2022 22LSO-0147
STATE OF WYOMING
SENATE FILE NO. SF0036
Pharmacy benefit managers act enhancements.
Sponsored by: Joint Labor, Health & Social Services Interim Committee
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; clarifying application of the
10 Health Care Reimbursement Reform Act of 1985 to pharmacy
11 benefit managers; providing definitions; making conforming
12 amendments; repealing unnecessary definitions; requiring
13 rulemaking; amending rulemaking authority; authorizing
14 personnel; providing appropriations; and providing for
15 effective dates.
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1
2 Be It Enacted by the Legislature of the State of Wyoming:
3
4 Section 1. W.S. 26-52-105 through 26-52-109 are
5 created to read:
6
7 26-52-105. Pharmacy benefit manager audit appeals
8 report.
9
10 (a) Each pharmacy benefit manager shall track,
11 monitor and report, and submit to the commissioner within
12 thirty (30) days of the close of each calendar quarter, the
13 following information related to the drug reimbursement
14 appeals process mandated under W.S. 26-52-104:
15
16 (i) The total number of appeals filed by
17 contracted pharmacies or their designees and the number of
18 appeals that were denied or upheld by the pharmacy benefit
19 manager;
20
21 (ii) For each appeal that the pharmacy benefit
22 manager denied, the reasons for the denial and proof that
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1 the pharmacy benefit manager complied with the requirements
2 imposed by W.S. 26-52-104(f); and
3
4 (iii) For each appeal that the pharmacy benefit
5 manager upheld, the total amount of any cost adjustment
6 made by the pharmacy benefit manager and the number of days
7 taken to make the cost adjustment.
8
9 (b) In addition to the reporting requirement under
10 subsection (a) of this section, upon the request of the
11 commissioner, a pharmacy benefit manager shall provide any
12 of the information required under this section if the
13 commissioner believes the information is reasonably
14 necessary to ensure compliance with this chapter and the
15 Health Care Reimbursement Reform Act of 1985.
16
17 26-52-106. Retroactive claim denials or reductions
18 prohibited; reimbursement restrictions; prohibited fees.
19
20 (a) A pharmacy benefit manager shall not directly or
21 indirectly retroactively deny or reduce a claim or
22 aggregate of claims for drug reimbursement by a pharmacy or
23 the pharmacy's designee after the claim or aggregate of
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1 claims have been finally adjudicated unless the original
2 claim was submitted fraudulently or erroneously.
3
4 (b) A pharmacy benefit manager shall not charge a
5 pharmacy or the pharmacy's designee any fee related to the
6 adjudication of a drug reimbursement claim, including any
7 fee for:
8
9 (i) The receipt or processing of a pharmacy
10 claim;
11
12 (ii) The development or management of a claim
13 processing or adjudication network; or
14
15 (iii) Participating in a claim processing or
16 claim adjudication network.
17
18 (c) A pharmacy benefit manager shall not engage in
19 any practice that:
20
21 (i) In any way bases pharmacy reimbursement for
22 a drug on patient outcomes, scores or metrics.
23 Notwithstanding this prohibition, a pharmacy benefit
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1 manager may base pharmacy reimbursement for pharmacy care,
2 including dispensing fees, on patient outcomes, scores or
3 metrics if the patient outcomes, scores or metrics are
4 disclosed to and agreed upon by the pharmacy or the
5 pharmacy's designee in advance;
6
7 (ii) Imposes upon a pharmacy or the pharmacy
8 designee a point of sale fee or retroactive fee; or
9
10 (iii) Derives any revenue from a pharmacy or the
11 pharmacy's designee or covered individual in connection
12 with performing pharmacy benefit management services. This
13 paragraph shall not be construed to prohibit any pharmacy
14 benefit manager from receiving deductibles or copayments.
15
16 25-52-107. Pharmacy reimbursement transparency.
17
18 No pharmacy benefit manager shall reimburse a pharmacy or
19 the pharmacy's designee for a pharmacist service in an
20 amount less than the national average drug acquisition cost
21 for the pharmacist service at the time the drug is
22 administered or dispensed. If the national average drug
23 acquisition cost is not available at the time a drug is
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1 administered or dispensed, a pharmacy benefit manager shall
2 not reimburse in an amount that is less than the wholesale
3 acquisition cost of the drug, as defined by 42 U.S.C. §
4 1395w-3a(c)(6)(B).
5
6 26-52-108. Network participation requirements.
7
8 No pharmacy benefit manager or third-party payer shall
9 impose pharmacy accreditation standards or recertification
10 requirements on a pharmacy or the pharmacy's designee as a
11 condition for participating in a network that are
12 inconsistent with, more stringent than or in addition to
13 applicable federal and state requirements for licensure in
14 this state.
15
16 25-52-109. Prohibited activities; contractual
17 changes; retaliation.
18
19 (a) No pharmacy benefit manager shall amend or
20 otherwise change the terms of an existing contract between
21 the pharmacy benefit manager and a pharmacy or the
22 pharmacy's designee unless:
23
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1 (i) The change is disclosed by the pharmacy
2 benefit manager to the pharmacy or the pharmacy's designee
3 at least forty-five (45) days before the effective date of
4 the change in the contract and the change is agreed upon in
5 writing by the pharmacy or the pharmacy's designee; or
6
7 (ii) The change is required to be made under
8 state or federal law or by a governmental regulatory
9 authority. If the change is required by law or regulatory
10 authority, the pharmacy benefit manager shall provide the
11 pharmacy or the pharmacy's designee with a citation to the
12 specific statute, order or regulation requiring the change.
13
14 (b) No pharmacy benefit manager shall retaliate in
15 any way against a pharmacy or the pharmacy's designee based
16 on the pharmacy's exercise of any right or remedy under
17 this chapter. Prohibited retaliation includes:
18
19 (i) Terminating or refusing to renew a contract
20 with the pharmacy or the pharmacy's designee;
21
22 (ii) Subjecting the pharmacy or the pharmacy's
23 designee to increased audits. An increase in audits shall
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1 include increases to the number of audits performed in a
2 calendar year or exponentially increasing the number of
3 prescriptions included as part of a single audit; or
4
5 (iii) Failing to promptly pay the pharmacy or
6 the pharmacy's designee any money owed by the pharmacy
7 benefit manager to the pharmacy.
8
9 (c) For purposes of this section, a pharmacy benefit
10 manager is not considered to have retaliated against a
11 pharmacy or the pharmacy's designee if the pharmacy benefit
12 manager:
13
14 (i) Takes an action in response to a credible
15 allegation of fraud against the pharmacy or the pharmacy's
16 designee; and
17
18 (ii) Provides reasonable notice to the pharmacy
19 or the pharmacy's designee of the allegation of fraud and
20 the basis of the allegation before taking the action.
21
22 (d) Any covered individual, pharmacy or pharmacy
23 designee injured by a violation of this section may bring a
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1 cause of action in a court of competent jurisdiction to
2 enjoin the continuation of the violation.
3
4 (e) The commissioner may examine or audit the books
5 and records of any pharmacy benefit manager to determine if
6 the pharmacy benefit manager is in compliance with this
7 section. Any information or data acquired during the
8 examination or audit is not a public record and is not
9 subject to the Public Records Act, W.S. 16-4-201 through
10 16-4-205.
11
12 Section 2. W.S. 9-3-205 by creating a new subsection
13 (f), 26-22-502(a)(iv), 26-22-503(c), 26-52-101,
14 26-52-102(a) by creating new paragraphs (viii) through (x),
15 26-52-103(a)(iii), (b)(vii), (ix) and by creating a new
16 paragraph (xii) and 26-52-104(d)(iv), (v), by creating a
17 new paragraph (vi) and by creating new subsections (k) and
18 (m) are amended to read:
19
20 9-3-205. Administration and management of group
21 insurance program; powers and duties; adoption of rules and
22 regulations; interfund borrowing authority.
23
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1 (f) Any contract governing a group insurance plan
2 that involves the services of a pharmacy benefit manager or
3 a claims administrator and that makes the pharmacy benefit
4 manager or claims administrator responsible for
5 administering or managing covered prescription drugs
6 dispensed to enrolled employees, officials and their
7 dependents shall require that payment for the drugs and
8 applicable administrative services be based on a
9 pass-through pricing model under which:
10
11 (i) Any payment made for a covered prescription
12 drug to a pharmacy benefit manager or a claims
13 administrator:
14
15 (A) Is limited to ingredient costs and a
16 professional dispensing fee in an amount not less than that
17 which would be paid under the group insurance plan if the
18 fee was being paid directly under the plan and without the
19 services of the pharmacy benefit manager or claims
20 administrator; and
21
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1 (B) Is passed through in its entirety to
2 the pharmacy or the pharmacy designee that dispensed the
3 drug.
4
5 (ii) Any payment for administrative services is
6 limited to a reasonable fee that covers the cost of
7 providing the administrative services;
8
9 (iii) Any form of spread pricing, whereby any
10 amount charged or claimed by the pharmacy benefit manager
11 or claims administrator is in excess of the amount paid to
12 the pharmacy or the pharmacy's designee on behalf of the
13 state, including any post-sale or post-invoice fees,
14 discounts or related adjustments, direct and indirect
15 remuneration fees or assessments, after allowing for a
16 reasonable administrative services fee as provided in
17 paragraph (ii) of this subsection, is prohibited.
18
19 26-22-502. Definitions.
20
21 (a) As used in this article:
22
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1 (iv) "Insurer" means an insurance company or a
2 health service corporation authorized in this state to
3 issue policies or subscriber contracts which reimburse for
4 expenses of health care services. "Insurer" includes any
5 contracted agent or benefit manager of an insurance company
6 or health service corporation that administers or manages
7 prescription drug benefits in accordance with W.S.
8 26-52-101 through 26-52-109;
9
10 26-22-503. Policies with incentives or limits on
11 reimbursement authorized; conditions.
12
13 (c) Any group may contract with an insurer, preferred
14 provider organization or health maintenance organization
15 for provision of medical health care services outside of
16 Wyoming for the insureds of that group, provided the
17 insureds are not restricted from utilizing any Wyoming
18 provider who provides the same health care services.
19
20 26-52-101. Licensure of pharmacy benefit managers;
21 waiver prohibited.
22
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1 (a) No person shall act or hold himself out as a
2 pharmacy benefit manager in this state unless he obtains a
3 license from the department commissioner. The department
4 commissioner shall through adopt rules as necessary to
5 carry out this chapter, including rules that establish
6 license requirements and procedures for the licensing of
7 pharmacy benefit managers consistent with this article. The
8 requirements shall only provide for the adequate
9 identification of licensees and the payment of the required
10 licensing fee chapter.
11
12 (b) The provisions of this chapter may not be waived,
13 voided or nullified by contract or any other type of
14 agreement.
15
16 26-52-102. Definitions.
17
18 (a) As used in this article:
19
20 (viii) "Health benefit plan" means a policy,
21 contract, certificate or agreement entered into, offered or
22 issued by a health insurance carrier or disability insurer
23 to provide, deliver, arrange for, pay for or reimburse any
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1 of the costs of health care services. Health benefit plan
2 does not include Medicare, Medicaid or other health benefit
3 programs or coverages operated or maintained by the federal
4 government;
5
6 (ix) "Maximum allowable cost list" means a
7 listing of drugs or other methodology used by a pharmacy
8 benefit manager, directly or indirectly, that establishes
9 the maximum allowable reimbursement to a pharmacy or the
10 pharmacy's designee for a generic drug. "Maximum allowable
11 cost list" includes:
12
13 (A) Average acquisition cost, including
14 national average drug acquisition cost;
15
16 (B) Wholesale acquisition cost;
17
18 (C) Average manufacturer price;
19
20 (D) Average wholesale price;
21
22 (E) Generic effective rate;
23
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1 (F) Discount indexing;
2
3 (G) Federal upper limits; and
4
5 (H) Any other factor that a pharmacy
6 benefit manager or a health care insurer may use to
7 establish reimbursement rates to a pharmacy or the pharmacy
8 designee for pharmacist services.
9
10 (x) "Pharmacist services" means any product,
11