Michigan Executive Order Issued to Temporarily Ease Restrictions on Pharmacists and Increase Access to Prescriptions During COVID-19 Pandemic

On March 25, 2020, Michigan Governor, Gretchen Whitmer, issued Executive Order (EO) 2020-25. Among other things, the EO permits pharmacists to dispense emergency refills of prescriptions for up to a 60-day quantity and requires insurers to cover the emergency refills during the ongoing COVID-19 pandemic. By issuing this EO, Governor Whitmer seeks to aid seniors and families that need to maintain a prescription supply during the pandemic.

Emergency Refills

When dispensing emergency refills under EO 2020-25, the pharmacist must:

• Inform the patient that the prescription will be refilled under Section 1 of EO 2020-25;
• Inform the prescriber in writing within a reasonable period of time of dispensing any emergency refills under EO 2020-25; and
• Prior to refilling the prescription, make every reasonable effort to communicate with the prescriber regarding the emergency refill of the prescription. This includes making a record of the effort and documenting the basis for proceeding with dispensing the prescription.

The EO also requires insurers and health maintenance organizations (HMOs) that issue insurance or disability insurance policies that provide coverage for prescription drug benefits to cover the cost of any emergency refills dispensed under EO 2020-25. Further, the insurers and HMOs must permit any in-person or mail-in pharmacy to provide a 90-day supply of a beneficiary’s prescription for a 30-day or 60-day supply of covered prescription maintenance medications. Note that insurers and HMOs are permitted to maintain any policies governing out-of-network benefits and/or cost-sharing under the EO.

Also, note that the prescriber may not incur any criminal or civil liability or licensing disciplinary action due to the pharmacist dispensing an emergency refill of a prescription under EO 2020-25.

Other Pharmacist Restrictions Eased by the EO

In addition to permitting emergency refills, the EO provides that pharmacists may do the following:

• Temporarily operate in a pharmacy area not designated on the pharmacy license. However, pharmacists may not prepare any sterile drug products beyond low-risk preparations in such temporary facilities;
• Dispense and/or administer drugs to treat COVID-19 pursuant to protocols established by the Centers for Disease Control and Prevention, the National Institute of Health, or by the Chief Medical Executive of the Department of Health and Human Services;
• Substitute a therapeutically equivalent medication for a medication subject to critical shortages without the authorization of a prescriber. If the pharmacist does substitute such a medication, they must inform the patient of the substitution. The pharmacist must also inform the prescriber of the substitution within a reasonable period of time after dispensing the prescription. The prescriber will not incur any criminal or civil liability or licensing disciplinary action as a result of filling/refilling such a prescription; and
• Remotely supervise pharmacy technicians and other pharmacy staff. Note that any remote supervision must be done via a real-time, continuous audiovisual camera system so that the pharmacist is able to visually identify the markings on tablets and capsules and provide real-time patient consultation. Further, the pharmacists must have access to all relevant patient information necessary to perform the remote supervision. Note that a pharmacy technician is not permitted to perform sterile or nonsterile compounding if a pharmacist is not on the premises.

Additionally, the EO provides that if a pharmacist is serving as a preceptor for student pharmacists, they may supervise student pharmacists remotely to fulfill eligibility for licensure and avoid delaying graduation. By permitting such remote supervision, the EO seeks to increase the number of pharmacists able to serve patients during the COVID-19 pandemic.

Out-of-State Pharmacies and Wholesale Distributors

EO 2020-25 also provides that pharmacies and wholesale distributors with an out-of-state license, certificate or other permit in good standing must be deemed licensed to do business in Michigan. Such out-of-state pharmacies and wholesale distributors must abide by all applicable Michigan regulations for pharmacy and are prohibited from delivering any controlled substances into the state.

Note that an out-of-state pharmacy permitted to do business in Michigan under EO 2020-25 is not required to have a Michigan-licensed pharmacist serving as its pharmacist-in-charge to do business in the state. Further, if the out-of-state pharmacy intends to provide sterile compounding services to Michigan patients, it must hold a current accreditation from a national organization approved by the Michigan Board of Pharmacy.

Timeframe

The EO took effect on March 25, 2020 and ends on April 22, 2020, however, it may be extended as necessary to combat the COVID-19 pandemic. Therefore, pharmacists should periodically check whether any additional action has been taken to extend these changes beyond April 22, 2020.

For any questions regarding the emergency prescription refills or the relaxation of any Pharmacist requirements discussed herein, please contact Adrienne Dresevic, Esq. at (248) 996-8510 or by email at adresevic@thehlp.com.