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SENATE BILL 503
57
TH LEGISLATURE
-
STATE
OF
NEW
MEXICO
-
FIRST SESSION
,
2025
INTRODUCED BY
Larry R. Scott
AN ACT
RELATING TO PHARMACIES; PROHIBITING CERTAIN PHARMACY BENEFITS
MANAGER PRACTICES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 59A-61-2 NMSA 1978 (being Laws 2014,
Chapter 14, Section 2, as amended) is amended to read:
"59A-61-2. DEFINITIONS.--As used in the Pharmacy Benefits
Manager Regulation Act:
A. "maximum allowable cost" means the maximum
amount that a pharmacy benefits manager will reimburse a
pharmacy for the cost of a generic drug;
B. "maximum allowable cost list" means a
searchable, electronic and internet-based listing of drugs used
by a pharmacy benefits manager setting the maximum allowable
cost on which reimbursement to a pharmacy or pharmacist is
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made;
C. "obsolete" means a product that is listed in
national drug pricing compendia but is no longer available to
be dispensed based on the expiration date of the last lot
manufactured;
D. "patient steering" means:
(1) a pharmacy benefits manager directing
patients to use a preferred pharmacy through mandatory mail
order requirements;
(2) a pharmacy benefits manager requiring a
patient to use a restricted network of pharmacies that only
consists of pharmacies approved by the pharmacy benefits
manager; or
(3) the use of copay differentials for
pharmacies contracted with the pharmacy benefits manager and
pharmacies that are not contracted with the pharmacy benefits
manager;
[D.] E. "pharmacist" means an individual licensed
as a pharmacist by the board of pharmacy;
[E.] F. "pharmacy" means a licensed place of
business where drugs are compounded or dispensed and pharmacist
services are provided;
[F.] G. "pharmacy benefits management" means a
service provided to or conducted by a health plan as defined in
Section 59A-16-21.1 NMSA 1978 or health insurer that involves:
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(1) prescription drug claim administration;
(2) pharmacy network management;
(3) negotiation and administration of
prescription drug discounts, rebates and other benefits;
(4) design, administration or management of
prescription drug benefits;
(5) formulary management;
(6) payment of claims to pharmacies for
dispensing prescription drugs;
(7) negotiation or administration of contracts
relating to pharmacy operations or prescription benefits; or
(8) any other service determined by the
superintendent as specified by rule to be a pharmacy benefits
management activity;
[G.] H. "pharmacy benefits manager" means an entity
that provides pharmacy benefits management services;
[H.] I. "pharmacy benefits manager affiliate" means
a pharmacy or pharmacist that directly or indirectly, through
one or more intermediaries, owns or controls, is owned or
controlled by or is under common ownership or control with a
pharmacy benefits manager;
[I.] J. "pharmacy services administrative
organization" means an entity that contracts with a pharmacy or
pharmacist to act as the pharmacy or pharmacist's agent with
respect to matters involving a pharmacy benefits manager or
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third-party payor, including negotiating, executing or
administering contracts with the pharmacy benefits manager or
third-party payor; [and ]
K. "spread pricing" means a pharmacy benefits
manager reimbursing a pharmacy for a prescription and billing
an insurer or an employer that provides health insurance at a
higher price than was reimbursed for the same prescription; and
[J.] L. "superintendent" means the superintendent
of insurance."
SECTION 2. Section 59A-61-5 NMSA 1978 (being Laws 2014,
Chapter 14, Section 5, as amended) is amended to read:
"59A-61-5. PHARMACY BENEFITS MANAGER CONTRACTS--CERTAIN
PRACTICES PROHIBITED--CERTAIN DISCLOSURES REQUIRED UPON
REQUEST.--
A. A pharmacy benefits manager shall not require
that a pharmacy participate in one contract in order to
participate in another contract.
B. A pharmacy benefits manager shall provide to a
pharmacy by electronic mail, facsimile or certified mail, at
least thirty calendar days prior to its execution, a contract
written in plain English.
C. A contract between a pharmacy benefits manager
and a pharmacy shall identify the industry standard
reimbursement practice that the pharmacy benefits manager will
use to determine a reimbursement amount, unless the contract is
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modified in writing to specify another industry standard
practice.
D. The provisions of the Pharmacy Benefits Manager
Regulation Act shall not be waived, voided or nullified by
contract.
E. A pharmacy benefits manager shall not:
(1) cause or knowingly permit the use of any
advertisement, promotion, solicitation, representation,
proposal or offer that is untrue, deceptive or misleading;
(2) require pharmacy validation and
revalidation standards inconsistent with, more stringent than
or in addition to federal and state requirements for licensure
and operation as a pharmacy in this state;
(3) prohibit a pharmacy or pharmacist from:
(a) mailing or delivering drugs to a
patient as an ancillary service;
(b) providing a patient information
regarding the patient's total cost for pharmacist services for
a prescription drug; or
(c) discussing information regarding the
total cost for pharmacist services for a prescription drug or
from selling a more affordable alternative to the insured if a
more affordable alternative is available;
(4) require or prefer a generic drug over its
generic therapeutic equivalent;
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(5) prohibit, restrict or limit disclosure of
information by a pharmacist or pharmacy to the superintendent;
[or]
(6) prohibit, restrict or limit pharmacies or
pharmacists from providing to state or federal government
officials general information for public policy purposes;
(7) conduct or participate in patient
steering; or
(8) conduct or participate in spread pricing .
F. A pharmacy benefits manager or health benefit
plan shall not impose a fee on a pharmacy for scores or metrics
or both scores and metrics. Nothing in this subsection
prohibits a pharmacy benefits manager or health benefit plan
from offering incentives to a pharmacy based on a score or
metric; provided that the incentive is equally available to all
in-network pharmacies.
G. A clerical or recordkeeping error identified
during an audit of a pharmacy conducted by a pharmacy benefits
manager, such as a typographical error, scrivener's error,
omission or computer error, shall not, in and of itself,
constitute fraud or intentional misrepresentation and shall not
be the basis of a recoupment unless the error results in an
actual overpayment to the pharmacy or the wrong medication
being dispensed to the patient.
[G.] H. Within seven business days of a request by
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the superintendent or a contracted pharmacy or pharmacist, a
pharmacy benefits manager or pharmacy services administrative
organization shall provide as appropriate:
(1) a contract;
(2) an agreement;
(3) a claim appeal document;
(4) a disputed claim transaction document or
price list; or
(5) any other information specified by law.
[H.] I. In a time and manner required by rules
promulgated by the superintendent, a pharmacy benefits manager
shall issue to the superintendent a network adequacy report
describing the pharmacy benefits manager network and the
pharmacy benefits manager network's accessibility to insureds
statewide.
[I.] J. Pursuant to the provisions of Section
59A-4-3 NMSA 1978, the superintendent, or the superintendent's
designee, may examine the books, documents, policies,
procedures and records of a pharmacy benefits manager to
determine compliance with applicable law. The pharmacy
benefits manager shall pay the costs of the examination. At
the request of a person who provides information in response to
a complaint, investigation or examination, the superintendent
may deem the information confidential."
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