2023 23LSO-0448
STATE OF WYOMING
HOUSE BILL NO. HB0191
Pharmacy benefit manager act enhancements.
Sponsored by: Representative(s) Banks, Allemand, Bear,
Neiman and Winter and Senator(s) Biteman,
Brennan and Hutchings
A BILL
for
1 AN ACT relating to pharmacy benefit managers; requiring
2 reporting on pharmacy benefit manager audits; regulating
3 the conduct of pharmacy benefit managers; providing
4 monetary reimbursement level requirements; amending
5 provisions governing pharmacy benefit manager audits;
6 requiring fee transparency; amending provisions governing
7 maximum allowable cost appeals; regulating pharmacy benefit
8 managers regarding the state employees' and officials'
9 group insurance program; allowing groups to contract with
10 insurers, preferred provider organizations or health
11 maintenance organizations as specified; clarifying
12 application of the Health Care Reimbursement Reform Act of
13 1985 to pharmacy benefit managers; providing definitions;
14 making conforming amendments; repealing unnecessary
15 definitions; requiring rulemaking; amending rulemaking
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1 authority; authorizing positions; providing appropriations;
2 and providing for effective dates.
3
4 Be It Enacted by the Legislature of the State of Wyoming:
5
6 Section 1. W.S. 26-52-105, 26-52-106, 26-52-108 and
7 26-52-109 are created to read:
8
9 26-52-105. Pharmacy benefit manager audit appeals
10 report.
11
12 (a) Each pharmacy benefit manager shall track,
13 monitor and report to the commissioner within thirty (30)
14 days of the close of each calendar quarter, the following
15 information related to the drug reimbursement appeals
16 process mandated under W.S. 26-52-104(e):
17
18 (i) The total number of appeals filed by
19 contracted pharmacies or pharmacy designees who hold a
20 contract with the pharmacy benefit manager and the number
21 of appeals that were denied or where reimbursement was
22 upheld on appeal by the pharmacy benefit manager;
23
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1 (ii) For each appeal that the pharmacy benefit
2 manager denied, the reasons for the denial and proof that
3 the pharmacy benefit manager complied with the requirements
4 imposed by W.S. 26-52-104(f); and
5
6 (iii) For each appeal that the pharmacy benefit
7 manager upheld, the total amount of any cost adjustment
8 made by the pharmacy benefit manager and the number of days
9 taken to make the cost adjustment.
10
11 (b) In addition to the reporting requirement under
12 subsection (a) of this section, upon the request of the
13 commissioner, a pharmacy benefit manager shall provide any
14 of the information required under this section if the
15 commissioner believes the information is reasonably
16 necessary to ensure compliance with this chapter and the
17 Health Care Reimbursement Reform Act of 1985 under W.S.
18 26-22-501 through 26-22-505.
19
20 26-52-106. Retroactive claim denials or reductions
21 prohibited; reimbursement restrictions; prohibited fees.
22
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1 (a) A pharmacy benefit manager shall not directly or
2 indirectly retroactively deny or reduce a claim or
3 aggregate of claims for drug reimbursement by a pharmacy or
4 the pharmacy's designee who holds a contract with the
5 pharmacy benefit manager after the claim or aggregate of
6 claims has been finally adjudicated, unless the original
7 claim was submitted fraudulently.
8
9 (b) A pharmacy benefit manager shall not charge a
10 pharmacy or the pharmacy's designee who holds a contract
11 with the pharmacy benefit manager any fee related to the
12 adjudication of a drug reimbursement claim, including any
13 fee for:
14
15 (i) The receipt or processing of a pharmacy
16 claim;
17
18 (ii) The development or management of a claim
19 processing, appeals processing or adjudication network; or
20
21 (iii) Participating in a claim processing,
22 appeal processing or claim adjudication network.
23
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1 (c) A pharmacy benefit manager shall not engage in
2 any practice that:
3
4 (i) In any way bases pharmacy or pharmacy
5 designee reimbursement for a drug on patient outcomes,
6 scores or metrics. Notwithstanding this prohibition, a
7 pharmacy benefit manager may base pharmacy and pharmacy
8 designee reimbursement for pharmacy care, including
9 dispensing fees, on patient outcomes, scores or metrics if
10 the patient outcomes, scores or metrics are disclosed to
11 and agreed upon by the pharmacy or the pharmacy's designee
12 who holds a contract with the pharmacy benefit manager in
13 advance;
14
15 (ii) Imposes upon a pharmacy or the pharmacy's
16 designee who holds a contract with the pharmacy benefit
17 manager a point of sale fee or retroactive fee;
18
19 (iii) Derives any revenue in connection with
20 performing pharmacy benefit management services from a
21 pharmacy, the pharmacy's designee who holds a contract with
22 the pharmacy benefit manager or a covered individual. This
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1 paragraph shall not be construed to prohibit any pharmacy
2 benefit manager from receiving deductibles or copayments;
3
4 (iv) Restricts the use or prescribing of any
5 generic prescription drug approved by the federal food and
6 drug administration as an alternative to a name brand
7 prescription drug unless the prescribing physician includes
8 a notation that the prescription shall be "dispensed as
9 written" or other similar language; or
10
11 (v) Provides financial or other incentives for
12 the use of a specific name brand prescription drug for any
13 reason.
14
15 26-52-108. Network participation requirements.
16
17 No pharmacy benefit manager shall impose pharmacy
18 accreditation standards or recertification requirements on
19 a pharmacy or the pharmacy's designee who holds a contract
20 with the pharmacy benefit manager as a condition for
21 participating in a network that are inconsistent with, more
22 stringent than or in addition to applicable federal and
23 state requirements for licensure in this state.
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1
2 26-52-109. Prohibited activities; contractual
3 changes; retaliation.
4
5 (a) No pharmacy benefit manager shall amend or
6 otherwise change the terms of an existing contract between
7 the pharmacy benefit manager and a pharmacy or the
8 pharmacy's designee who holds a contract with the pharmacy
9 benefit manager unless:
10
11 (i) The change is disclosed by the pharmacy
12 benefit manager to the pharmacy or the pharmacy's designee
13 who holds a contract with the pharmacy benefit manager at
14 least forty-five (45) days before the effective date of the
15 change in the contract and the change is agreed upon in
16 writing by the pharmacy or the pharmacy's designee; or
17
18 (ii) The change is required to be made under
19 state or federal law or by a governmental regulatory
20 authority. If the change is required by law or regulatory
21 authority, the pharmacy benefit manager shall provide the
22 pharmacy or the pharmacy's designee who holds a contract
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1 with the pharmacy benefit manager with a citation to the
2 specific statute, order or regulation requiring the change.
3
4 (b) No pharmacy benefit manager shall retaliate in
5 any way against a pharmacy or the pharmacy's designee who
6 holds a contract with the pharmacy benefit manager based on
7 the pharmacy's or the pharmacy's designee's exercise of any
8 right or remedy under this chapter. Retaliation under this
9 subsection includes:
10
11 (i) Terminating or refusing to renew a contract
12 with the pharmacy or the pharmacy's designee who holds a
13 contract with the pharmacy benefit manager;
14
15 (ii) Subjecting the pharmacy or the pharmacy's
16 designee who holds a contract with the pharmacy benefit
17 manager to increased audits, as determined by the
18 commissioner. An increase in audits shall include increases
19 to the number of audits performed in a calendar year or
20 significantly increasing the number of prescriptions
21 included as part of a single audit; or
22
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1 (iii) Failing to promptly pay the pharmacy or
2 the pharmacy's designee who holds a contract with the
3 pharmacy benefit manager money owed by the pharmacy benefit
4 manager.
5
6 (c) For purposes of this section, a pharmacy benefit
7 manager shall not be considered to have retaliated against
8 a pharmacy or the pharmacy's designee who holds a contract
9 with the pharmacy benefit manager if the pharmacy benefit
10 manager:
11
12 (i) Takes an action in response to a credible
13 allegation of fraud against the pharmacy or the pharmacy's
14 designee who holds a contract with the pharmacy benefit
15 manager; and
16
17 (ii) Provides reasonable notice to the pharmacy
18 or the pharmacy's designee who holds a contract with the
19 pharmacy benefit manager of the allegation of fraud and the
20 basis of the allegation before taking the action.
21
22 (d) Any covered individual, pharmacy or the
23 pharmacy's designee who holds a contract with the pharmacy
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1 benefit manager injured by a violation of this section may
2 bring a cause of action in a court of competent
3 jurisdiction for damages or to enjoin the continuation of
4 the violation.
5
6 (e) The commissioner may examine or audit the books
7 and records of any pharmacy benefit manager to determine if
8 the pharmacy benefit manager is in compliance with this
9 section. Any information or data acquired during the
10 examination or audit is not a public record and is not
11 subject to the Public Records Act, W.S. 16-4-201 through
12 16-4-205.
13
14 Section 2. W.S. 26-52-107 is created to read:
15
16 26-52-107. Pharmacy reimbursement transparency.
17
18 No pharmacy benefit manager shall reimburse a pharmacy or
19 the pharmacy's designee who holds a contract with the
20 pharmacy benefit manager for a prescription drug in an
21 amount less than the national average drug acquisition cost
22 at the time the drug is administered or dispensed plus the
23 applicable dispensing fee. If the national average drug
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1 acquisition cost is not available at the time a drug is
2 administered or dispensed, a pharmacy benefit manager shall
3 not reimburse in an amount that is less than the wholesale
4 acquisition cost of the drug as defined by 42 U.S.C. §
5 1395w-3a(c)(6)(B) plus the applicable dispensing fee.
6
7 Section 3. W.S. 9-3-205 by creating a new subsection
8 (f), 26-22-502(a)(iv), 26-52-101, 26-52-102(a)(intro) and
9 by creating new paragraphs (viii) and (ix),
10 26-52-103(a)(iii), (b)(vii), (ix) and by creating a new
11 paragraph (xii) and 26-52-104(d)(iv), (v), by creating a
12 new paragraph (vi) and by creating new subsections (k) and
13 (m) are amended to read:
14
15 9-3-205. Administration and management of group
16 insurance program; powers and duties; adoption of rules and
17 regulations; interfund borrowing authority; pharmacy
18 benefit managers.
19
20 (f) Any contract governing a group insurance plan
21 that involves the services of a pharmacy benefit manager or
22 a claims administrator and that makes the pharmacy benefit
23 manager or claims administrator responsible for
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1 administering or managing covered prescription drugs
2 dispensed to enrolled employees, officials and their
3 dependents shall require that payment for the drugs and
4 applicable administrative services be based on a pass
5 through pricing model under which:
6
7 (i) Any payment made for a covered prescription
8 drug to a pharmacy benefit manager or a claims
9 administrator:
10
11 (A) Is limited to ingredient costs and a
12 professional dispensing fee in an amount not less than that
13 which would be paid under the group insurance plan if the
14 fee was being paid directly under the plan and without the
15 services of the pharmacy benefit manager or claims
16 administrator; and
17
18 (B) Is passed through in its entirety to
19 the pharmacy or the pharmacy designee that dispensed the
20 drug.
21
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1 (ii) Any payment for administrative services is
2 limited to a reasonable fee that covers the cost of
3 providing the administrative services;
4
5 (iii) Any form of spread pricing is prohibited.
6 "Spread pricing" means any amount charged or claimed by the
7 pharmacy benefit manager or claims administrator in excess
8 of the amount paid to the pharmacy or the pharmacy's
9 designee who holds a contract with the pharmacy benefit
10 manager on behalf of the state, including any post-sale or
11 post-invoice fees, discounts or related adjustments, direct
12 and indirect remuneration fees or assessments, after
13 allowing for a reasonable administrative services fee as
14 provided in paragraph (ii) of this subsection.
15
16 26-22-502. Definitions.
17
18 (a) As used in this article:
19
20 (iv) "Insurer" means an insurance company or a
21 health service corporation authorized in this state to
22 issue policies or subscriber contracts which reimburse for
23 expenses of health care services. "Insurer" includes any
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1 contracted agent or benefit manager of an insurance company
2 or health service corporation that administers or manages
3 prescription drug benefits in accordance with W.S.
4 26-52-101 through 26-52-109;
5
6 26-52-101. Licensure of pharmacy benefit managers;
7 waiver prohibited.
8
9 (a) No person shall act or hold himself out as a
10 pharmacy benefit manager in this state unless he obtains a
11 license from the department commissioner. The department
12 commissioner shall through adopt rules as necessary to
13 carry out this chapter, including rules that establish
14 license requirements and procedures for the licensing of
15 pharmacy benefit managers consistent with this article. The
16 requirements shall only provide for the adequate
17 identification of licensees and the payment of the required
18 licensing fee chapter.
19
20 (b) The provisions of this chapter shall not be
21 waived, voided or nullified by contract or any other type
22 of agreement.
23
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