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EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
SECOND REGULAR SESSION
SENATE BILL NO. 968
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR FITZWATER.
5510S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal sections 338.015 and 376.388, RSMo, and to enact in lieu thereof two new sections
relating to pharmacy benefit 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 1
repealed and two new sections enacted in lieu thereof, to be 2
known as sections 338.015 and 376.388, to read as follows:3
338.015. 1. The provisions of sections 338.010 to 1
338.015 shall not be construed to inhibit the patient's 2
freedom of choice to obtain prescription services from any 3
licensed pharmacist. However, nothing in sections 338.010 4
to 338.315 abrogates the patient's ability to waive freedom 5
of choice under any contract with regard to payment or 6
coverage of prescription expense. 7
2. All pharmacists may provide pharmaceutical 8
consultation and advice to persons concerning the safe and 9
therapeutic use of their prescription drugs. 10
3. All patients shall have the right to receive a 11
written prescription from their prescriber to take to the 12
facility of their choice or to have an electronic 13
prescription transmitted to the facility of their choice. 14
4. Notwithstanding any other provision of law to the 15
contrary, no pharmacy benefits manager shall: 16
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(1) Prohibit or limit a covered person from selecting 17
a pharmacy or pharmacist of their choice or impose a 18
monetary advantage or penalty that would affect a covered 19
person's choice if a pharmacy or pharmacist has agreed to 20
participate in a covered person's health benefit plan. A 21
monetary advantage or penalty includes, but is not limited 22
to, a copayment or coinsurance variation, a reduction in 23
reimbursement for services, a promotion of one participating 24
pharmacy over another, or comparing the reimbursement rates 25
of a pharmacy against mail order pharmacy reimbursement 26
rates; 27
(2) Impose upon a pharmacy or pharmacist any course of 28
study, accreditation, certification, or credentialing as a 29
condition of participation that is inconsistent with, more 30
stringent than, or in addition to any state law or rules 31
promulgated by the board of pharmacy for the purpose of 32
licensure or certification; 33
(3) Pay or reimburse a pharmacy or pharmacist in this 34
state for an amount less than the most recently published 35
National Average Drug Acquisition Cost for a prescription 36
drug on the date that the prescription drug is administered 37
or dispensed. 38
376.388. 1. As used in this section, unless the 1
context requires otherwise, the following terms shall mean: 2
(1) "Contracted pharmacy" or "pharmacy", a pharmacy 3
located in Missouri participating in the network of a 4
pharmacy benefits manager through a direct or indirect 5
contract; 6
(2) "Health carrier", an entity subject to the 7
insurance laws and regulations of this state that contracts 8
or offers to contract to provide, deliver, arrange for, pay 9
for, or reimburse any of the costs of health care services, 10
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including a sickness and accident insurance company, a 11
health maintenance organization, a nonprofit hospital and 12
health service corporation, or any other entity providing a 13
plan of health insurance, health benefits, or health 14
services, except that such plan shall not include any 15
coverage pursuant to a liability insurance policy, workers' 16
compensation insurance policy, or medical payments insurance 17
issued as a supplement to a liability policy; 18
(3) "Maximum allowable cost", [the per-unit amount 19
that a pharmacy benefits manager reimburses a pharmacist for 20
a prescription drug, excluding a dispensing or professional 21
fee] the maximum amount that a pharmacy benefits manager 22
shall reimburse a pharmacy for the cost of a multisourced 23
drug, medical product, or a device, not including the 24
dispensing fee for the drug; 25
(4) "Maximum allowable cost list" or "MAC list", [a 26
listing of drug products that meet the standard described in 27
this section] the multisource generic drugs, medical 28
products, and devices for which a maximum allowable cost has 29
been established by a pharmacy benefits manager or a 30
purchaser; 31
(5) "National Average Drug Acquisition Cost" or 32
"NADAC", the monthly survey of retail pharmacies conducted 33
by the federal Centers for Medicare and Medicaid Services to 34
determine the average acquisition cost for drugs; 35
(6) "Pharmacy", as such term is defined in chapter 338; 36
[(6)] (7) "Pharmacy benefits manager", [an entity that 37
contracts with pharmacies on behalf of health carriers or 38
any health plan sponsored by the state or a political 39
subdivision of the state] a person, business, or entity, 40
including a wholly or partially owned or controlled 41
subsidiary of a pharmacy benefits manager, that provides 42
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claims processing services or other drug or device services, 43
or both, for health benefit plans or health carriers. A 44
"pharmacy benefits manager" shall not include: 45
(a) A health care professional licensed to practice in 46
this state; 47
(b) A health care facility licensed in this state; 48
(c) A consultant who only provides advice as to the 49
selection or performance of a pharmacy benefits manager; or 50
(d) An entity that provides claims processing services 51
or other drug or device services, or both, exclusively for 52
its enrollees; 53
(8) "Pharmacy benefits manager affiliate": 54
(a) A pharmacy or pharmacist that directly or 55
indirectly, through one or more intermediaries, owns or 56
controls a pharmacy with a pharmacy benefits manager; or 57
(b) A pharmacy that directly or indirectly, through 58
one or more intermediaries, is owned or under common 59
ownership or control of a pharmacy benefits manager. 60
2. Upon each contract execution or renewal between a 61
pharmacy benefits manager and a pharmacy or between a 62
pharmacy benefits manager and a pharmacy's contracting 63
representative or agent, such as a pharmacy services 64
administrative organization, a pharmacy benefits manager 65
shall, with respect to such contract or renewal: 66
(1) Include in such contract or renewal the sources 67
utilized to determine maximum allowable cost and update such 68
pricing information at least every seven days; and 69
(2) Maintain a procedure to eliminate products from 70
the maximum allowable cost list of drugs subject to such 71
pricing or modify maximum allowable cost pricing at least 72
every seven days, if such drugs do not meet the standards 73
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and requirements of this section, in order to remain 74
consistent with pricing changes in the marketplace. 75
3. A pharmacy benefits manager shall reimburse 76
pharmacies for drugs subject to maximum allowable cost 77
pricing that has been updated to reflect market pricing at 78
least every seven days as set forth under subdivision (1) of 79
subsection 2 of this section. For each claim, the 80
reimbursement shall be the greater of the maximum allowable 81
cost pricing or the current NADAC pricing. 82
4. A pharmacy benefits manager shall not place a drug 83
on a maximum allowable cost list unless there are at least 84
two therapeutically equivalent multisource generic drugs, or 85
at least one generic drug available from at least one 86
manufacturer, generally available for purchase by network 87
pharmacies from national or regional wholesalers. 88
5. All contracts between a pharmacy benefits manager 89
and a contracted pharmacy or between a pharmacy benefits 90
manager and a pharmacy's contracting representative or 91
agent, such as a pharmacy services administrative 92
organization, shall include a process to internally appeal, 93
investigate, and resolve disputes regarding the NADAC and 94
maximum allowable cost pricing. The process shall include 95
the following: 96
(1) The right to appeal shall be limited to fourteen 97
calendar days following the reimbursement of the initial 98
claim; and 99
(2) A requirement that the pharmacy benefits manager 100
shall respond to an appeal described in this subsection no 101
later than fourteen calendar days after the date the appeal 102
was received by such pharmacy benefits manager. 103
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No pharmacy benefits manager shall retaliate against a 104
contracted pharmacy for exercising its right to appeal to 105
the pharmacy benefits manager. 106
6. For appeals that are denied, the pharmacy benefits 107
manager shall provide the reason for the denial and identify 108
the national drug code of a drug product that may be 109
purchased by contracted pharmacies at a price at or below 110
the maximum allowable cost and, when applicable, may be 111
substituted lawfully. 112
7. If the appeal is successful, the pharmacy benefits 113
manager shall: 114
(1) Adjust the maximum allowable cost price that is 115
the subject of the appeal effective on the day after the 116
date the appeal is decided; 117
(2) Apply the adjusted maximum allowable cost price to 118
all similarly situated pharmacies as determined by the 119
pharmacy benefits manager; and 120
(3) Allow the pharmacy that succeeded in the appeal to 121
reverse and rebill the pharmacy benefits claim giving rise 122
to the appeal. 123
8. Appeals shall be upheld if: 124
(1) The pharmacy being reimbursed for the drug subject 125
to the maximum allowable cost pricing in question was not 126
reimbursed as required under subsection 3 of this section; 127
[or] 128
(2) The drug subject to the maximum allowable cost 129
pricing in question does not meet the requirements set forth 130
under subsection 4 of this section; or 131
(3) The drug subject to maximum allowable cost pricing 132
was reimbursed at a rate lower than the NADAC. 133
9. A pharmacy benefits manager shall reimburse any 134
pharmacist or pharmacy located in this state for an amount 135
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equal to what the pharmacy benefits manager reimburses a 136
pharmacy benefits manager affiliate for dispensing the same 137
prescription drug. 138
10. In addition to the reimbursements determined by 139
maximum allowable cost and the NADAC, a pharmacy benefits 140
manager shall reimburse the pharmacy or pharmacist a 141
dispensing fee in an amount no less than ninety percent of 142
the MO HealthNet professional dispensing fee in effect on 143
the date of service. 144
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