Florida Senate - 2021 SB 390



By Senator Wright





14-00250A-21 2021390__
1 A bill to be entitled
2 An act relating to prescription drug coverage;
3 amending s. 624.3161, F.S.; authorizing the Office of
4 Insurance Regulation to examine pharmacy benefit
5 managers; specifying that certain examination costs
6 are payable by persons examined; transferring,
7 renumbering, and amending s. 465.1885, F.S.; revising
8 the entities conducting pharmacy audits to which
9 certain requirements and restrictions apply;
10 authorizing audited pharmacies to appeal certain
11 findings; providing that health insurers and health
12 maintenance organizations that transfer a certain
13 payment obligation to pharmacy benefit managers remain
14 responsible for certain violations; amending ss.
15 627.64741 and 627.6572, F.S.; revising the definition
16 of the term “maximum allowable cost”; authorizing the
17 office to require health insurers to submit to the
18 office certain contracts or contract amendments
19 entered into with pharmacy benefit managers;
20 authorizing the office to order health insurers to
21 cancel such contracts under certain circumstances;
22 authorizing the commission to adopt rules; revising
23 applicability; amending s. 627.6699, F.S.; requiring
24 certain health benefit plans covering small employers
25 to comply with certain provisions; amending s.
26 641.314, F.S.; revising the definition of the term
27 “maximum allowable cost”; authorizing the office to
28 require health maintenance organizations to submit to
29 the office certain contracts or contract amendments
30 entered into with pharmacy benefit managers;
31 authorizing the office to order health maintenance
32 organizations to cancel such contracts under certain
33 circumstances; authorizing the commission to adopt
34 rules; revising applicability; providing an effective
35 date.
36
37 Be It Enacted by the Legislature of the State of Florida:
38
39 Section 1. Subsections (1) and (3) of section 624.3161,
40 Florida Statutes, are amended to read:
41 624.3161 Market conduct examinations.—
42 (1) As often as it deems necessary, the office shall
43 examine each pharmacy benefit manager as defined in s. 624.490;
44 each licensed rating organization;, each advisory organization;,
45 each group, association, carrier, as defined in s. 440.02, or
46 other organization of insurers which engages in joint
47 underwriting or joint reinsurance;, and each authorized insurer
48 transacting in this state any class of insurance to which the
49 provisions of chapter 627 are applicable. The examination shall
50 be for the purpose of ascertaining compliance by the person
51 examined with the applicable provisions of chapters 440, 624,
52 626, 627, and 635.
53 (3) The examination may be conducted by an independent
54 professional examiner under contract to the office, in which
55 case payment shall be made directly to the contracted examiner
56 by the insurer or person examined in accordance with the rates
57 and terms agreed to by the office and the examiner.
58 Section 2. Section 465.1885, Florida Statutes, is
59 transferred, renumbered as section 624.491, Florida Statutes,
60 and amended to read:
61 624.491 465.1885 Pharmacy audits; rights.—
62 (1) A health insurer or health maintenance organization
63 providing pharmacy benefits through a major medical individual
64 or group health insurance policy or a health maintenance
65 organization contract, respectively, shall comply with the
66 requirements of this section when the insurer or health
67 maintenance organization or any person or entity acting on
68 behalf of the insurer or health maintenance organization,
69 including, but not limited to, a pharmacy benefit manager as
70 defined in s. 624.490, audits the records of a pharmacy licensed
71 under chapter 465. The person or entity conducting such audit
72 must If an audit of the records of a pharmacy licensed under
73 this chapter is conducted directly or indirectly by a managed
74 care company, an insurance company, a third-party payor, a
75 pharmacy benefit manager, or an entity that represents
76 responsible parties such as companies or groups, referred to as
77 an “entity” in this section, the pharmacy has the following
78 rights:
79 (a) Except as provided in subsection (3), notify the
80 pharmacy To be notified at least 7 calendar days before the
81 initial onsite audit for each audit cycle.
82 (b) Not schedule an To have the onsite audit during
83 scheduled after the first 3 calendar days of a month unless the
84 pharmacist consents otherwise.
85 (c) Limit the duration of To have the audit period limited
86 to 24 months after the date a claim is submitted to or
87 adjudicated by the entity.
88 (d) In the case of To have an audit that requires clinical
89 or professional judgment, conduct the audit in consultation
90 with, or allow the audit to be conducted by, or in consultation
91 with a pharmacist.
92 (e) Allow the pharmacy to use the written and verifiable
93 records of a hospital, physician, or other authorized
94 practitioner, which are transmitted by any means of
95 communication, to validate the pharmacy records in accordance
96 with state and federal law.
97 (f) Reimburse the pharmacy To be reimbursed for a claim
98 that was retroactively denied for a clerical error,
99 typographical error, scrivener’s error, or computer error if the
100 prescription was properly and correctly dispensed, unless a
101 pattern of such errors exists, fraudulent billing is alleged, or
102 the error results in actual financial loss to the entity.
103 (g) Provide the pharmacy with a copy of To receive the
104 preliminary audit report within 120 days after the conclusion of
105 the audit.
106 (h) Allow the pharmacy to produce documentation to address
107 a discrepancy or audit finding within 10 business days after the
108 preliminary audit report is delivered to the pharmacy.
109 (i) Provide the pharmacy with a copy of To receive the
110 final audit report within 6 months after receipt of receiving
111 the preliminary audit report.
112 (j) Calculate any To have recoupment or penalties based on
113 actual overpayments and not according to the accounting practice
114 of extrapolation.
115 (2) The rights contained in This section does do not apply
116 to:
117 (a) Audits in which suspected fraudulent activity or other
118 intentional or willful misrepresentation is evidenced by a
119 physical review, review of claims data or statements, or other
120 investigative methods;
121 (b) Audits of claims paid for by federally funded programs;
122 or
123 (c) Concurrent reviews or desk audits that occur within 3
124 business days after of transmission of a claim and where no
125 chargeback or recoupment is demanded.
126 (3) An entity that audits a pharmacy located within a
127 Health Care Fraud Prevention and Enforcement Action Team (HEAT)
128 Task Force area designated by the United States Department of
129 Health and Human Services and the United States Department of
130 Justice may dispense with the notice requirements of paragraph
131 (1)(a) if such pharmacy has been a member of a credentialed
132 provider network for less than 12 months.
133 (4) Pursuant to s. 408.7057, and after receipt of the final
134 audit report issued by the health insurer or health maintenance
135 organization, a pharmacy may appeal the findings of the final
136 audit as to whether a claim payment is due and as to the amount
137 of a claim payment.
138 (5) A health insurer or health maintenance organization
139 that, under terms of a contract, transfers to a pharmacy benefit
140 manager the obligation to pay any pharmacy licensed under
141 chapter 465 for any pharmacy benefit claims arising from
142 services provided to or for the benefit of any insured or
143 subscriber remains responsible for any violations of this
144 section, s. 627.6131, or s. 641.3155, as applicable.
145 Section 3. Section 627.64741, Florida Statutes, is amended
146 to read:
147 627.64741 Pharmacy benefit manager contracts.—
148 (1) As used in this section, the term:
149 (a) “Maximum allowable cost” means the per-unit amount that
150 a pharmacy benefit manager reimburses a pharmacist for a
151 prescription drug:
152 1. As specified at the time of claim processing and
153 directly or indirectly reported on the initial remittance advice
154 of an adjudicated claim for a generic drug, brand name drug,
155 biological product, or specialty drug;
156 2. Which amount must be based on pricing published in the
157 Medi-Span Master Drug Database or, if the pharmacy benefit
158 manager uses only FDB MedKnowledge, on pricing published in FDB
159 MedKnowledge; and
160 3. ,Excluding dispensing fees, prior to the application of
161 copayments, coinsurance, and other cost-sharing charges, if any.
162 (b) “Pharmacy benefit manager” means a person or entity
163 doing business in this state which contracts to administer or
164 manage prescription drug benefits on behalf of a health insurer
165 to residents of this state.
166 (2) A health insurer may contract only with a pharmacy
167 benefit manager that satisfies all of the following conditions A
168 contract between a health insurer and a pharmacy benefit manager
169 must require that the pharmacy benefit manager:
170 (a) Updates Update maximum allowable cost pricing
171 information at least every 7 calendar days.
172 (b) Maintains Maintain a process that will, in a timely
173 manner, will eliminate drugs from maximum allowable cost lists
174 or modify drug prices to remain consistent with changes in
175 pricing data used in formulating maximum allowable cost prices
176 and product availability.
177 (c)(3) Does not limit A contract between a health insurer
178 and a pharmacy benefit manager must prohibit the pharmacy
179 benefit manager from limiting a pharmacist’s ability to disclose
180 whether the cost-sharing obligation exceeds the retail price for
181 a covered prescription drug, and the availability of a more
182 affordable alternative drug, pursuant to s. 465.0244.
183 (d)(4) Does not require A contract between a health insurer
184 and a pharmacy benefit manager must prohibit the pharmacy
185 benefit manager from requiring an insured to make a payment for
186 a prescription drug at the point of sale in an amount that
187 exceeds the lesser of:
188 1.(a) The applicable cost-sharing amount; or
189 2.(b) The retail price of the drug in the absence of
190 prescription drug coverage.
191 (3) The office may require a health insurer to submit to
192 the office any contract or amendments to a contract for the
193 administration or management of prescription drug benefits by a
194 pharmacy benefit manager on behalf of the insurer.
195 (4) After review of a contract submitted under subsection
196 (3), the office may order the insurer to cancel the contract in
197 accordance with the terms of the contract and applicable law if
198 the office determines that any of the following conditions
199 exists:
200 (a) The fees to be paid by the insurer are so unreasonably
201 high as compared with similar contracts entered into by
202 insurers, or as compared with similar contracts entered into by
203 other insurers in similar circumstances, that the contract is
204 detrimental to the policyholders of the insurer.
205 (b) The contract does not comply with this section or any
206 other provision of the Florida Insurance Code.
207 (c) The pharmacy benefit manager is not registered with the
208 office as required under s. 624.490.
209 (5) The commission may adopt rules to administer this
210 section.
211 (6)(5) This section applies to contracts entered into,
212 amended, or renewed on or after July 1, 2021 2018. All contracts
213 entered into or renewed between July 1, 2018, and June 30, 2021,
214 are governed by the law in effect at the time the contract was
215 entered into or renewed.
216 Section 4. Section 627.6572, Florida Statutes, is amended
217 to read:
218 627.6572 Pharmacy benefit manager contracts.—
219 (1) As used in this section, the term:
220 (a) “Maximum allowable cost” means the per-unit amount that
221 a pharmacy benefit manager reimburses a pharmacist for a
222 prescription drug:
223 1. As specified at the time of claim processing and
224 directly or indirectly reported on the initial remittance advice
225 of an adjudicated claim for a generic drug, brand name drug,
226 biological product, or specialty drug;
227 2. Which amount must be based on pricing published in the
228 Medi-Span Master Drug Database or, if the pharmacy benefit
229 manager uses only FDB MedKnowledge, on pricing published in FDB
230 MedKnowledge; and
231 3. ,Excluding dispensing fees, prior to the application of
232 copayments, coinsurance, and other cost-sharing charges, if any.
233 (b) “Pharmacy benefit manager” means a person or entity
234 doing business in this state which contracts to administer or
235 manage prescription drug benefits on behalf of a health insurer
236 to residents of this state.
237 (2) A health insurer may contract only with a pharmacy
238 benefit manager that satisfies all of the following conditions A
239 contract between a health insurer and a pharmacy benefit manager
240 must require that the pharmacy benefit manager:
241 (a) Updates Update maximum allowable cost pricing
242 information at least every 7 calendar days.
243 (b) Maintains Maintain a process that will, in a timely
244 manner, will eliminate drugs from maximum allowable cost lists
245 or modify drug prices to remain consistent with changes in
246 pricing data used in formulating maximum allowable cost prices
247 and product availability.
248 (c)(3) Does not limit A contract between a health insurer
249 and a pharmacy benefit manager must prohibit the pharmacy
250 benefit manager from limiting a pharmacist’s ability to disclose
251 whether the cost-sharing obligation exceeds the retail price for
252 a covered prescription drug, and the availability of a more
253 affordable alternative drug, pursuant to s. 465.0244.
254 (d)(4) Does not require A contract between a health insurer
255 and a pharmacy benefit manager must prohibit the pharmacy
256 benefit manager from requiring an insured to make a payment for
257 a prescription drug at the point of sale in an amount that
258 exceeds the lesser of:
259 1.(a) The applicable cost-sharing amount; or
260 2.(b) The retail price of the drug in the absence of
261 prescription drug coverage.
262 (3) The office may require a health insurer to submit to
263 the office any contract or amendments to a contract for the
264 administration or management of prescription drug benefits by a
265 pharmacy benefit manager on behalf of the insurer.
266 (4) After review of a contract submitted under subsection
267 (3), the office may order the insurer to cancel the contract in
268 accordance with the terms of the contract and applicable law if
269 the office determines that any of the following conditions
270 exists:
271 (a) The fees to be paid by the insurer are so unreasonably
272 high as compared with similar contracts entered into by
273 insurers, or as compared with similar contracts entered into by
274 other insurers in similar circumstances, that the contract is
275 detrimental to the policyholders of the insurer.
276 (b) The contract does not comply with this section or any
277 other provision of the Florida Insurance Code.
278 (c) The pharmacy benefit manager is not registered with the
279 office as required under s. 624.490.
280 (5) The commission may adopt rules to administer this
281 section.
282 (6)(5) This section applies to contracts entered into,
283 amended, or renewed on or after July 1, 2021 2018. All contracts
284 entered into or renewed between July 1, 2018, and June 30, 2021,
285 are governed by the law in effect at the time the contract was
286 entered into or renewed.
287 Section 5. Paragraph (h) is added to subsection (5) of
288 section 627.6699, Florida Statutes, to read:
289 627.6699 Employee Health Care Access Act.—
290 (5) AVAILABILITY OF COVERAGE.—