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Legislation Document
SPONSOR:
Rep. Bush & Sen. Mantzavinos & Sen. Townsend
Rep. Bolden; Sens. Poore, Wilson
HOUSE OF REPRESENTATIVES
153rd GENERAL ASSEMBLY
HOUSE BILL NO. 212
AN ACT TO AMEND TITLE 18 OF THE DELAWARE CODE RELATING TO OVERPAYMENT RECOVERY AND AUDIT PRACTICES.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend § 2730, Title 18 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2730. Collection of overpayments by health insurers and health plans.
(c) A health insurer or health plan
shall
may
not initiate overpayment recovery efforts more than
24
12
months after the original payment for the claim was made.
For purposes of this subsection, overpayment recovery efforts are “initiated” when a health insurer or health plan first identifies an error in the original payment for the claim through an initial audit report or similar communication delivered to the health-care provider.
No such time limit
shall apply
applies
to overpayment recovery efforts which
are:
are any of the following:
(1) Based on
a reasonable belief of
fraud, abuse, or other intentional
misconduct;
misconduct as indicated by physical review or review of claims data or statements.
(2) Required by, or initiated at the request of, a self-insured
plan; or
plan.
(3) Required by a state or federal government plan.
(h) A finding of overpayment must be based on the actual overpayment and not a projection based on the number of patients served having a similar diagnosis or on the number of similar orders or refills for similar drugs.
(i) The entity conducting the audit may not use extrapolation in calculating the recoupment or penalties for audits unless required by state or federal law or regulations.
Section 2. Amend § 3305A, Title 18 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 3305A. Requirements for recoupment or chargeback [For application of this section, see 80 Del. Laws, c. 245, §? 2].
For recoupment or chargeback, the following criteria apply:
(9) Whenever it engages in recoupment or chargeback efforts, a PBM must provide written notice to the pharmacy that identifies the error made in the processing or payment of the claim and justifies the recoupment or chargeback efforts.
Section 3. Amend § 3310A, Title 18 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 3310A. Applicability of other laws and regulations [For application of this section, see 80 Del. Laws, c. 245, § 2].
This subchapter does not apply to any investigative audit that involves suspected fraud, wilful misrepresentation, abuse, or any audit completed by the State.
The provisions of this subchapter do not apply to an investigative audit of pharmacy records when any of the following apply:
(1) Fraud, waste, abuse, or other intentional misconduct is indicated by physical review or review of claims data or statements.
(2) Other investigative methods indicate a pharmacy is or has been engaged in criminal wrongdoing, fraud, or other intentional or wilful misrepresentation.
(3) The audit is being conducted by the State.
SYNOPSIS
Section 1 of this Act amends the time period during which health insurers may initiate overpayment recovery efforts from 24 months to 12 months of a claim being paid. This Act also amends one of the exemptions to the overpayment recovery deadline to require an indication of fraud, abuse, or other intentional misconduct based on a physical review or review of claims data or statements as opposed to merely having a reasonable belief of such fraud, abuse or other intentional misconduct. It aligns requirements for provider-oriented clawbacks with those for pharmacies.
Section 2 of this Act requires written notice from pharmacy benefit managers or entities conducting pharmacy audits. Because Department examinations have indicated that PBMs misuse this provision in the law to conduct audits outside the parameters of the Pharmacy Audit Integrity Program, Section 3 of this Act amends the exclusions to the applicability of the pharmacy audit rules to require that pharmacy benefits managers have more definitive proof, based on physical review of claims data or other investigative methods, to believe misconduct has occurred before the rules related to the Pharmacy Audit Integrity Program become inapplicable to an investigative audit.
This Act also makes technical corrections to existing law to conform to the requirements of the Delaware Legislative Drafting Manual.