revealed in a joint letter sent to Health and Human Services Secretary Xavier Becerra by Sen. Ron Wyden (D-OR) and Reps. Pramila Jayapal (D-WA) and Sara Jacobs (D-CA), who have been looking into the privacy practices of major pharmacy chains.

“Americans' prescription records are among the most private information the government can obtain about a person. They can reveal extremely personal and sensitive details about a person’s life, including prescriptions for birth control, depression or anxiety medications, or other private medical conditions,” Wyden, Jayapal and Jacobs wrote in their letter, which was first reported on by The Washington Post.

Congressional investigators asked eight major pharmacy chains about their policies for dealing with law enforcement requests for prescription records. Five of them — Amazon Pharmacy, Cigna, Optum Rx, Walmart and Walgreens —- said the requests are automatically reviewed by legal professionals before responding.

“The three remaining pharmacy chains — CVS Health, The Kroger Company, and Rite Aid Corporation — indicated that their pharmacy staff face extreme pressure to immediately respond to law enforcement demands and, as such, the companies instruct their staff to process those requests in the store,” the letter said.

“CVS Health and the Kroger Company both defended this practice, arguing that their pharmacy staff — who are not lawyers or paralegals — are trained to respond to such requests and can contact the legal department if they have questions.”

All eight pharmacy chains said they do not require a warrant to share pharmacy records, unless there is a state law that dictates otherwise. Only three states – Louisiana, Montana and Pennsylvania – have laws that require a warrant signed or reviewed by a judge before medical data is disclosed.

HIPAA Privacy Issues

Law enforcement agencies are not covered by the Health Insurance Portability and Accountability Act (HIPAA), which protects patient privacy. The pharmacy chains are covered by HIPAA, but say they are exempt under HHS regulations that allow healthcare providers to disclose patient records to law enforcement if it is obtained through a subpoena or a simple administrative request. Unlike warrants, subpoenas generally do not require a judge’s approval.

Congress began looking into the HIPAA policies of pharmacies after the U.S. Supreme Court overturned Roe v Wade, leaving it up to individual states to make their own laws about abortion. Some medications that induce abortions are now banned in certain states.

But the Drug Enforcement Administration and other law enforcement agencies were showing a keen interest in obtaining prescription records long before Roe v Wade was overturned. In 2020, the DEA solicited bids from contractors for a prescription drug surveillance program that would identify virtually every patient, prescriber and pharmacy that may be diverting or abusing opioids and other controlled substances.

Under the proposed surveillance program, DEA investigators would have “unlimited access” to prescription data, including the names of prescribers and pharmacists, types of medication, quantity, dose, refills and forms of payment. The names of patients would be encrypted, but if investigators suspect a medication was being abused or diverted, they could get a subpoena to identify them.

No contract was awarded by DEA and it’s unclear if the surveillance program was ever initiated. State-run prescription drug monitoring programs (PDMPs) already track much of the information DEA was seeking, but law enforcement access to the data usually requires an active investigation or warrant.

Regardless of the method used, some pain patients with a history of needing high-dose opioid prescriptions have suspected they are being tracked by the DEA as a way to gather evidence on their doctors.

“I have talked to many patients who described things that made them believe this was occurring,” says Anne Fuqua, a disabled nurse in Alabama who needs high-dose opioids for intractable pain. At least two of Fuqua’s out-of-state physicians have been raided by the DEA and driven from medical practice without criminal charges ever being filed against them.

She’s pleased that Congress is looking into HIPAA issues at the pharmacy level, but feels that law enforcement already has easy access to patient information.  

“I'm glad that the huge potential for intrusion into a person's medical care is finally attracting attention,” Fuqua told PNN. “There are many states like Alabama where state and local law enforcement can access PDMP by simply affirming there is an active investigation in process. As long as some states permit unfettered access to the PDMP by law enforcement, the police and DEA don't really even need to contact the actual pharmacy for records related to controlled substances.”

Of the eight pharmacy chains contacted by congressional investigators, only Amazon said it automatically notifies customers if a law enforcement agency asked for their medical records, unless there is a legal reason not to do so.

Under the HIPAA Act, every American has the right to ask a healthcare provider if their medical information has been disclosed. Few people do, however. CVS said it received only a “single-digit number” of consumer requests last year.  A CVS spokesman told The Washington Post that most law enforcement requests come with a directive that they be kept confidential.

Pharmacies already face enormous scrutiny over their dispensing of opioid pain medication. Under the national opioid settlement, drug wholesalers have to limit the amount of opioids supplied to each pharmacy and are required to collect from pharmacies a list of suspicious orders and red flags that may indicate drugs are being abused or diverted. Pharmacies that don’t comply risk being “terminated” by their suppliers.

Wyden, Jayapal and Jacobs say more privacy protections are needed for pharmacy customers.

“We urge HHS to consider further strengthening its HIPAA regulations to more closely align them with Americans’ reasonable expectations of privacy and Constitutional principles. Pharmacies can and should insist on a warrant, and invite law enforcement agencies that insist on demanding patient medical records with solely a subpoena to go to court to enforce that demand,” they wrote.

Patient Advocate Who Drew Attention to Pharmacy Discrimination Dies

By Pat Anson, PNN Editor

A patient advocate in California who fought breast cancer and helped draw attention to the discrimination often faced by pain patients at pharmacies has died. April Doyle passed away last month after a 12-year battle with metastatic breast cancer. She was only 42-years old.    

In April 2019, Doyle posted a tearful video on Facebook and Twitter after a Rite Aid pharmacist refused to fill her prescription for Norco, an opioid medication she took for cancer pain. At the time, her Stage 4 breast cancer had metastasized into her lungs, spine and hip. 

“I have to take 20 pills a day just to stay alive,” Doyle said in the video, which soon went viral. “Every time I take my pain pill prescription there, they give me the runaround. They don’t have enough in stock or they need me to come back tomorrow because they can’t fill it today. Or something stupid. It’s always something and it’s always some stupid excuse.”

Doyle’s video struck a chord with pain patients around the country, who often have trouble getting their opioid prescriptions filled. The publicity also led to apologies from a Rite Aid vice-president, the store manager and the pharmacist who refused to fill her prescription.

Doyle said the pharmacist told her he was worried about being fined or even losing his job if he filled her prescription, even though cancer pain is exempt from opioid prescribing guidelines. 

“It’s astonishing the reaction it has gotten. I had no idea this was so common. It’s actually kind of sad how common it is,” Doyle told PNN at the time. “It really struck a nerve with what’s apparently a big problem.”

Doyle wrote several articles about breast cancer that were posted online and her own blog. In her final post on AdvancedBreastCancer.net, Doyle shared her feelings and worries about her young son while she was sick at home from chemotherapy.

“He’s such an amazing boy and it isn’t fair that he has to grow up with a sick mother. If I’m even around for much more of his growing up. In my heart, I know this is what I’m really mourning,” she wrote.

“Cancer is slowly taking things away from me. I hate, hate, that I can’t do something myself. The stubbornness in me is resisting yet it comes out a waterfall of tears. Something so mediocre or dumb to someone else, but it’s an example of what my life has become and how I no longer can dictate what I can or cannot do.”

“April was a dedicated advocate in the metastatic breast cancer community. She told her story with authenticity and inspired so many young women and men living with the disease. She had a way of bringing people together and supporting people in all stages of breast cancer,” Doyle’s obituary in the Visalia Times said.

“She never let her disease define her. She never backed down from adversity and always stood forefront. April fought the stigma and stood up for patient rights. She leaves a legacy in the breast cancer community that will inspire people forever.”

Doyle leaves behind her 9-year old son, Colin. Her family asks that donations in her honor be made to METAvivor, a non-profit that supports breast cancer research.

Cancer Patient's Rite Aid Video Goes Viral

By Pat Anson, PNN Editor

April Doyle was frustrated and angry when she left a Rite Aid pharmacy Monday in her hometown of Visalia, California. A pharmacist there had once again refused to fill her prescription for opioid pain medication, so she got into her car and tearfully recorded a video that she uploaded to Twitter.

“I’m frustrated and that’s why I’m crying,” Doyle said, looking into her cell phone camera. “I’ve had a hard time getting my pain pills filled from them.”

Doyle’s story is a familiar one to millions of pain sufferers, who often have trouble getting their opioid prescriptions filled at pharmacies across the country. But her story is a bit different. The 40-year old single mom has Stage 4 terminal breast cancer that has metastasized into her lungs, spine and hip.  Doyle’s oncologist wrote a prescription for Norco — an opioid medication — to relieve some of her pain.  

“And when you have metastatic cancer in your bones, you need it.  Because sometimes the pain is so much you can’t even function. And I just want to function. I want to be able to go to work and I want to be able to sleep. And I want to be able to do things with my child.  I just want it not to hurt all the time,” Doyle said.

Within days, Doyle’s 6-minute video would go viral on Twitter and Facebook, where it’s been viewed over 200,000 times.  She’d also get apologies from a Rite Aid vice-president, the store manager and the pharmacist who refused to fill her prescription.

Doyle was no stranger at that Rite Aid store. It’s right around the corner from her house and she’s been shopping there for 20 years. It’s where she’s been getting her prescriptions filled for chemotherapy, anti-depressants and anti-nausea drugs — all written by her oncologist. But Rite Aid always seemed to have trouble filling that prescription for Norco. 

“I have to take 20 pills a day just to stay alive,” Doyle explains in the video. “Every time I take my pain pill prescription there, they give me the runaround. They don’t have enough in stock or they need me to come back tomorrow because they can’t fill it today. Or something stupid. It’s always something and it’s always some stupid excuse.”

Federal and state prescribing guidelines – and those of insurers – specifically exempt cancer pain from restrictions on opioid medication.  But some cancer patients still get turned away at pharmacies. According to Doyle, the Rite Aid pharmacist told her he was worried about being fined or even losing his job if he filled her opioid prescription.   

Some of that caution is understandable. Rite Aid and other major pharmacy chains were recently added as defendants in opioid lawsuits filed by the firm of Simmons Hanly Conroy. In the current climate of opioid hysteria and litigation, every step of the drug supply chain, from manufacturers to wholesalers to retailers is under scrutiny. Billions of dollars are at stake. Caught in the middle are pharmacists and patients like April Doyle.

“It’s not right. I’m not a criminal. I’m not a drug addict. I don’t even take them as often as my doctor says to take them. It’s not fair,” she said.

Astonished at Reaction

Doyle has been shocked at the response her video has gotten from the pain community. And surprised at how common her story is. Hundred of people left comments on Doyle’s Facebook page after watching her video.

“Stop giving your money to Rite Aid! You deserve dignity and great customer service,” one supporter wrote. “This whole opioid epidemic is making it impossible for those who medically need the meds. We all have our own story to share. This has to stop!”

“It’s hard to be sick and have people who don’t understand what you’re going through judge you,” said another supporter. “I hope you can find a pharmacy that will treat you with dignity and the compassion you deserve.”

“I know this oh too well trying to get my mom’s scripts filled when she was battling cancer running from store to store feeling and looking like a junkie. It was the most horrible part of it all!”  said another.

 “It’s astonishing the reaction it has gotten. I had no idea this was so common. It’s actually kind of sad how common it is,” Doyle told PNN. “It really struck a nerve with what’s apparently a big problem. I’m just dumbfounded by it.”

A Rite Aid spokesman said he could not comment on Doyle’s case.

“At Rite Aid, we are committed to providing high-quality care to all of our customers and patients. Rite Aid is not able to provide additional detail due to patient privacy,” Chris Savarese, Rite Aid Director of Public Relations said in an email.

Although the company has apologized to Doyle, she does not intend to go back to her neighborhood Rite Aid.

“I have decided to find a locally owned mom and pop pharmacy that really wants the business,” she said.

FDA Warns Drug Distributor

By Pat Anson, PNN Editor

The U.S. Food and Drug Administration has sent a warning letter to a wholesale drug distributor rebuking the company for its handling of several tampering cases involving oxycodone and other medications.

The letter to the CEO of the McKesson Corporation involves incidents in 2016 when pharmacies notified the company about the tampering and theft of medications it had supplied them with.    

In one such case, a Rite Aid pharmacy in Michigan found that the seal to a bottle labeled as containing 100 tablets of oxycodone had been broken. Inside the bottle a pharmacist found 15 tablets of Aleve, a non-steroidal anti-inflammatory pain reliever.  Two other Rite Aid pharmacies also reported to the company that oxycodone bottles had been tampered with. McKesson investigated the reports and determined the tampering and thefts likely occurred while the bottles were in its possession.  

Similar tampering incidents involved drugs used to treat bipolar disorder, high blood pressure and HIV.

According to the FDA, McKesson did little to identify and quarantine other products in its distribution system that also may have been tampered with and failed to warn other pharmacies that illegitimate products were in the supply chain.

"This is simply unacceptable. A distributor’s failure to have systems in place to investigate and quarantine suspect and illegitimate products within their control is a violation of the law," said FDA commissioner Scott Gottlieb, MD, in a statement.

"But this is even more concerning given that we’re in the midst of a widespread opioid crisis. Opioids that leave the legitimate supply chain could end up being sold illegally, or a patient who was appropriately prescribed these drugs to treat pain may not get the treatment they need or may unknowingly take a medication that’s not meant for them."

The FDA did not say why it waited so long to send the warning letter or notify the public about the 2016 tampering incidents. McKesson is the first company to receive a warning letter under the Drug Supply Chain Security Act (DSCSA), which was enacted by Congress in 2013.

McKesson is one of the largest wholesale drug distributors in the country. It is being sued by dozens of states, cities and counties for its role in the opioid crisis. In 2017, McKesson was fined $150 million for failing to report suspicious orders for oxycodone, hydrocodone and other controlled substances. In 2008, the company agreed to pay $13.25 million in penalties for similar violations.