Modifies provisions relating to pharmacy benefits managers

SECOND REGULAR SESSION
HOUSE BILL NO. 1975
103RD GENERAL ASSEMBL Y
INTRODUCED BY REPRESENT A TIVE COOK.
5333H.01I JOSEPH ENGLER, Chief Clerk
AN ACT
T o repeal sections 338.015 and 376.388, RSMo, and to enact in lieu thereof two new sections
relating to pharmacy benefits managers.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 338.015 and 376.388, RSMo, are repealed and two new sections
2 enacted in lieu thereof, to be known as sections 338.015 and 376.388, to read as follows:
338.015. 1. As used in this section, the following terms mean:
2 (1) "Covered person", the same meaning given to the term in section 376.1257;
3 (2) "Health benefit plan", the same meaning given to the term in section
4 376.1350;
5 (3) "National A verage Drug Acquisition Cost", the same meaning given to the
6 term in section 376.388;
7 (4) "Pharmacy benefits manager", the same meaning given to the term in section
8 376.388.
9 2. The provisions of sections 338.010 to 338.015 shall not be construed to inhibit the
10 patient's freedom of choice to obtain prescription services from any licensed pharmacist.
11 However , nothing in sections 338.010 to 338.315 abrogates the patient's ability to waive
12 freedom of choice under any contract with regard to payment or coverage of prescription
13 expense. A waiver shall not be construed as to permit a pharmacy benefits manager to
14 engage in conduct pro hibited under this section.
15 [ 2. ] 3. All pharmacists may provide pharmaceutical consultation and advice to
16 persons concerning the safe and therapeutic use of their prescription drugs.
EXPLANA TION — Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is
intended to be omitted from the law . Matter in bold-face type in the above bill is proposed language.
17 [ 3. ] 4. All patients shall have the right to receive a written prescription from their
18 prescriber to take to the facility of their choice or to have an electronic prescription
19 transmitted to the facility of their choice.
20 5. Notwithstanding any pro vision of law to the contrary , a pharmacy benefits
21 manager shall be subject to the following pro hibitions:
22 (1) If a pharmacy or pharmacist has agr eed to participate in a covered person's
23 health benefit plan, the pharmacy benefits manager shall not proh ibit or limit the
24 cover ed person fr om selecting a pharmacy or pharmacist of his or her choice or impose
25 a monetary advantage or penalty that would affect a cover ed person's choice. A
26 monetary advantage or penalty includes a co-payment or coinsurance variation, a
27 r eduction in reim bursement for services, a pro motion of one participating pharmacy
28 over another , or a comparison of the reim bursement rates of a pharmacy against mail-
29 order pharmacy reim bursement rates;
30 (2) A pharmacy benefits manager shall not impose upon a pharmacy or
31 pharmacist, as a condition of participation in a third-party payer network, any course of
32 study , accr editation, certification, or cred entialing that is inconsistent with, mor e
33 stringent than, or in addition to state req uirements for licensur e or certification and the
34 administrative rules adopted by the board of pharmacy; and
35 (3) A pharmacy benefits manager shall not pay or reim burse a pharmacy or
36 pharmacist in this state in an amount less than the most re cently published National
37 A verage Drug Acquisition Cost for a prescription drug on the date that the pr escription
38 drug is administered or dispensed.
376.388. 1. As used in this section, unless the context requires otherwise, the
2 following terms shall mean:
3 (1) "Contracted pharmacy" or "pharmacy", a pharmacy located in Missouri
4 participating in the network of a pharmacy benefits manager through a direct or indirect
5 contract;
6 (2) "Health carrier", an entity subject to the insurance laws and regulations of this
7 state that contracts or of fers to contract to provide, deliver , arrange for , pay for , or reimburse
8 any of the costs of health care services, including a sickness and accident insurance company ,
9 a health maintenance or ganization, a nonprofit hospital and health service corporation, or any
10 other entity providing a plan of health insurance, health benefits, or health services, except
11 that such plan shall not include any coverage pursuant to a liability insurance policy , workers'
12 compensation insurance policy , or medical payments insurance issued as a supplement to a
13 liability policy;
14 (3) "Maximum allowable cost", [ the per -unit amount that a pharmacy benefits
15 manager reimburses a pharmacist for a prescription drug, excluding a dispensing or
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16 professional fee ] the maximum amount that a pharmacy benefits manager will
17 r eimburse a pharmacy for the cost of a multisour ce drug, medical pro duct, or device.
18 This amount does not include any additional dispensing fees or any additional
19 r eimbursement amounts requ ired when rei mbursement is based on the National
20 A verage Drug Acquisition Cost ;
21 (4) "Maximum allowable cost list" or "MAC list", [ a listing of drug products that
22 meet the standard described in this section ] the multisour ce generic drugs, medical
23 pr oducts, and devices for which a maximum allowable cost has been established by a
24 pharmacy benefits manager or a pur chaser ;
25 (5) "National A verage Drug Acquisition Cost", the monthly survey of reta il
26 pharmacies conducted by the federal Centers for Medicar e and Medicaid Services to
27 determine the average acquisition cost for drugs;
28 (6) "Other prescription drug or device services", services other than claims
29 pr ocessing services that ar e pr ovided dir ectly or indirectl y , whether in connection with
30 or separate from claims pr ocessing services;
31 (7) "Pharmacy", as such term is defined in chapter 338;
32 [ (6) ] (8) "Pharmacy benefits manager", [ an entity that contracts with pharmacies on
33 behalf of health carriers or any health plan sponsored by the state or a political subdivision of
34 the state ] a person, business, or entity , including a wholly or partially owned or
35 contr olled subsidiary of such person, business, or entity , that prov ides claims pr ocessing
36 services or other pr escription drug or device services, or both, for health benefit plans
37 or health carriers. The term "pharmacy benefits manager" shall not include:
38 (a) Health care profes sionals licensed in this state;
39 (b) Health care facilities licensed in this state;
40 (c) Consultants who only prov ide advice as to the selection or performance of a
41 pharmacy benefits manager; or
42 (d) Entities that provi de claims pr ocessing services or other pr escription drug or
43 device services, or both, exclusively for their enr ollees;
44 (9) "Pharmacy benefits manager affiliate", any pharmacy or pharmacist that
45 dir ectly or indirect ly , thr ough one or mor e intermediaries, is owned by , under common
46 ownership with, or controlled by a pharmacy benefits manager .
47 2. Upon each contract execution or renewal between a pharmacy benefits manager
48 and a pharmacy or between a pharmacy benefits manager and a pharmacy's contracting
49 representative or agent, such as a pharmacy services administrative or ganization, a pharmacy
50 benefits manager shall, with respect to such contract or renewal:
51 (1) Include in such contract or renewal the sources utilized to determine maximum
52 allowable cost and update such pricing information at least every seven days; and
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53 (2) Maintain a procedure to eliminate products from the maximum allowable cost list
54 of drugs subject to such pricing or modify maximum allowable cost pricing at least every
55 seven days, if such drugs do not meet the standards and requirements of this section, in order
56 to remain consistent with pricing changes in the marketplace.
57 3. A pharmacy benefits manager shall reimburse pharmacies for drugs subject to
58 maximum allowable cost pricing that has been updated to reflect market pricing at least every
59 seven days as set forth under subdivision (1) of subsection 2 of this section. For each claim,
60 the reim bursement shall be the great er of the maximum allowable cost pricing or the
61 curr ent National A verage Drug Acquisition Cost pricing.
62 4. A pharmacy benefits manager shall not place a drug on a maximum allowable cost
63 list unless there are at least two therapeutically equivalent multisource generic drugs, or at
64 least one generic drug available from at least one manufacturer , generally available for
65 purchase by network pharmacies from national or regional wholesalers.
66 5. (1) All contracts between a pharmacy benefits manager and a contracted pharmacy
67 or between a pharmacy benefits manager and a pharmacy's contracting representative or
68 agent, such as a pharmacy services administrative or ganization, shall include a process to
69 internally appeal, investigate, and resolve disputes regarding the National A verage Drug
70 Acquisition Cost pricing and maximum allowable cost pricing. The process shall include
71 the following:
72 [ (1) ] (a) The right to appeal shall be limited to fourteen calendar days following the
73 reimbursement of the initial claim; and
74 [ (2) ] (b) A requirement that the pharmacy benefits manager shall respond to an
75 appeal described in this subsection no later than fourteen calendar days after the date the
76 appeal was received by such pharmacy benefits manager .
77 (2) A pharmacy benefits manager shall not ret aliate against a contracted
78 pharmacy for exer cising its right to appeal to the pharmacy benefits manager .
79 6. For appeals that are denied, the pharmacy benefits manager shall provide the
80 reason for the denial and identify the national drug code of a drug product that may be
81 purchased by contracted pharmacies at a price at or below the maximum allowable cost and,
82 when applicable, may be substituted lawfully .
83 7. If the appeal is successful, the pharmacy benefits manager shall:
84 (1) Adjust the maximum allowable cost price that is the subject of the appeal ef fective
85 on the day after the date the appeal is decided;
86 (2) Apply the adjusted maximum allowable cost price to all similarly situated
87 pharmacies as determined by the pharmacy benefits manager; and
88 (3) Allow the pharmacy that succeeded in the appeal to reverse and rebill the
89 pharmacy benefits claim giving rise to the appeal.
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90 8. Appeals shall be upheld if:
91 (1) The pharmacy being reimbursed for the drug subject to the maximum allowable
92 cost pricing in question was not reimbursed as required under subsection 3 of this section; [ or ]
93 (2) The drug subject to the maximum allowable cost pricing in question does not meet
94 the requirements set forth under subsection 4 of this section ; or
95 (3) The drug subject to maximum allowable cost pricing was reim bursed at a
96 rate lower than the National A verage Drug Acquisition Cost pricing.
97 9. A pharmacy benefits manager shall r eimburse any pharmacist or pharmacy
98 located in this state in an amount equal to the amount the pharmacy benefits manager
99 r eimburses a pharmacy benefits manager affiliate for dispensing the same pr escription
100 drug.
101 10. In addition to the reim bursements determined by maximum allowable cost
102 pricing and the National A verage Drug Acquisition Cost pricing, a pharmacy benefits
103 manager shall reim burse each pharmacy or pharmacist a dispensing fee in an amount
104 not less than ninety per cent of the MO HealthNet pr ofessional dispensing fee in effect on
105 the date of service.
106 1 1. If any pr ovision of this section or its application to any person or
107 cir cumstance is held invalid, such determination shall not affect the pro visions or
108 applications of this section that may be given effect without the invalid pr ovision or
109 application, and to that end the pr ovisions of this section ar e severable .
✔
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