EXPLANATION-Matter enclosed in bold-faced brackets [thus] in this bill is not enacted
and is intended to be omitted in the law.
FIRST REGULAR SESSION
SENATE BILL NO. 512
103RD GENERAL ASSEMBLY
INTRODUCED BY SENATOR BERNSKOETTER.
1799S.01I KRISTINA MARTIN, Secretary
AN ACT
To repeal sections 338.015, 376.387, and 376.388, RSMo, and to enact in lieu thereof four new
sections relating to payments for prescription drugs.
Be it enacted by the General Assembly of the State of Missouri, as follows:
Section A. Sections 338.015, 376.387, and 376.388, RSMo, 1
are repealed and four new sections enacted in lieu thereof, to 2
be known as sections 338.015, 376.387, 376.388, and 376.448, to 3
read as follows:4
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 or pharmacy. [However, nothing in 4
sections 338.010 to 338.315 abrogates the patient's ability 5
to waive freedom of choice under any contract with regard to 6
payment or coverage of prescription expense. ] 7
2. All pharmacists may provide pharmaceuti cal 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. No pharmacy benefits manager, as defined in section 15
376.388, shall prohibit or redirect by contract, or 16
otherwise penalize or restrict, a covered person, as defined 17 SB 512 2
in section 376.387, from obtaining any of the following from 18
a contracted pharmacy, as defined in section 376.388: 19
(1) Prescription services, including all prescriptions 20
covered by the covered person's health benefit plan; 21
(2) Consultation; or 22
(3) Advice. 23
376.387. 1. For purposes of this section, the 1
following terms shall mean: 2
(1) "Covered person", [the same meaning as such term 3
is defined in section 376.1257 ] a policyholder, subscriber, 4
enrollee, or other individual whose prescription drug 5
coverage is administered through a pharmacy benefits manager 6
or a health benefit plan ; 7
(2) "Health benefit plan", the same meaning as such 8
term is defined in section 376.1350; 9
(3) "Health carrier" or "carri er", the same meaning as 10
such term is defined in section 376.1350; 11
(4) "Pharmacy", the same meaning as such term is 12
defined in chapter 338; 13
(5) "Pharmacy benefits manager", the same meaning as 14
such term is defined in section 376.388 ; 15
(6) "Pharmacy benefits manager rebate aggregator", any 16
entity that negotiates with a pharmaceutical manufacturer on 17
behalf of a pharmacy benefits manager for a rebate; 18
(7) "Pharmacy claims data", information regarding a 19
prescription transaction tha t is adjudicated by a pharmacy 20
benefits manager for a covered person between the pharmacy 21
and the pharmacy benefits manager and between the pharmacy 22
benefits manager and the health benefit plan sponsor; 23
(8) "Rebate", any discount, negotiated conce ssion, or 24
other payment provided by a pharmaceutical manufacturer, 25
pharmacy, or health benefit plan to an entity to sell, 26 SB 512 3
provide, pay, or reimburse a pharmacy or other entity in the 27
state for the dispensation, coverage, or administration of a 28
prescription drug on behalf of itself or another entity . 29
2. No pharmacy benefits manager shall [include a 30
provision in a contract entered into or modified on or after 31
August 28, 2018, with a pharmacy or pharmacist that 32
requires] require a covered person to make a payment for a 33
prescription drug at the point of sale in an amount that 34
exceeds the lesser of: 35
(1) The copayment amount as required under the health 36
benefit plan; [or] 37
(2) The amount an individual would pay for a 38
prescription if that individual paid with cash ; or 39
(3) The amount equal to the difference of the final 40
reimbursement amount paid to the contracted pharmacy, as 41
defined in section 376.388, by the pharmacy benefits manager 42
for the prescription drug minus any rebate p aid, and any 43
amount paid or owed by the health benefit plan, for the 44
prescription drug. 45
3. A pharmacy or pharmacist shall have the right to : 46
(1) Provide to a covered person information regarding 47
the amount of the covered person's cost share for a 48
prescription drug, the covered person's cost of an 49
alternative drug, and the covered person's cost of the drug 50
without adjudicating the claim through the pharmacy benefits 51
manager. Neither a pharmacy nor a pharmacist shall be 52
proscribed by a pharmacy benefits manager from discussing 53
any such information or from selling a more affordable 54
alternative to the covered person ; and 55
(2) Provide to a health benefit plan sponsor any 56
information, including pharmacy claims data, related to the 57 SB 512 4
sponsor's health benefit plan except to the extent 58
prohibited by law. 59
4. (1) A pharmacy benefits manager shall not directly 60
or indirectly, including indirectly through a pharmacy 61
services administrative organization, reduce the amount of 62
the claim at the time of the claim's adjudication or after 63
the claim is adjudicated. 64
(2) A pharmacy benefits manager shall not directly or 65
indirectly, including indirectly through a pharmacy services 66
administrative organization, charge a pharmacy a fee rel ated 67
to the adjudication of a claim, including any fee related to: 68
(a) The receipt and processing of a pharmacy claim; 69
(b) The development or management of a claim 70
processing or adjudication network; or 71
(c) Participation in a claim proc essing or claim 72
adjudication network. 73
5. No pharmacy benefits manager shall, directly or 74
indirectly, charge or hold a pharmacist or pharmacy 75
responsible for any fee amount related to a claim that is 76
not known at the time of the claim's adjudicati on, unless 77
the amount is a result of improperly paid claims [or charges 78
for administering a health benefit plan ]. 79
[5. This section shall not apply with respect to 80
claims under Medicare Part D, or any other plan administered 81
or regulated solely un der federal law, and to the extent 82
this section may be preempted under the Employee Retirement 83
Income Security Act of 1974 for self -funded employer- 84
sponsored health benefit plans. ] 85
6. A pharmacy benefits manager shall notify in writing 86
any health carrier with which it contracts if the pharmacy 87
benefits manager has a conflict of interest, any commonality 88
of ownership, or any other relationship, financial or 89 SB 512 5
otherwise, between the pharmacy benefits manager and any 90
other health carrier with which the pharmacy benefits 91
manager contracts. 92
7. Any pharmacy benefits manager that enters into a 93
contract to sell, provide, pay, or reimburse a pharmacy in 94
the state for prescription drugs on behalf of itself or 95
another entity shall define and apply the term "generic", 96
with respect to prescription drugs, to mean any "authorized 97
generic drug", as defined in 21 CFR 314.3, approved under 98
Section 505(c) of the Federal Food, Drug, and Cosmetic Act, 99
as amended. 100
8. An entity shall define and apply the term "rebate" 101
as having the same meaning given to the term in this section 102
if the entity enters into a contract to sell, provide, pay, 103
negotiate rebates for, or reimburse a pharmacy, pharmacy 104
benefits manager, pharmacy benefits manager affiliate a s 105
defined in section 376.388, or pharmacy benefits manager 106
rebate aggregator for prescription drugs on behalf of itself 107
or another entity. 108
9. A pharmacy benefits manager that has contracted 109
with an entity to provide pharmacy benefits management 110
services for such an entity or any person who negotiates 111
with a pharmacy benefits manager on behalf of a purchaser of 112
health care benefits shall owe a fiduciary duty to that 113
entity or purchaser of health care benefits and shall 114
discharge that duty in a ccordance with federal and state law. 115
10. A pharmacy benefits manager shall have a duty to 116
disclose to a health benefit plan sponsor. As used in this 117
subsection, "duty to disclose" shall mean notifying the 118
health benefit plan sponsor of material facts and actions 119
taken by a pharmacy benefits manager related to the 120 SB 512 6
administration of the pharmacy benefits on behalf of the 121
health benefit plan sponsor that: 122
(1) May increase costs to the sponsor or its covered 123
persons as compared to a more pr udent action that could be 124
taken; or 125
(2) Present a conflict of interest between the 126
interests of the sponsor and its covered persons and the 127
interests of the pharmacy benefits manager. 128
11. Any entity that enters into a contract to sell, 129
provide, pay, or reimburse a pharmacy in the state for 130
prescription drugs on behalf of itself or another entity 131
shall not prohibit a health benefit plan sponsor and a 132
participating pharmacy from discussing any health benefit 133
plan information, including ph armacy claims data or costs. 134
12. It shall be unlawful for any pharmacy benefits 135
manager or any person acting on its behalf to charge a 136
health benefit plan or payer a different amount for a 137
prescription drug's ingredient cost or dispensing fee than 138
the amount the pharmacy benefits manager reimburses a 139
pharmacy for the prescription drug's ingredient cost or 140
dispensing fee if the pharmacy benefits manager retains any 141
amount of any such difference. 142
13. The department of commerce and insurance shall 143
enforce this section. 144
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 i n 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 SB 512 7
or offers to contract to provide, deliver, arrange for , pay 9
for, or reimburse any of the costs of health care services, 10
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 liabilit y 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; 22
[(4)] (3) "Maximum allowable cost list" or "MAC list", 23
a listing of drug products that meet the standard described 24
in this section; 25
[(5)] (4) "Pharmacy", as such term is defined in 26
chapter 338; 27
[(6)] (5) "Pharmacy benefits manager", an entity that 28
contracts with pharmacies on behalf of health carriers [or 29
any health plan sponsored by the state or a political 30
subdivision of the state ] or health benefit plans to provide 31
prescription drug and pharmacist services; 32
(6) "Pharmacy benefits manager affiliate", a pharmacy 33
or pharmacist that di rectly or indirectly, through one or 34
more intermediaries, owns or controls, is owned or 35
controlled by, or is under common ownership or control with 36
a pharmacy benefits manager . 37
2. Upon each contract execution or renewal between a 38
pharmacy benefits manager and a pharmacy or between a 39
pharmacy benefits manager and a pharmacy's contracting 40 SB 512 8
representative or agent, such as a pharmacy services 41
administrative organization, a pharmacy benefits manager 42
shall, with respect to such contract or renewal: 43
(1) Include in such contract or renewal the sources 44
utilized to determine maximum allowable cost and update such 45
pricing information at least every seven days; and 46
(2) Maintain a procedure to eliminate products from 47
the maximum allowable cos t list of drugs subject to such 48
pricing or modify maximum allowable cost pricing at least 49
every seven days, if such drugs do not meet the standards 50
and requirements of this section, in order to remain 51
consistent with pricing changes in the marketplace. 52
3. A pharmacy benefits manager shall reimburse 53
pharmacies for drugs subject to maximum allowable cost 54
pricing that has been updated to reflect market pricing at 55
least every seven days as set forth under subdivision (1) of 56
subsection 2 of this se ction. 57
4. A pharmacy benefits manager shall not place a drug 58
on a maximum allowable cost list unless there are at least 59
two therapeutically equivalent multisource generic drugs, or 60
at least one generic drug available from at least one 61
manufacturer, generally available for purchase by network 62
pharmacies from national or regional wholesalers. 63
5. (1) All contracts between a pharmacy benefits 64
manager and a contracted pharmacy or between a pharmacy 65
benefits manager and a pharmacy's contractin g representative 66
or agent, such as a pharmacy services administrative 67
organization, shall include a process to internally appeal, 68
investigate, and resolve disputes regarding maximum 69
allowable cost pricing. The process shall include the 70
following: 71 SB 512 9
[(1)] (a) The right to appeal shall be limited to 72
fourteen calendar days following the reimbursement of the 73
initial claim; and 74
[(2)] (b) A requirement that the pharmacy benefits 75
manager shall respond to an appeal described in this 76
subsection no later than fourteen calendar days after the 77
date the appeal was received by such pharmacy benefits 78
manager. 79
(2) If a reimbursement to a contracted pharmacy is 80
below the pharmacy's cost to purchase the drug, the pharmacy 81
may decline to dispense the prescription. A pharmacy 82
benefits manager shall not prohibit a pharmacy from 83
declining to dispense a drug for such reason or otherwise 84
retaliate against a pharmacy for doing so. 85
(3) A pharmacy benefits manager shall not: 86
(a) Pay or reimburse a pharmacy or pharmacist in the 87
state an amount less than the amount that the pharmacy 88
benefits manager reimburses a pharmacy benefits manager 89
affiliate for providing the same products and pharmacist 90
services, which amount shall be calculated on a per-unit 91
basis using the same generic product identifier or generic 92
code number; 93
(b) Pay or reimburse a pharmacy or pharmacist in the 94
state for the ingredient drug product component of 95
pharmacist services less than the national average drug 96
acquisition cost or, if the national average drug 97
acquisition cost is unavailable, the wholesale acquisition 98
cost; 99
(c) Make or permit any reduction of payment for 100
pharmacist services by a pharmacy benefits manager or a 101
health care payer directly or indirectly to a pharmacy under 102
a reconciliation process to an effective rate of 103 SB 512 10
reimbursement including, but not limited to, generic 104
effective rates, brand effective rates, direct and indirect 105
remuneration fees, or any other reduction or aggregate 106
reduction of payment; or 107
(d) Remove from any pharmacy its legal right to civil 108
recourse including, but not limited to, requiring a pharmacy 109
to use arbitration to settle grievances. 110
6. For appeals that are denied, the pharmacy benefits 111
manager shall provide the reason for the denial and identify 112
the national drug code of a drug product that may be 113
purchased by contracted pharmacies at a price at or below 114
the maximum allowable cost and, when applicable, may be 115
substituted lawfully. 116
7. If the appeal is successful, the pharmacy benefits 117
manager shall: 118
(1) Adjust the maximum allowable cost price that is 119
the subject of the appeal effective on the day after the 120
date the appeal is decided; 121
(2) Apply the adjusted maximum allowabl e cost price to 122
all similarly situated pharmacies as determined by the 123
pharmacy benefits manager; and 124
(3) Allow the pharmacy that succeeded in the appeal to 125
reverse and rebill the pharmacy benefits claim giving rise 126
to the appeal. 127
8. Appeals shall be upheld if: 128
(1) The pharmacy being reimbursed for the drug subject 129
to the maximum allowable cost pricing in question was not 130
reimbursed as required under subsection 3 of this section; or 131
(2) The drug subject to the maximum allowable cost 132
pricing in question does not meet the requirements set forth 133
under subsection 4 of this section. 134 SB 512 11
376.448. 1. As used in this section, the following 1
terms mean: 2
(1) "Cost-sharing", any co-payment, coinsurance, 3
deductible, amount paid by an enrollee for health care 4
services in excess of a coverage limitation, or similar 5
charge required by or on behalf of an enrollee in order to 6
receive a specific health care service covered by a health 7
benefit plan, whether covered und er medical benefits or 8
pharmacy benefits. The term "cost-sharing" shall include 9
cost-sharing as defined in 42 U.S.C. Section 18022(c); 10
(2) "Enrollee", the same meaning given to the term in 11
section 376.1350; 12
(3) "Health benefit plan", the sa me meaning given to 13
the term in section 376.1350; 14
(4) "Health care service", the same meaning given to 15
the term in section 376.1350; 16
(5) "Health carrier", the same meaning given to the 17
term in section 376.1350; 18
(6) "Pharmacy benefits m anager", the same meaning 19
given to the term in section 376.388. 20
2. When calculating an enrollee's overall contribution 21
to any out-of-pocket maximum or any cost -sharing requirement 22
under a health benefit plan, a health carrier or pharmacy 23
benefits manager shall include any amounts paid by the 24
enrollee or paid on behalf of the enrollee for any 25
medication where a generic substitute for such medication is 26
not available. 27
3. A health carrier or pharmacy benefits manager shall 28
not vary an enrollee's out-of-pocket maximum or any cost - 29
sharing requirement based on, or otherwise design benefits 30
in a manner that takes into account, the availability of any 31 SB 512 12
cost-sharing assistance program for any medication where a 32
generic substitute for such medic ation is not available. 33
4. If, under federal law, application of the 34
requirement under subsection 2 of this section would result 35
in health savings account ineligibility under Section 223 of 36
the Internal Revenue Code of 1986, as amended, the 37
requirement under subsection 2 of this section shall apply 38
to health savings account -qualified high deductible health 39
plans with respect to any cost -sharing of such a plan after 40
the enrollee has satisfied the minimum deductible under 41
Section 223, except wit h respect to items or services that 42
are preventive care under Section 223(c)(2)(C) of the 43
Internal Revenue Code of 1986, as amended, in which case the 44
requirement of subsection 2 of this section shall apply 45
regardless of whether the minimum deductible under Section 46
223 has been satisfied. 47
5. Nothing in this section shall prohibit a health 48
carrier or health benefit plan from utilizing step therapy 49
in accordance with section 376.2034. 50
6. The provisions of this section shall not apply to 51
health benefit plans that are covered under the Labor 52
Management Relations Act of 1947, 29 U.S.C. Section 141, et 53
seq., as amended. 54