Bill Text: HI SB3104 | 2018 | Regular Session | Amended
Bill Title: Relating To Pharmacy Benefit Managers.
Spectrum: Partisan Bill (Democrat 9-0)
Status: (Engrossed - Dead) 2018-04-26 - Received notice of discharge of conferees (Hse. Com. No. 681). [SB3104 Detail]
Download: Hawaii-2018-SB3104-Amended.html
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THE SENATE |
S.B. NO. |
3104 |
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TWENTY-NINTH LEGISLATURE, 2018 |
S.D. 2 |
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STATE OF HAWAII |
H.D. 2 |
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A BILL FOR AN ACT
RELATING TO PHARMACY BENEFIT MANAGERS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The
legislature finds that pharmacy benefit managers are third party administrators
that contract with health plans, employers, unions, and government entities to
manage prescription drug programs on behalf of health plan beneficiaries. Over the past decade, the role of pharmacy
benefit managers in the delivery of health care has significantly
increased. However, a recent report has
found that pharmacy benefit managers have had an adverse impact on the overall
costs and prices of prescription drugs.
The legislature further finds that a
maximum allowable cost list is a list of the maximum amounts that a pharmacy
benefit manager will reimburse a pharmacy for various drugs. In general, no two maximum allowable cost
lists are alike and lists will vary according to drug, pharmacy benefit
manager, and plan sponsor. However, the
lack of transparency surrounding maximum allowable cost pricing has enabled
pharmacy benefit managers to pay aggressively low reimbursements to pharmacies,
while charging significantly higher amounts for the same drug to plan
sponsors. This large discrepancy between
the list price of prescription drugs and the transaction price often results in
much higher patient copayments.
The legislature also finds that nearly all
health plans require some level of cost sharing, either via a fixed copayment
or some percentage of the cost of care.
However, in certain situations, a pharmacy benefit manager may set an
insurance copayment at a higher amount than the actual cost of the medication
and later take back the excess amount from a pharmacy, in a practice known as
copay clawbacks. A pharmacy is generally
prohibited, through its contract with a pharmacy benefit manager, from telling
patients what the pharmacy is being reimbursed.
In these situations, if a pharmacy's usual and customary price is lower
than a patient's copayment, the pharmacy is then barred from informing that
patient about the price, unless the patient specifically asks for the price of
a drug without insurance.
The legislature additionally finds that
although Hawaii has an existing pharmacy benefit manager transparency law, the
law lacks an appropriate enforcement mechanism or incentive for pharmacy
benefit managers to comply with disclosure of maximum allowable cost lists. Furthermore, while this law is currently
under the responsibility of the department of health, the legislature notes
that it would be more appropriate for these requirements to be within the
purview of the department of commerce and consumer affairs, as that is the
department with existing regulatory control over pharmacy benefit managers.
Finally, the legislature notes that
strengthening the ability of pharmacies to receive timely maximum allowable
cost lists, establishing a complaints process for violations, and clarifying
penalties will encourage transparency among pharmacy benefit managers, while
protecting the State's independent pharmacies and consumers.
Accordingly, the purpose of this Act is to:
(2) Require pharmacy benefit managers to disclose where an equivalent drug can be obtained at or below the maximum allowable cost when a maximum allowable cost is upheld on appeal;
(3) Allow contracting pharmacies to reverse and rebill claims if the pharmacy benefit manager establishes a maximum allowable cost that is denied on appeal; provided that the pharmacy benefit manager shall pay the difference to the contracting pharmacies; and
(4) Prohibit a pharmacy benefit manager from penalizing a contracting pharmacy for disclosing information related to an insurance cost-share for a prescription drug or selling a lower-priced drug.
SECTION 2. Chapter 431R, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§431R- Pharmacy
benefit manager; maximum allowable cost. (a)
A pharmacy benefit manager that reimburses a contracting pharmacy for a
drug on a maximum allowable cost basis shall comply with the requirements of
this section.
(b) The pharmacy benefit manager shall make
available to a contracting pharmacy, upon request, the most up-to-date maximum
allowable cost price or prices used by the pharmacy benefit manager for
patients served by the pharmacy, in a readily accessible and secure electronic
or usable web-based format.
(c) A drug shall not be included on a maximum
allowable cost list or reimbursed on a maximum allowable cost basis unless all
of the following apply:
(1) The drug is
listed as "A" or "B" rated in the most recent version of
the Orange Book or has a rating of "NR", "NA", or similar
rating by a nationally recognized reference;
(2) The drug is
generally available for purchase in this State from a national or regional
wholesaler; and
(3) The drug is not
obsolete.
(d) The pharmacy benefit manager shall review and
make necessary adjustments to the maximum allowable cost of each drug on a
maximum allowable cost list at least once every seven days using the most
recent data sources available, and shall apply the updated maximum allowable
cost list beginning that same day to reimburse the contracting pharmacy until
the pharmacy benefit manager next updates the maximum allowable cost list in
accordance with this section.
(e) The pharmacy benefit manager shall have a
clearly defined process for a contracting pharmacy to appeal the maximum
allowable cost for a drug on a maximum allowable cost list that complies with
all of the following:
(1) A contracting
pharmacy may base its appeal on one or more of the following:
(A) The
maximum allowable cost for a drug is below the cost at which the drug is
available for purchase by similarly situated pharmacies in this State from a
national or regional wholesaler; or
(B) The
drug does not meet the requirements of subsection (c) for reimbursement on a
maximum allowable cost basis;
(2) A contracting
pharmacy shall be provided no less than fourteen business days following
receipt of payment for a claim to file the appeal with the pharmacy benefit
manager;
(3) The pharmacy
benefit manager shall make a final determination on the contracting pharmacy's
appeal no later than fourteen business days after the pharmacy benefit
manager's receipt of the appeal;
(4) If the maximum
allowable cost is upheld on appeal, the pharmacy benefit manager shall provide
to the contracting pharmacy the reason therefor and the national drug code of
an equivalent drug that may be purchased by a similarly situated pharmacy at a
price that is equal to or less than the maximum allowable cost of the drug that
is the subject of the appeal; and
(5) If the maximum
allowable cost is not upheld on appeal, the pharmacy benefit manager shall
adjust, for the appealing contracting pharmacy, the maximum allowable cost of
the drug that is the subject of the appeal, within one calendar day of the date
of the decision on the appeal and allow the contracting pharmacy to reverse and
rebill the appealed claim; provided that the pharmacy benefit manager shall pay
the appealing contracting pharmacy the difference between the maximum allowable
cost as adjusted by the pharmacy benefit manager after resolution of the appeal
and the maximum allowable cost appealed by the contracting pharmacy.
(f) A contracting pharmacy shall not disclose to
any third party the maximum allowable cost list and any related information it
receives, either directly from a pharmacy benefit manager or through a pharmacy
services administrative organization or similar entity with which the pharmacy
has a contract to provide administrative services for that pharmacy.
(h) The insurance commissioner may adopt rules pursuant to chapter 91 to enforce the provisions of this section."
SECTION 3. Section 431R-1, Hawaii Revised Statutes, is amended by adding four new definitions to be appropriately inserted and to read as follows:
""Contracting pharmacy" means an independent pharmacy that is not part of a regional or national chain, or part of a pharmacy services administration organization, and that is the only pharmacy available within a ten-mile radius.
"Maximum allowable
cost" means the maximum amount that a pharmacy benefit manager shall
reimburse a pharmacy for the cost of a drug.
"Maximum allowable cost
list" means a list of drugs for which a maximum allowable cost has been
established by a pharmacy benefit manager.
"Orange Book" means the United States Food and Drug Administration's "Approved Drug Products with Therapeutic Equivalence Evaluations" publication and its cumulative supplements, which include a list of approved prescription drug products with therapeutic equivalence evaluations."
SECTION 4. Section 431R-5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The insurance commissioner may assess a fine
of up to $10,000 for each violation by a pharmacy benefit manager or
prescription drug benefit plan provider who is in violation of section 431R-2 [or],
431R-3[.], or 431R- .
In addition, the insurance commissioner may order the pharmacy benefit
manager to take specific affirmative corrective action or make
restitution."
SECTION 5. Section 328-91, Hawaii Revised Statutes, is amended by deleting the definitions of "maximum allowable cost" and "maximum allowable cost list".
[""Maximum allowable
cost" means the maximum amount that a pharmacy benefit manager shall
reimburse a pharmacy for the cost of a drug.
"Maximum allowable cost
list" means a list of drugs for which a maximum allowable cost has been
established by a pharmacy benefit manager."]
SECTION 6. Section 328-106, Hawaii Revised Statutes, is repealed.
["[§328-106] Pharmacy benefit
manager; maximum allowable cost.
(a) A pharmacy benefit manager
that reimburses a contracting pharmacy for a drug on a maximum allowable cost
basis shall comply with the requirements of this section.
(b) The pharmacy benefit manager shall include
the following in the contract information with a contracting pharmacy:
(1) Information
identifying any national drug pricing compendia; or
(2) Other data
sources for the maximum allowable cost list.
(c) The pharmacy benefit manager shall make
available to a contracting pharmacy, upon request, the most up-to-date maximum
allowable cost price or prices used by the pharmacy benefit manager for
patients served by the pharmacy in a readily accessible, secure, and usable
web-based or other comparable format.
(d) A drug shall not be included on a maximum
allowable cost list or reimbursed on a maximum allowable cost basis unless all
of the following apply:
(1) The drug is
listed as "A" or "B" rated in the most recent version of
the Orange Book or has a rating of "NR", "NA", or similar
rating by a nationally recognized reference;
(2) The drug is
generally available for purchase in this State from a national or regional
wholesaler; and
(3) The drug is not
obsolete.
(e) The pharmacy benefit manager shall review and
make necessary adjustments to the maximum allowable cost of each drug on a
maximum allowable cost list at least once every seven days using the most
recent data sources available, and shall apply the updated maximum allowable
cost list beginning that same day to reimburse the contracted pharmacy until
the pharmacy benefit manager next updates the maximum allowable cost list in
accordance with this section.
(f) The pharmacy benefit manager shall have a
clearly defined process for a contracting pharmacy to appeal the maximum
allowable cost for a drug on a maximum allowable cost list that complies with
all of the following:
(1) A contracting
pharmacy may base its appeal on one or more of the following:
(A) The
maximum allowable cost for a drug is below the cost at which the drug is
available for purchase by similarly situated pharmacies in this State from a
national or regional wholesaler; or
(B) The
drug does not meet the requirements of subsection (d);
(2) A contracting
pharmacy shall be provided no less than fourteen business days following
receipt of payment for a claim to file the appeal with the pharmacy benefit
manager;
(3) The pharmacy
benefit manager shall make a final determination on the contracting pharmacy's
appeal no later than fourteen business days after the pharmacy benefit
manager's receipt of the appeal;
(4) If the maximum
allowable cost is upheld on appeal, the pharmacy benefit manager shall provide
to the contracting pharmacy the reason therefor and the national drug code of
an equivalent drug that may be purchased by a similarly situated pharmacy at a
price that is equal to or less than the maximum allowable cost of the drug that
is the subject of the appeal; and
(5) If the maximum
allowable cost is not upheld on appeal, the pharmacy benefit manager shall
adjust, for the appealing contracting pharmacy, the maximum allowable cost of
the drug that is the subject of the appeal, within one calendar day of the date
of the decision on the appeal and allow the contracting pharmacy to reverse and
rebill the appealed claim.
(g) A contracting pharmacy shall not disclose to
any third party the maximum allowable cost list and any related information it
receives, either directly from a pharmacy benefit manager or through a pharmacy
services administrative organization or similar entity with which the pharmacy
has a contract to provide administrative services for that pharmacy."]
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect on July 1, 3000.
Report Title:
Pharmacy Benefit Managers; Maximum Allowable Cost; Requirements; Contracting Pharmacies
Description:
Establishes requirements for pharmacy benefit managers and maximum allowable cost, including the ability of pharmacies to receive comprehensive maximum allowable cost lists and bring complaints within the purview of the Department of Commerce and Consumer Affairs, rather than the Department of Health. Requires pharmacy benefit managers to disclose where an equivalent drug can be obtained at or below the maximum allowable cost when a maximum allowable cost is upheld on appeal. Allows contracting pharmacies to reverse and rebill claims if the pharmacy benefit manager establishes a maximum allowable cost that is denied on appeal and is required to pay the difference to the contracting pharmacies. Preserves the prohibition of a contracting pharmacy from disclosing the maximum allowable cost list and related information to any third party. (SB3104 HD1)
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
