Underfilling and Overfilling Prescriptions Frauds

Underfilling and Overfilling Prescriptions frauds are two types of illegal schemes perpetrated by pharmacies and pharmaceutical companies to defraud government and taxpayers. Unethical corporations and businesses often commit themselves to illicit behaviors in order to unlawfully increase their revenues at the expense of consumers. Although it is not always possible to file an individual lawsuit against them, citizens shall inform the competent authorities whenever they witness any fraudulent scheme.

Underfilling prescriptions is a type of fraud in which pharmacies provide their customers a smaller or larger quantity of a drug than what was ordered for them by their physician. It is a practice that can provide many opportunities for illicit financial gain, defrauding government programs of millions of dollars putting while the health of patients at considerable risk.

Overfilling Prescriptions is a similar type of scam where pharmaceutical companies overcharge patients and insurance companies by packaging more medicines than those needed in a single treatment. When conducted on a large scale, this type of deceitful scheme can defraud large sums of money from the government, can waste billions in medical resources, and puts patients at risk of harmful side-effects or even overdose

When conducted against government programs like Medicare, Medicaid, and Tricare, both overfilling and underfilling prescriptions constitute a violation of the False Claims Act (FCA).

Underfilling Prescriptions Fraud

The organizations best positioned to implement and benefit from the underfilling of prescriptions are local pharmacies and the “pharmacy benefit managers” (PBM) that act as third-party administrators for private and public health insurance programs. Although these groups are responsible for medication distribution for patients, it is physicians alone who have the authority to determine the content and quantity of a prescription. While filling errors can naturally occur, these errors become criminal when done as part of an intentional, coordinated campaign to defraud patients and health insurance providers.

There are several tactics used to illegally profit from underfilling prescriptions. Among the most common is to purchase a smaller amount of medicines than was prescribed by doctors, and then submit a reimbursement request to Medicaid for the full quantity. This will prompt patients to make new orders to cover their missing quantities, multiplying sales for pharmacies and PBMs.

There have been cases of local pharmacies stockpiling restricted drugs and then illegally selling them at inflated rates to unauthorized individuals, particularly in the case of opioids. Suppliers have also been known to fill prescriptions for name-brand drugs with their less expensive generic counterparts, while invoice Medicaid for the originals.

The Costs and Dangers of Underfilling Prescriptions

The most immediate danger of underfilled prescriptions is the health risk that it places upon patients. Those who do not receive the proper dosages determined by their doctors face the danger of seeing their ailments go untreated for a time. In some cases, this can be just a nuisance that requires an additional refill, but with conditions like heart disease, mental illness or cancer, this disruption can be extremely dangerous.

Like all Medicaid fraud, underfilling prescriptions also put a financial strain on government health care services.  Over a twenty-year period stretching from 1995 to 2014, an estimated $200 million in defrauded Medicaid funds pertaining to underfilling were identified and recovered by the DOJ.

Identifying Underfilling Prescription Fraud

While patients are the ones made most immediately aware of the effects of prescription underfilling, they rarely have the information or access to determine whether it is a mistake or part of a widespread campaign. Pharmacists, company executives, and store managers are generally most likely to find themselves in a position to detect such coordinated behavior. They have traditionally served as qui tam whistleblowers in any civil suits pertaining to such practices.

Overfilling Prescriptions Fraud

Overfilling by pharmaceutical companies is not always illegal or harmful. It is an accepted part of the packaging process for small quantities of syringes and other injectables, compensating for the “waste space” that is added during product manufacture. This extra quantity is ultimately intended as a safety measure to ensure that the required amount of medicine is given to the patient. Drug companies do not normally bill the healthcare providers for this amount, and healthcare providers do not seek reimbursement for it from insurance programs.

However, overfilling has many applications as a tool of illegal schemes. For example, Merck’s chemotherapy agent Keytruda, initially saw distribution in a powdered form that allowed the patient to measure out quantities according to their needs. And yet, the company soon discontinued this packaging and re-released the drug solely in 100 mg liquid vials. As the average patient needs around 150 mg for treatment, this inevitably requires the purchase of a second 100 mg package, leaving 50mg paid for and unused each time. This double-purchasing of Keytruda is projected to earn Merck extra $1.2 billion in sales over a five-year period. One can contrast this with Teva Pharmaceutical’s leukemia drug Treanda, whose multiple distribution sizes result in less than 1% overall waste.

Overfilling prescriptions can also serve as a kickback strategy that pharmaceutical companies use for healthcare providers. In exchange for selecting a company’s product over a competitor’s, sales representatives will sell them drugs at rates discounting the “waste space,” and then encourage them to charge Medicare/Medicaid for the full quantity. This increases the physician’s profit margin. overfilling prescriptions raises significant health risks. The United States Pharmacoepia caps the “waste space” for liquid vial drugs at a maximum of 10%. It has been determined that any amount in excess of this cap significantly increases the patient’s risk of accidental overdose.

The Cost and Dangers of Overfilling Prescriptions

Liquid drug vials used in cancer treatment are the most common target of overfilling prescription fraud. A 2016 study from Memorial Sloan Kettering’s Center for Health Policy and Outcome estimated that cancer drugs generate $3 billion of waste every year, with the 20 most popular ones accounting for $1.8 billion of this total. This cost is passed on to patients and publicly-funded programs like Medicare.

Beyond this financial cost, overfilling prescriptions raises significant health risks. The United States Pharmacopeia caps the “waste space” for liquid vial drugs at a maximum of 10%. It has been determined that any amount in excess of this cap significantly increases the patient’s risk of accidental overdose.

How to Identify Overfilling of Prescriptions

Physicians, healthcare institutions, and patients can all have direct experience with overfilling prescription fraud. However, providing evidence of an illegal, systematic effort by a company often requires an insider’s perspective. Pharmaceutical executives, marketing directors, sales representatives, accountants, and laboratory manufacturers can all find themselves in the position to serve as effective qui tam whistleblowers for a civil lawsuit.