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ENGROSSED SENATE AMENDMENT
TO
ENGROSSED HOUSE
BILL NO. 2123 By: McEntire, Townley, Frix,
Grego, Newton, Moore, Pae,
Boles, Johns, Phillips,
Lawson, Burns, Hilbert,
Sterling, Roe and Caldwell
(Chad) of the House
and
McCortney, Stephens, Hicks
and Taylor of the Senate
An Act relating to insurance; defining term; amending
36 O.S. 2011, Section 121, which relates to
computation of time; including the Pharmacy Choice
Commission; ***Pharmacy Choice Commission with
certain duties and authorities; author izing the
Insurance Commissioner to employ certain persons;
providing for certain expenses to be charged to
certain entities; requiring filing and keeping of a
certain affidavit; *** confidentiality and privileged
information; including the Pharmacy Choice
Commission; providing for codification; and declaring
an emergency.
AMENDMENT NO. 1. Page 1, strike the title, enacting clause and
entire bill and insert
“An Act relating to insurance; clarifying reference;
amending 36 O.S. 2011, Section 121, which r elates to
computation of time; clarifying reference; amending
36 O.S. 2011, Section 307, as amended by Section 1,
Chapter 362, O.S.L. 2017 (36 O.S. Supp. 2020, Section
307), which relates to the duties of the Insurance
Commissioner; creating exceptions; re quiring
Commissioner report certain information to Pharmacy
Choice Commission; amending 36 O.S. 2011, Section
312A, as amended by Section 2, Chapter 298, O.S.L.
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2015 (36 O.S. Supp. 2020, Section 312A), which
relates to enforcement and recording of penaltie s and
fees; providing for enforcement of certain actions by
the Pharmacy Choice Commission; modifying penalties
Commissioner and Pharmacy Choice Commission may
impose; amending 36 O.S. 2011, Section 313, which
relates to orders and notices; specifying
requirements for Pharmacy Choice Commission orders
and notices; requiring the Pharmacy Choice Commission
to comply with certain requirements; amending 36 O.S.
2011, Section 319, which relates to hearings;
requiring Pharmacy Choice Commission to conduct
certain hearings; requiring final order be issued in
certain time period; specifying that Commission
members not receive compensation; amending 36 O.S.
2011, Section 332, which relates to general duties
and powers; vesting the Pharmacy Choice Commission
with certain duties and powers created by Insurance
Commissioner; providing for certain expenses to be
charged to certain entities; amending 36 O.S. 2011,
Section 907, which relates to the general powers of
the Insurance Commissioner; adding PBMs to entities
Insurance Commissioner may examine; amending Section
8, Chapter 426, O.S.L. 2019 (36 O.S. Supp. 2020,
Section 6965), which relates to the power to
investigate; authorizing Commissioner to examine PBMs
in certain circumstances; modifying time for certain
response; amending Section 9, Chapter 426, O.S.L.
2019 (36 O.S. Supp. 2020, Section 6966), which
relates to complaints of certain violations; creating
the Patient's Right to Pharmacy Choice Commission;
adding complaints Commissioner may hear; adding to
Commissioner’s powers for violation of certain acts;
authorizing Pharmacy Choice Commission to hold
hearings in certain circumstances; authorizing
Commission to impose certain disciplinary action to
certain persons; modifying appointments of initial
members; providing for election of chair and vice -
chair; establishing terms for certain hearings;
modifying persons who may request a full record of
proceedings be made; allowing certain parties to
intervene in certain hearings; adding Pharmacy Choice
Commission as entity to hold certain hearings and
require certain reporting; amending Section 10,
Chapter 426, O.S.L. 2019 (36 O.S. Supp. 2020, Section
6967), which relates to confidentiality and
privileged information; modifying information deemed
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confidential in certain circ umstances; adding
Pharmacy Choice Commission as entity for certain
disclosures and confidentiality; construing
provision; providing for codification; and declaring
an emergency.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 107.3 of Title 36, unless there
is created a duplication in numbering, reads as follows:
When used with reference to the administration of the Oklahoma
Insurance Code, “Pharmacy Choice Commission” means the Patient’s
Right to Pharmacy Choice Commission established by Section 10 of
this act.
SECTION 2. AMENDATORY 36 O.S. 2011, Section 121, is
amended to read as follows:
Section 121. In com puting any period of time prescribed or
allowed by this title, by the rules of the Insurance Commissioner,
or by any applicable statute, the day of the act, event , or default
from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included,
unless it is a Saturday, a Sunday, a legal holiday as defined by the
Oklahoma Statutes, or any day when the office of the Commissioner
does not remain open for public business until 4:00 p.m., in whic h
event the period runs until the end of the next day when the office
of the Commissioner is open until 4:00 p.m. When the period of time
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prescribed or allowed is less than seven (7) days, intermediate
Saturdays, Sundays and legal holidays shall be exclud ed in the
computation.
SECTION 3. AMENDATORY 36 O.S. 2011, Section 307, as
amended by Section 1, Chapter 362, O.S.L. 2017 (36 O.S. Supp. 2020,
Section 307), is amended to read as follows:
Section 307. The Insurance Commissioner s hall be charged with
the duty of administration and enforcement of the provisions of the
Oklahoma Insurance Code and, of any requirements placed on an
insurance company pursuant to the Oklahoma Statutes and determining
the duties assigned to the Patient’s Right to Pharmacy Choice
Commission. The Commissioner shall have jurisdiction over
complaints against all persons engaged in the business of insurance,
and shall hear all matters either in person, by authorized
disinterested employees , or by hearing examiners appointed by the
Commissioner for that purpose and not specifically addressed
otherwise in this act . It shall be the duty of the Commissioner to
file and safely keep all books and papers required by law to be
filed with the Insurance Department, and to keep and preserve in
permanent form a full record of proceedings , including a concise
statement of the conditions of such insurers and other entities
reported and examined by the Department and its examiners. The
Commissioner shall, annually, at the ea rliest practicable date after
returns are received from the several authorized insurers and other
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organizations, make a report to the Governor of the State of
Oklahoma of the affairs of the Office office of the Commissioner,
which report shall contain a ta bular statement and synopsis of the
several statements, as accepted by the Commissioner, which shall
include with respect to each insurance company the admitted assets,
liabilities except capital, capital and surplus, Oklahoma premium
income, amount of cla ims paid in Oklahoma , and such other matters as
may be of benefit to the public. The Commissioner shall, on a
quarterly basis, report to the Pharmacy Choice Commission an
accounting of matters relating to pharmacy benefit managers
including, but not limit ed to, the number and types of complaints:
1. Received;
2. Resolved by hearing;
3. Resolved by settlement;
4. Determined not to be violations; and
5. That are outstanding.
The Commissioner may educate consumers and make recommendations
regarding the subject of insurance in this state, and shall set
forth in a statement the various sums received and disbursed by the
Department, from and to whom and for what purpose. Such report
shall be published by and subject to the order of the Commissioner.
The Commissioner shall, upon retiring from office, deliver to the
qualified successor all furniture, records, papers and property of
the office.
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SECTION 4. AMENDATORY 36 O.S. 2011, Section 312A, as
amended by Section 2, Chapter 298, O.S .L. 2015 (36 O.S. Supp. 2020,
Section 312A), is amended to read as follows:
Section 312A. Civil penalties and fees imposed by the Insurance
Commissioner or the Patient’s Right to Pharmacy Choice Commission
pursuant to Oklahoma law may be enforced in the s ame manner in which
civil judgments may be enforced. All final orders of the Insurance
Commissioner or Pharmacy Choice Commission imposing administrative
charges, fees, civil penalties , restitution or fines may be recorded
in the office of the Clerk of th e District Court of Oklahoma County
and, upon such recording, all appropriate writs and process shall
issue and shall be enforced by the judges of said court upon
application.
SECTION 5. AMENDATORY 36 O.S. 2011, Section 313, is
amended to read as follows:
Section 313. A. Orders and notices of the Insurance
Commissioner or Patient’s Right to Pharmacy Choice Commission shall
be in writing and shall be signed by either the Commissioner, an
authorized employee of the Insurance Depart ment, or an independent
hearing examiner or the Pharmacy Choice Commission . A final order
signed by an independent hearing examiner, or the Chair or Vice -
Chair of the Pharmacy Choice Commission, after hearing, shall be
final agency action, notwithstanding the provisions of Section 311
of Title 75 of the Oklahoma Statutes.
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B. In the exercise of the powers and the performance of the
duties enumerated in this title, the Commissioner and the Pharmacy
Choice Commission shall comply with the procedures of the
Administrative Procedures Act. Any conflict between the provisions
of Title 75 of the Oklahoma Statutes and of this title shall be
resolved in favor of the provisions of this title.
SECTION 6. AMENDATORY 36 O.S. 2011, Section 319, is
amended to read as follows:
Section 319. A. In conducting any hearing pursuant to the
Insurance Code, the Insurance Commissioner may appoint an
independent hearing examiner who shall sit as a quasi -judicial
officer. The ordinary fees and costs of su ch hearing examiner shall
be assessed by the hearing examiner against the respondent, unless
the respondent is the prevailing party. Within thirty (30) days
after termination of the hearing or of any rehearing thereof or
reargument thereon, unless such ti me is extended by stipulation, a
final order shall be issued.
B. 1. The Patient’s Right to Pharmacy Choice Commission
established pursuant to Section 10 of this act shall conduct any
hearing pursuant to the Patient’s Right to Pharmacy Choice Act or
relating to the oversight of pharmacy benefits managers pursuant to
the Pharmacy Audit Integrity Act and Sections 357 through 360 of
Title 59 of the Oklahoma Statutes. Within thirty (30) days after
termination of a hearing or of any rehearing thereof or reargu ment
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thereon, unless such time is extended by stipulation, a final order
shall be issued.
2. The Pharmacy Choice Commission members shall not be entitled
to receive any compensation related to conducting a hearing pursuant
to this section including per di em or mileage for any travel or
expenses related to appointment on the Commission.
SECTION 7. AMENDATORY 36 O.S. 2011, Section 332, is
amended to read as follows:
Section 332. A. The powers and duties of the Patient’s Right
to Pharmacy Choice Commission shall be created by the Insurance
Commissioner and set forth in the applicable provisions of the
Insurance Code.
B. The Commissioner may conduct such examinations and
investigations of insurance matters, within the scope of the
authority of the Commissioner, as the Commissioner may deem proper
to secure information useful in the lawful administration of the
applicable provisions of the Oklahoma Insurance Code.
B. C. The Insurance Commissioner shall have the authority to
employ actuaries, statisticians, accountants, attorneys, auditors,
investigators or any other technicians as the Insurance Commissioner
may deem necessary or beneficial to examine any filings for rate
revisions made by insurers or advisory organizations and to exam ine
such records of the insurers or advisory organizations as may be
deemed appropriate in conjunction with the filing for a rate
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revision in order to determine that the rates or other filings are
consistent with the terms, conditions, requirements and pur poses of
the Insurance Code, and to verify, validate and investigate the
information upon which the insurer or advisory organization relies
to support such filing.
1. The Commissioner shall maintain a list of technicians
qualified pursuant to rules adopte d by the Commissioner who are
proficient in the lines of insurance being reviewed. Upon request
of the Commissioner, the Commissioner shall employ the next
available technician in rotation on the list, proficient in the line
or lines of insurance being re viewed. The Commissioner may deviate
from the list when employing technicians for loss cost filings
pursuant to Section 901.5 of this title.
2. All reasonable expenses incurred in such filing review shall
be paid by the insurer or advisory organization m aking the filing.
C. D. The Commissioner shall employ examiners to ensure that
the rates which have been approved by or filed with the Commissioner
are the rates which are being used by the insurer or by the insurers
whose advisory organization has had a rate approval or rate filing.
1. Any insurer or pharmacy benefit manager examined pursuant to
the provisions of this section shall pay all reasonable charges
incurred in such examination , including the actual expense of the
Commissioner or, the Pharmacy Choice Commission and the expenses and
compensation of the authorized representative of the Commissioner
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and the expense and compensation of assistants and examiners
employed therein.
2. All expenses incurred in such examination shall be verified
by affidavit and a copy shall be filed and kept in the office of the
Insurance Commissioner.
SECTION 8. AMENDATORY 36 O.S. 2011, Section 907, is
amended to read as follows:
Section 907. In addition to any powers hereinbefore expressly
enumerated in this law, the Insurance Commissioner shall have full
power and authority to enforce by regulations, orders , or otherwise
all and singular, the provisions of this law, and the full intent
thereof. In particular it the Commissioner shall have the authority
and power:
1. To examine all records of insurers , pharmacy benefit
managers and advisory organizations and to require any insurer,
agent, broker and advisory organization to furnish under oath such
information as it may deem necessary for the a dministration of this
law. The expense of such examination shall be paid by the insurer
or advisory organization examined. In lieu of such examination, the
Commissioner may, in the discretion of the Commissioner, accept a
report of examination made by an y other insurance supervisory
authority;
2. To make and enforce such reasonable orders, rules , and
regulations as may be necessary in making this law effective, but
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such orders, rules and regulations shall not be contrary to or
inconsistent with the provi sions of this law; and
3. To issue an order, after a full hearing to all parties in
interest requiring any insurer, group, association , or organization
of insurers and the members and subscribers thereof to cease and
desist from any unfair or unreasonable practice.
SECTION 9. AMENDATORY Section 8, Chapter 426, O.S.L.
2019 (36 O.S. Supp. 2020, Section 6965), is amended to read as
follows:
Section 6965. A. The Insurance Commissioner shall have power
and authority to examine and investigate into the affairs of every
pharmacy benefits manager (PBM) engaged in pharmacy benefits
management in this state in order to determine whether such entity
is in compliance with the Patient’s Right to Pharmacy Choice Act.
B. All PBM files and reco rds shall be subject to examination by
the Insurance Commissioner or by duly appointed designees. The
Insurance Commissioner, authorized employees and examiners shall
have access to any of a PBM’s files and records that may relate to a
particular complaint under investigation or to an inquiry or
examination by the Insurance Department.
C. Every officer, director, employee or agent of the PBM, upon
receipt of any inquiry from the Commissioner shall, within thirty
(30) twenty (20) days from the date the inq uiry is sent, furnish the
Commissioner with an adequate response to the inquiry.
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D. When making an examination under this section, the Insurance
Commissioner may retain subject matter experts, attorneys,
appraisers, independent actuaries, independent cert ified public
accountants or an accounting firm or individual holding a permit to
practice public accounting, certified financial examiners or other
professionals and specialists as examiners, the cost of which shall
be borne by the PBM which that is the subject of the examination.
SECTION 10. AMENDATORY Section 9, Chapter 426, O.S.L.
2019 (36 O.S. Supp. 2020, Section 6966), is amended to read as
follows:
Section 6966. A. There is hereby created the Patient’s Right
to Pharmacy Choice Commission.
B. The Insurance Commissioner shall provide for the receiving
and processing of individual complaints alleging violations of the
provisions of the Patient’s Right to Pharmacy Choice Act , the
Pharmacy Audit Integrity Act and Sections 357 thr ough 360 of Title
59 of the Oklahoma Statutes .
B. C. The Commissioner shall establish a Patient’s Right to
Pharmacy Choice Advisory Committee to have the power and authority
to review complaints, hold hearings, subpoena witnesses and records,
initiate prosecution, reprimand, require restitution, approve and
sign settlement agreements, place on probation, suspend, revoke
and/or levy fines not to exceed Ten Thousand Dollars ($10,000.00)
for each count for which any pharmacy benefits manager (PBM) has
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violated a provision of this act the Patient’s Right to Pharmacy
Choice Act, the Pharmacy Integrity Audit Act and Sections 357
through 360 of Title 59 of the Oklahoma Statutes . The Advisory
Committee Any violation that cannot be settled shall go to a hearing
before the Pharmacy Choice Commission.
The Pharmacy Choice Commission shall hold hearings and may
reprimand, require restitution, place on probation, suspend, revoke
or levy fines not to exceed Ten Thousand Dollars ($10,000.00) for
each count that a PBM has v iolated a provision of the Patient’s
Right to Pharmacy Choice Act, the Pharmacy Integrity Audit Act or
Sections 357 through 360 of Title 59 of the Oklahoma Statutes. The
Insurance Commissioner or the Pharmacy Choice Commission may impose
as part of any disciplinary action restitution to the provider or
patient and the payment of costs expended by the Pharmacy Choice
Commission or Insurance Department for any legal fees and costs
including, but not limited to, staff time, salary and travel
expense, witness fees and attorney fees. The Advisory Committee
Insurance Commissioner or the Pharmacy Choice Commission may take
such actions singly review violations singularly or in combination,
as the nature of the violation requires.
C. D. The Advisory Committee Pharmacy Choice Commission shall
consist of seven (7) persons who shall serve as hearing examiners
and shall be appointed as follows:
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1. Two persons who are members in good standing of the Oklahoma
Pharmacists Association, who shall be nominated appointed by the
Oklahoma Pharmacists Association Board of Pharmacy; a list of
eligible appointees shall be sent annually to the Oklahoma Board of
Pharmacy by the Oklahoma Pharmacists Association ;
2. Two consumer members not employed by or professionally
related to the insurance, pharmacy or PBM nominated industry
appointed by the Office of the Governor;
3. Two persons representing the PBM or insurance industry
nominated appointed by the Insurance Commissioner; and
4. One person representing the Office of the Attorn ey General
nominated appointed by the Attorney General.
D. Committee E. Pharmacy Choice Commission members shall be
first appointed for terms of five (5) years shall serve the initial
term staggered as follows: the two members appointed by the Office
of the Governor shall serve for one (1) year, the two members
appointed by the Insurance Commissioner shall serve for two (2)
years, the two members appointed by the Oklahoma Pharmacists
Association shall serve for two (2) years and the one member
appointed by the Attorney General shall serve for three (3) years.
Subsequent terms shall be for five (5) years . The terms of the
members of the Advisory Committee shall expire on the thirtieth day
of June of the year designated for the expiration of the term for
which appointed, but the member shall serve until a qualified
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successor has been duly appointed. No Except for the initial term
to establish the Pharmacy Choice Commission, no person shall be
appointed to serve more than two consecutive terms. The Commission
shall annually elect a chair and vice -chair from among its members.
There shall be no limit on the number of times a member may serve as
chair or vice-chair. A quorum shall consist of no less than five
(5) members and shall be required for the Commis sion to hold a
hearing.
E. F. Hearings shall be held in the Insurance Commissioner’s
offices or at such other place as the Insurance Commissioner may
deem convenient.
F. G. The Insurance Commissioner shall issue and serve upon the
PBM a statement of the charges and a notice of hearing in accordance
with the Administrative Procedures Act, Sections 250 through 323 of
Title 75 of the Oklahoma Statutes. A hearing shall be set within
thirty (30) days and notice of that hearing date shall be provided
to the complainant within a reasonable time period.
G. H. At the time and place fixed for a hearing, the PBM shall
have an opportunity to be heard and to show cause why the Insurance
Commissioner or his or her duly appointed hearing examiner Pharmacy
Choice Commission should not revoke or suspend the PBM’s license and
levy administrative fines for each violation. Upon good cause
shown, the Commissioner Commission shall permit any person any
complainant or a duly authorized representative of the complainant
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to intervene, appear and be heard at the hearing by counsel or in
person.
H. I. All hearings will be public and held in accordance with,
and governed by, Sections 250 through 323 of Title 75 of the
Oklahoma Statutes.
I. J. The Insurance Commissioner, upon writt en request
reasonably made by the complainant or the licensed PBM affected by
the hearing and at such PBM’s expense of the requesting party shall
cause a full stenographic record of the proceedings to be made by a
competent court reporter.
J. K. If the Insurance Commissioner or Pharmacy Choice
Commission determines, based on an investigation of complaints, that
a PBM has engaged in violations of this act the Patient’s Right to
Pharmacy Choice Act, the Pharmacy Integrity Act or Sections 357
through 360 of Title 59 of the Oklahoma Statutes with such frequency
as to indicate a general business practice and that such PBM should
be subjected to closer supervision with respect to such practices,
the Insurance Commissioner or the Pharmacy Choice Commission may
require the PBM to file a report at such periodic intervals as the
Insurance Commissioner or the Pharmacy Choice Commission deems
necessary.
SECTION 11. AMENDATORY Section 10, Chapter 426, O.S.L.
2019 (36 O.S. Supp. 2020, Section 6967 ), is amended to read as
follows:
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Section 6967. A. Documents, evidence, materials, records,
reports, complaints or other information in the possession or
control of the Insurance Department or the Right to Pharmacy Choice
Commission, that are obtained by , created by or disclosed to the
Insurance Commissioner , Pharmacy Choice Commission or any other
person in the course of an evaluation, examination, investigation or
review made pursuant to the provisions of the Patient’s Right to
Pharmacy Choice Act, the Pharmacy Integrity Audit Act or Sections
357 through 360 of Title 59 of the Oklahoma Statutes shall be
confidential by law and privileged, shall not be subject to open
records request, shall not be subject to subpoena , and shall not be
subject to discovery or admissible in evidence in any private civil
action if obtained from the Insurance Commissioner , the Pharmacy
Choice Commission or any employees or representatives of the
Insurance Commissioner.
B. Nothing in this section shall prevent the disclosure o f a
final order issued against a pharmacy benefits manager by the
Insurance Commissioner or his or her duly appointed hearing examiner
Pharmacy Choice Commission . Such orders shall be open records.
C. In the course of any hearing made pursuant to the pro visions
of the Patient’s Right to Pharmacy Choice Act, the Pharmacy
Integrity Audit Act or Sections 357 through 360 of Title 59 of the
Oklahoma Statutes, nothing in this section shall be construed to
prevent the Insurance Commissioner or any employees or
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representatives of the Insurance Commissioner from presenting
admissible documents, evidence, materials, records, reports or
complaints to the adjudicating authority.
SECTION 12. It being immediately necessary for the preservation
of the public peace, health or safety, an emergency is hereby
declared to exist, by reason whereof this act shall take effect and
be in full force from and after its passage and approval. ”
Passed the Senate the 22nd day of April, 2021.
Presiding Officer of the Senate
Passed the House of Representatives the ____ day of __________,
2021.
Presiding Officer of the House
of Representatives
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ENGROSSED HOUSE
BILL NO. 2123 By: McEntire, Townley, Frix,
Grego, Newton, Moore, Pae,
Boles, Johns, Phillips,
Lawson, Burns, Hilbert,
Sterling, Roe and Caldwell
(Chad) of the House
and
McCortney, Stephens, Hicks
and Taylor of the Senate
An Act relating to insurance; defining term; amending
36 O.S. 2011, Section 121, which relates to
computation of time; inclu ding the Pharmacy Choice
Commission; amending 36 O.S. 2011, Section 301, which
relates to the Insurance Department; including the
Pharmacy Choice Commission; providing for the powers
and duties of the Commission; amending 36 O.S. 2011,
Section 307, as amen ded by Section 1, Chapter 362,
O.S.L. 2017 (36 O.S. Supp. 2020, Section 307), which
relates to the duties of the Insurance Commissioner;
creating exceptions; amending 36 O.S. 2011, Section
312A, as amended by Section 2, Chapter 298, O.S.L.
2015 (36 O.S. Supp. 2020, Section 312A), which
relates to enforcement and recording of penalties and
fees; providing for enforcement of certain actions by
the Pharmacy Choice Commission; amending 36 O.S.
2011, Section 313, which relates to orders and
notices; requiring th e Pharmacy Choice Commission to
comply with certain requirements; amending 36 O.S.
2011, Section 332, which relates to general duties
and powers; vesting the Pharmacy Choice Commission
with certain duties and authorities; authorizing the
Insurance Commissioner to employ certain persons;
providing for certain expenses to be charged to
certain entities; requiring filing and keeping of a
certain affidavit; amending 36 O.S. 2011, Section
907, which relates to the general powers of the
Insurance Commissioner; pr oviding exception; amending
Section 8, Chapter 426, O.S.L. 2019 (36 O.S. Supp.
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2020, Section 6965), which relates to the power to
investigate; vesting certain authority in the
Pharmacy Choice Commission; modifying time for
certain response; amending Sectio n 9, Chapter 426,
O.S.L. 2019 (36 O.S. Supp. 2020, Section 6966), which
relates to complaints of certain violations; creating
the Patient's Right to Pharmacy Choice Commission;
providing for restitution; modifying terms; modifying
appointments of initial m embers; providing for
election of chair and vice -chair; allowing certain
parties to intervene in certain hearings;
transferring certain duties from the Insurance
Commissioner to the Pharmacy Choice Commission;
amending Section 10, Chapter 426, O.S.L. 2019 (36
O.S. Supp. 2020, Section 6967), which relates to
confidentiality and privileged information; including
the Pharmacy Choice Commission; providing for
codification; and declaring an emergency.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 13. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 107.3 of Title 36, unless there
is created a duplication in numbering, reads as follows:
When used with reference to the administration of the O klahoma
Insurance Code, "Pharmacy Choice Commission", "Pharmacy Commission"
or "Commission" means the Patient's Right to Pharmacy Choice
Commission established by Section 6966 of Title 36 of the Oklahoma
Statutes.
SECTION 14. AMENDATORY 36 O.S. 2011, Section 121, is
amended to read as follows:
Section 121. In computing any period of time prescribed or
allowed by this title, by the rules of the Insurance Commissioner or
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the Pharmacy Choice Commission , or by any applicable statute, t he
day of the act, event, or default from which the designated period
of time begins to run shall not be included. The last day of the
period so computed shall be included, unless it is a Saturday, a
Sunday, a legal holiday as defined by the Oklahoma Stat utes, or any
day when the office of the Commissioner does not remain open for
public business until 4:00 p.m., in which event the period runs
until the end of the next day when the office of the Commissioner is
open until 4:00 p.m. When the period of time prescribed or allowed
is less than seven (7) days, intermediate Saturdays, Sundays and
legal holidays shall be excluded in the computation.
SECTION 15. AMENDATORY 36 O.S. 2011, Section 301, is
amended to read as follows:
Section 301. The Insurance Department of the State of Oklahoma
is hereby created. The Department shall consist of the Insurance
Commissioner and the Pharmacy Choice Commission. The Insurance
Commissioner shall be the chief executive officer of the Insurance
Department. The powers and duties of the Insurance Commissioner
shall be those created by the Oklahoma Insurance Code and not
reserved to the Commission, as well as such powers and duties as the
Commission may request the Commissioner to perform. The powers and
duties of the Pharmacy Choice Commission shall be those created by
the applicable provisions of the Code . The Insurance Department
shall be situated in one area in the State Capitol or some other
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location conveniently accessible to the general public subject to
the provisions of Sections 63 and 94 of Title 74 of the Oklahoma
Statutes and Section 580:20 -13-5 of the Oklahoma Administrative
Code.
SECTION 16. AMENDATORY 36 O.S. 2011, Section 307, as
amended by Section 1, Chapter 362, O.S.L. 2017 (36 O.S. Supp. 2020,
Section 307), is amended to read as follows:
Section 307. The Insurance Commissioner shall be charged with
the duty of administration and enforcement of the provisions of the
Oklahoma Insurance Code and of any require ments placed on an
insurance company pursuant to the Oklahoma Statutes , except those
duties specifically assigned to the Pharmacy Choice Commission. The
Insurance Commissioner shall provide such administrative and staff
support as required by the Commissi on. The Commissioner shall have
jurisdiction over complaints against all persons engaged in the
business of insurance, other than complaints assigned to the
Pharmacy Choice Commission, and shall hear all matters either in
person, by authorized disinterest ed employees, or by hearing
examiners appointed by the Commissioner for that purpose. It shall
be the duty of the Commissioner to file and safely keep all books
and papers required by law to be filed with the Insurance
Department, and to keep and preserve in permanent form a full record
of proceedings, including a concise statement of the conditions of
such insurers and other entities reported and examined by the
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Department and its examiners. The Commissioner shall, annually, at
the earliest practicable d ate after returns are received from the
several authorized insurers and other organizations, make a report
to the Governor of the State of Oklahoma of the affairs of the
Office office of the Commissioner, which report shall contain a
tabular statement and synopsis of the several statements, as
accepted by the Commissioner, which shall include with respect to
each insurance company the admitted assets, liabilities except
capital, capital and surplus, Oklahoma premium income, amount of
claims paid in Oklahoma , and such other matters as may be of benefit
to the public. The Commissioner may educate consumers and make
recommendations regarding the subject of insurance in this state,
and shall set forth in a statement the various sums received and
disbursed by the Department, from and to whom and for what purpose.
Such report shall be published by and subject to the order of the
Commissioner. The Commissioner shall, upon retiring from office,
deliver to the qualified successor all furniture, records, papers
and property of the office.
SECTION 17. AMENDATORY 36 O.S. 2011, Section 312A, as
amended by Section 2, Chapter 298, O.S.L. 2015 (36 O.S. Supp. 2020,
Section 312A), is amended to read as follows:
Section 312A. Civil penalties and fee s imposed by the Insurance
Commissioner or Pharmacy Choice Commission pursuant to Oklahoma law
may be enforced in the same manner in which civil judgments may be
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enforced. All final orders of the Insurance Commissioner or
Pharmacy Choice Commission imposing administrative charges, fees,
civil penalties, restitution or fines may be recorded in the office
of the Clerk of the District Court of Oklahoma County and, upon such
recording, all appropriate writs and process shall issue and shall
be enforced by the judges of said court upon application.
SECTION 18. AMENDATORY 36 O.S. 2011, Section 313, is
amended to read as follows:
Section 313. A. Orders and notices of the Insurance
Commissioner or Pharmacy Choice Commission shall be in writing and
shall be signed by either the Commissioner, an authorized employee
of the Insurance Department, or an independent hearing examiner. A
final order signed by an independent hearing examiner, after
hearing, shall be final agency action, notwithsta nding the
provisions of Section 311 of Title 75 of the Oklahoma Statutes.
B. In the exercise of the powers and the performance of the
duties enumerated in this title, the Commissioner and the Pharmacy
Choice Commission shall comply with the procedures of the
Administrative Procedures Act. Any conflict between the provisions
of Title 75 of the Oklahoma Statutes and of this title shall be
resolved in favor of the provisions of this title.
SECTION 19. AMENDATORY 36 O.S. 2011, Sectio n 332, is
amended to read as follows:
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Section 332. A. The Pharmacy Choice Commission is hereby
vested with the duty and authority of enforcing and administering
all applicable provisions of the Oklahoma Insurance Code pertaining
to the jurisdiction of th e Commission, as well as the provisions of
Sections 356 through 360 of Title 59 of the Oklahoma Statutes.
B. The Commission shall have powers and authority expressly
conferred upon it and reasonably implied by the provisions of this
Code and by the provis ions of Sections 356 through 360 of Title 59
of the Oklahoma Statutes. The Commission shall have the power to
approve, disapprove, or approve with modifications any filings
submitted to it.
C. The Commission may conduct such examinations and
investigations of insurance matters, within the scope of its
authority, as it may deem proper to secure information useful in the
lawful administration of the applicable provisions of this Code and
Sections 356 through 360 of Title 59 of the Oklahoma Statutes.
D. The Insurance Commissioner, on behalf of the Pharmacy Choice
Commission, shall have the authority to employ actuaries,
statisticians, accountants, attorneys, auditors, investigators or
any other technicians, as the Commission may deem necessary or
beneficial, to examine, audit, review, validate, investigate or
secure information useful in the lawful administration of the
applicable provisions of this Code and Sections 356 through 360 of
Title 59 of the Oklahoma Statutes.
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1. Any entity examined by the Commissi on pursuant to this
section shall pay all reasonable charges incurred in such
examination, including the actual expense of the Commission or the
expenses and compensation of the authorized representative of the
Commission.
2. All expenses incurred in such examination shall be verified
by affidavit and a copy thereof shall be filed and kept at the
office of the Insurance Commissioner.
E. The Commissioner may conduct such examinations and
investigations of insurance matters, within the scope of the
authority of the Commissioner, as the Commissioner may deem proper
to secure information useful in the lawful administration of the
applicable provisions of the Oklahoma Insurance Code.
B. F. The Insurance Commissioner shall have the authority to
employ actuaries, statisticians, accountants, attorneys, auditors,
investigators or any other technicians as the Insurance Commissioner
may deem necessary or beneficial to examine any filings for rate
revisions made by insurers or advisory organizations and to examine
such records of the insurers or advisory organizations as may be
deemed appropriate in conjunction with the filing for a rate
revision in order to determine that the rates or other filings are
consistent with the terms, conditions, requirements and purposes o f
the Insurance Code, and to verify, validate and investigate the
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information upon which the insurer or advisory organization relies
to support such filing.
1. The Commissioner shall maintain a list of technicians
qualified pursuant to rules adopted by th e Commissioner who are
proficient in the lines of insurance being reviewed. Upon request
of the Commissioner, the Commissioner shall employ the next
available technician in rotation on the list, proficient in the line
or lines of insurance being reviewed. The Commissioner may deviate
from the list when employing technicians for loss cost filings
pursuant to Section 901.5 of this title.
2. All reasonable expenses incurred in such filing review shall
be paid by the insurer or advisory organization making t he filing.
C. G. The Commissioner shall employ examiners to ensure that
the rates which have been approved by or filed with the Commissioner
are the rates which are being used by the insurer or by the insurers
whose advisory organization has had a rate ap proval or rate filing.
1. Any insurer examined pursuant to the provisions of this
section shall pay all reasonable charges incurred in such
examination, including the actual expense of the Commissioner or the
expenses and compensation of the authorized re presentative of the
Commissioner and the expense and compensation of assistants and
examiners employed therein.
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2. All expenses incurred in such examination shall be verified
by affidavit and a copy shall be filed and kept in the office of the
Insurance Commissioner.
SECTION 20. AMENDATORY 36 O.S. 2011, Section 907, is
amended to read as follows:
Section 907. In addition to any powers hereinbefore expressly
enumerated in this law, the Commissioner shall have full power and
authority to enforce by regulations, orders, or otherwise all and
singular, the provisions of this law, and the full intent thereof ,
except for those provisions reserved to the Pharmacy Choice
Commission by the Oklahoma Insurance Code and Sections 356 through
360 of Title 59 of the Oklahoma Statutes . In particular it the
Commissioner shall have the authority and power:
1. To examine all records of insurers and advisory
organizations and to require any insurer, agent, broker and advisory
organization to furnish u nder oath such information as it may deem
necessary for the administration of this law. The expense of such
examination shall be paid by the insurer or advisory organization
examined. In lieu of such examination, the Commissioner may, in the
discretion of the Commissioner, accept a report of examination made
by any other insurance supervisory authority;
2. To make and enforce such reasonable orders, rules, and
regulations as may be necessary in making this law effective, but
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such orders, rules and regula tions shall not be contrary to or
inconsistent with the provisions of this law; and
3. To issue an order, after a full hearing to all parties in
interest requiring any insurer, group, association, or organization
of insurers and the members and subscriber s thereof to cease and
desist from any unfair or unreasonable practice.
SECTION 21. AMENDATORY Section 8, Chapter 426, O.S.L.
2019 (36 O.S. Supp. 2020, Section 6965), is amended to read as
follows:
Section 6965. A. The Insurance Commissioner Pharmacy Choice
Commission shall have power and authority to examine and investigate
into the affairs of every pharmacy benefits manager (PBM) engaged in
pharmacy benefits management in this state in order to determine
whether such entity is in compliance with the Patient's Right to
Pharmacy Choice Act.
B. All PBM files and records shall be subject to examination by
the Insurance Commissioner or by duly appointed designees Pharmacy
Choice Commission. The Insurance Commissioner Commission,
authorized employees and examiners shall have access to any of a
PBM's files and records that may relate to a particular complaint
under investigation or to an inquiry or examination by the Insurance
Department Commission.
C. Every officer, director, employ ee or agent of the PBM, upon
receipt of any inquiry from the Commissioner Pharmacy Choice
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Commission shall, within thirty (30) fifteen (15) days from the date
the inquiry is sent, furnish the Commissioner Commission with an
adequate response to the inquiry .
D. When making an examination under this section, the Insurance
Commissioner Pharmacy Choice Commission may retain subject matter
experts, attorneys, appraisers, independent actuaries, independent
certified public accountants or an accounting firm or in dividual
holding a permit to practice public accounting, certified financial
examiners or other professionals and specialists as examiners, the
cost of which shall be borne by the PBM which that is the subject of
the examination.
SECTION 22. AMENDATORY Section 9, Chapter 426, O.S.L.
2019 (36 O.S. Supp. 2020, Section 6966), is amended to read as
follows:
Section 6966. A. There is hereby created the Patient's Right
to Pharmacy Choice Commission.
B. The Insurance Commissioner , on behalf of the Pharmacy Choice
Commission, shall provide for the receiving and processing of
individual complaints alleging violations of the provisions of the
Patient's Right to Pharmacy Choice Act and Sections 356 through 360
of Title 59 of the Oklahoma St atutes.
B. C. The Commissioner Pharmacy Choice Commission shall
establish a Patient's Right to Pharmacy Choice Advisory Committee to
review complaints, hold hearings, subpoena witnesses and records,
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initiate prosecution, reprimand, require restitution, place on
probation, suspend, revoke and/or levy fines not to exceed Ten
Thousand Dollars ($10,000.00) for each count for which any pharmacy
benefits manager (PBM) has violated a provision of this act the
Patient's Right to Pharmacy Choice Act or Sections 356 through 360
of Title 59 of the Oklahoma Statutes . The Advisory Committee
Commission may impose as part of any disciplinary action restitution
to the provider or patient and the payment of costs expended by the
Commission or Insurance Department for any l egal fees and costs
including, but not limited to, staff time, salary and travel
expense, witness fees and attorney fees. The Advisory Committee
Commission may take such actions singly or in combination, as the
nature of the violation requires.
C. D. The Advisory Committee Pharmacy Choice Commission shall
consist of seven (7) persons appointed as follows:
1. Two persons who shall be nominated appointed by the Oklahoma
Pharmacists Association;
2. Two consumer members not employed by or professionally
related to the insurance, pharmacy or PBM nominated industry
appointed by the Office of the Governor;
3. Two persons representing the PBM or insurance industry
nominated appointed by the Insurance Commissioner; and
4. One person representing the Office of t he Attorney General
nominated appointed by the Attorney General.
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D. Committee E. Pharmacy Choice Commission members shall be
first appointed for terms of five (5) years shall serve the initial
term staggered as follows: the two members appointed by the O ffice
of the Governor shall serve for one (1) year, the two members
appointed by the Insurance Commissioner shall serve for two (2)
years, the two members appointed by the Oklahoma Pharmacists
Association shall serve for two (2) years, and the one member
appointed by the Attorney General shall serve for three (3) years.
Subsequent terms shall be for five (5) years . The terms of the
members of the Advisory Committee shall expire on the thirtieth day
of June of the year designated for the expiration of the term for
which appointed, but the member shall serve until a qualified
successor has been duly appointed. No person shall be appointed to
serve more than two consecutive terms. The Commission shall
annually elect a chair and vice -chair from among its mem bers. There
shall be no limit on the number of times a member may serve as chair
or vice-chair.
E. F. Hearings shall be held in the Insurance Commissioner's
offices or at such other place as the Insurance Commissioner
Commission may deem convenient.
F. G. The Insurance Commissioner , on behalf of the Pharmacy
Choice Commission, shall issue and serve upon the PBM a statement of
the charges and a notice of hearing in accordance with the
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Administrative Procedures Act, Sections 250 through 323 of Title 75
of the Oklahoma Statutes.
G. H. At the time and place fixed for a hearing, the PBM shall
have an opportunity to be heard and to show cause why the Insurance
Commissioner Pharmacy Choice Commission or his or her its duly
appointed hearing examiner should not revoke or suspend the PBM's
license and levy administrative fines for each violation. Upon good
cause shown, the Commissioner Commission shall permit any person a
duly authorized representative of the PBM to intervene, appear and
be heard at the hearing b y counsel or in person.
H. I. All hearings will be public and held in accordance with,
and governed by, Sections 250 through 323 of Title 75 of the
Oklahoma Statutes.
I. J. The Insurance Commissioner, on behalf of the Pharmacy
Choice Commission, upon written request reasonably made by the
licensed PBM affected by the hearing and at such PBM's expense shall
cause a full stenographic record of the proceedings to be made by a
competent court reporter.
J. K. If the Insurance Commissioner Pharmacy Choice Comm ission
determines, based on an investigation of complaints, that a PBM has
engaged in violations of this act the Patient's Right to Pharmacy
Choice Act or Sections 356 through 360 of Title 59 of the Oklahoma
Statutes with such frequency as to indicate a ge neral business
practice and that such PBM should be subjected to closer supervision
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with respect to such practices, the Insurance Commissioner
Commission may require the PBM to file a report at such periodic
intervals as the Insurance Commissioner Commission deems necessary.
SECTION 23. AMENDATORY Section 10, Chapter 426, O.S.L.
2019 (36 O.S. Supp. 2020, Section 6967), is amended to read as
follows:
Section 6967. A. Documents, materials, reports, complaints or
other information in the possession or control of the Insurance
Department, on behalf of the Pharmacy Choice Commission, that are
obtained by or disclosed to the Insurance Commissioner , Pharmacy
Choice Commission, or any other person in the course of an
evaluation, examinati on, investigation or review made pursuant to
the provisions of the Patient's Right to Pharmacy Choice Act or
Sections 356 through 360 of Title 59 of the Oklahoma Statutes shall
be confidential by law and privileged, shall not be subject to open
records request, shall not be subject to subpoena, and shall not be
subject to discovery or admissible in evidence in any private civil
action if obtained from the Insurance Commissioner , the Pharmacy
Choice Commission, or any employees or representatives of the
Insurance Commissioner Department.
B. Nothing in this section shall prevent the disclosure of a
final order issued against a pharmacy benefits manager by the
Insurance Commissioner Pharmacy Choice Commission or his or her its
duly appointed hearing examiner. Such orders shall be open records.
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SECTION 24. It being immediately necessary for the preservation
of the public peace, health or safety, an emergency is hereby
declared to exist, by reason whereof this act shall take effect and
be in full force from and after its passage and approval.
Passed the House of Representatives the 8th day of March, 2021.
Presiding Officer of the House
of Representatives
Passed the Senate the ___ day of __________, 2021.
Presiding Officer of the Sen ate