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STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022)
HOUSE BILL 3492 By: McEntire
AS INTRODUCED
An Act relating to healthcare; creating the Oklahoma
Rebate Pass Through and PBM Meaningful Transparency
Act of 2022; amending 59 O.S. 2021, Sections 357 and
358, which relate to definitions; modifying
definitions; creating duties; creating licensing
application requirements; amending 36 O.S. 2021,
Section 6960, which relates to definitions; defining
terms; creating PBM disclosures; amending 36 O.S.
2021, Section 6962, which relates to pharmacy
benefits manager compliance; creating duties;
amending 36 O.S. 2021, Section 6964, which relates to
a formulary for prescription drugs; creating agency
duties; creating PBM fairness in cost sharing;
creating penalties; creating insurer fairness in cost
sharing; providing for noncodification; providing for
codification; and providing an effecti ve date.
BE IT ENACTED BY THE PEOP LE OF THE STATE OF OKLAHOMA :
SECTION 1. NEW LAW A new section of law not to b e
codified in the Oklahoma Statutes reads as follows:
This act shall be known and may be cited as the "Oklahoma Rebate
Pass Through and PBM Meaningful Transparency Act of 2022 ".
SECTION 2. AMENDATORY 59 O.S. 2021, Section 357, is
amended to read as fo llows:
Section 357. As used in this act:
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1. "Covered entity" means a nonprofit hospital or medical
service organization, insurer, heal th coverage plan or health
maintenance organization; a health program administered by the state
in the capacity of pro vider of health coverage; or an employer,
labor union, or other entity organized in the state that provides
health coverage to covered ind ividuals who are employed o r reside in
the state. This term does not include a health plan that provides
coverage only for accidental injury, specified disease, hospital
indemnity, disability income, or other limited benefit he alth
insurance policies and contracts that do not inclu de prescription
drug coverage;
2. "Covered individual" means a member, participant, enroll ee,
contract holder or policy holder or beneficiary of a covered entity
who is provided health coverage by the covered entity. A covered
individual includes any dep endent or other person provided health
coverage through a policy, contract or plan for a co vered
individual;
3. "Department" means the Oklahoma Insurance Department;
4. "Maximum allowable cost " or "MAC" means the list of drug
products delineating the max imum per-unit reimbursement for
multiple-source prescription drugs, medical product or devi ce;
5. "Multisource drug product reimbursement " (reimbursement)
means the total amount paid to a pharmacy inc lusive of any reduction
in payment to the pharmacy, exc luding prescription dispense fees;
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6. "Pharmacy benefits management " means a service provi ded to
covered entities to facilitate the provision of prescription drug
benefits to covered individuals withi n the state, including
negotiating pricing and other te rms with drug manufacturers and
providers. Pharmacy benefits management may include any or all of
the following services:
a. claims processing, performance of drug-utilization
review, processing of dr ug prior authorization
requests, retail network managem ent and payment of
claims to pharmacies for prescription drugs dispensed
to covered individuals,
b. clinical formulary development and management
services,
c. rebate contracting an d administration,
d. certain patient compliance, therapeutic intervention
and generic substitution programs, or
e. disease management programs ,
f. adjudication of appeals and grievances related to the
prescription drug benefit, and/or
g. controlling the cost of prescription drugs;
7. "Pharmacy benefits manager" or "PBM" means a person,
business or other entity that, either directly or through an
intermediary, performs pharmacy benefits management. The term
includes a person or entity acting for a PBM in a contractual or
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employment relationship in the pe rformance of pharmacy benef its
management for a managed care company, nonprofit hospital, medical
service organization, insurance company, third-party payor, or a
health program administered by an agency of this state;
8. "Plan sponsor" means the employers, insurance companies,
unions and health maintenance organizations or any other entity
responsible for establishing, maintaining, or administering a health
benefit plan on behalf of covered individuals; and
9. "Provider" means a pharmacy licensed by the State Board of
Pharmacy, or an agent or representative of a pharmacy, including,
but not limited to, the pharmacy 's contracting agent, which
dispenses prescription drugs or devices to covered individuals.
SECTION 3. AMENDATORY 59 O.S. 2021, Section 358, is
amended to read as follows:
Section 358. A. In order to provide pharmacy benefits
management or any of the services included under the defi nition of
pharmacy benefits management in this state, a pharma cy benefits
manager or any entity acting as one in a co ntractual or employment
relationship for a covered entity shall first obtain a license from
the Oklahoma Insurance Department, and the Depa rtment may charge a
fee for such licensure.
B. The Department shall establish, by regulat ion, licensure
procedures, required disclosures for pharmacy benefits managers
(PBMs) and other rules as may be necessar y for carrying out and
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enforcing the provision s of this act. The licensure procedures
shall, at a minimum, include the completion of an application form
that shall include the name and address of an agent for service of
process, the payment of a requisite fee, and evidence of the
procurement of a sur ety bond the following:
1. The name, address, and telephone contact number of the PBM;
2. The name and address of the PBM's agent for service of
process in the state;
3. The name and address of each person wit h management or
control over the PBM;
4. Evidence of the procurement of a surety bon d;
5. The name and address of each person with a beneficial
ownership interest in the PBMs;
6. In the case of a PBM applicant that is a partnership or
other unincorporated association, limited liability corporation o r
corporation, and has five or more partners, members, or
stockholders:
a. the applicant shall specify its legal structure and
the total number of partners, members, or
stockholders,
b. the applicant shall specify the name, address, usual
occupation, and professional qualifications of the
five partners, members , or stockholders with the five
largest ownership interests in the PBM, and
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c. the applicant shall agree that, upon request by the
Department, it shall furnish the Department with
information regarding the name, address, usual
occupation, and professional qualifications of any
other partners, members, or stockhol ders; and
7. A signed statement indicating that the PBM has not been
convicted of a felony and has not violated any of the requireme nts
of the Oklahoma Pharmacy Act and the Patient 's Right to Pharmacy
Choice Act, or, if the ap plicant cannot provide such a statement, a
signed statement describing the relevant convi ction(s) or
violation(s).
C. The Department may subpoena witnesses and informa tion. Its
compliance officers may take and copy records for i nvestigative use
and prosecutions. Nothing in this subsection shall limit the Offic e
of the Attorney General from using its investi gative demand
authority to investigate and prosecute violation s of the law.
D. The Department may suspend, revoke or refuse to issue or
renew a license for noncompliance with any of the provisions hereby
established or with the rules promulgated by the D epartment; for
conduct likely to mislead, deceive or defraud th e public or the
Department; for unfair or deceptive business p ractices or for
nonpayment of a renewal fee or fine . The Department may also levy
administrative fines for each count of which a PBM has been
convicted in a Department hearing.
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SECTION 4. AMENDATORY 36 O.S. 2021, Section 6960, is
amended to read as follows :
Section 6960. For purposes of the Patient's Right to Pharmacy
Choice Act:
1. "Administrative fees" means fees or payments from
pharmaceutical manufacturers to, or otherwise retained by, a
pharmacy benefits manager (PBM) or its designee pursuant to a
contract between a PBM or a ffiliate and the manufacturer in
connection with the PBM's administering, invoicing, alloc ating and
collecting the rebates;
2. "Aggregate-retained rebate percentage" means the percentage
of all rebates received by a PBM from all pharmaceutical
manufacturers which is not passed on to the PBM's health plan or
health insurer clients. Aggregate-retained rebate percentage shall
be expressed without disclosing any identifying information
regarding any health pla n, prescription drug, or the rapeutic class,
and shall be calculated by dividi ng:
a. the aggregate dollar amount of all rebates that the
PBM received during t he prior calendar year from all
pharmaceutical manufacturers and did not pass through
to the PBM's health plan or health in surer clients, by
b. the aggregate dollar amount of all rebates that the
pharmacy benefits manager received duri ng the prior
calendar year from all pharmaceutical manufacturers;
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3. "Defined cost sharing" means a deductible payment or
coinsurance amount impo sed on an enrollee for a cover ed prescription
drug under the enrol lee's health plan;
4. "Formulary" means a list of prescription drugs , as well as
accompanying tiering and other coverage information, that has been
developed by an issuer, a health plan, or t he designee of a health
insurer or health plan, which the health insurer, health plan, or
designee of the health insurer or health plan references in
determining applicable coverage and benefit levels;
5. "Generic equivalent" means a drug that is designate d to be
therapeutically equivalent, as indicated by the United States Food
and Drug Administration's "Approved Drug Products with Therapeutic
Equivalence Evaluatio ns"; provided, however, that a drug shall not
be considered a generic equivalent until the drug becomes nationally
available;
6. "Health insurer" means any corporation, associa tion, benefit
society, exchange, partnership or individual licensed by the
Oklahoma Insurance Code;
7. "Health insurer administrative service fees" means fees or
payments from a health insurer or a designee of the health insurer
to, or otherwise retained by, a PBM or its design ee pursuant to a
contract between a PBM or affiliate, and the health insurer or
designee of the health insurer in connec tion with the PBM managing
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or administering the pharmacy benefit and administering, invoicin g,
allocating and collecting rebates;
8. "Health plan" means a policy, contract, certification, or
agreement offered or issued by a health insurer to provide, deli ver,
arrange for, pay for , or reimburse any of the costs of health
services;
2. 9. "Mail-order pharmacy" means a pharmacy licensed by t his
state that primarily dispenses and delivers covered drugs via common
carrier;
3. 10. "Pharmacy benefits manager " or "PBM" means a person
that, either directly or through a n intermediary, performs pharmacy
benefits management, as defined in paragraph 6 of Section 357 of
Title 59 of the Oklahoma Statutes and any other person acting for
such person under a contractual or employment relationship in th e
performance of pharmacy benefits management for a managed -care
company, nonprofit hospital, m edical service organization, insurance
company, third-party payor or a health program administered by a
department of this state;
4. 11. "Pharmacy and therapeut ics committee" or "P&T committee"
means a committee at a hospit al or a health insurance plan th at
decides which drugs will appear on that entity 's drug formulary;
12. "Price-protection rebate" means a negotiated-price
concession that accrues directly or indirectly to the health
insurer, or other party on behalf of the health insurer, in the
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event of an increase in the wholesale acquisition of a drug above a
specified threshold;
13. "Rebates" means:
a. negotiated-price concessions including, but not
limited to, base-price concessions (whether described
as a rebate or otherwise) and reasonable estima tes of
any price-protection rebates and performance -based
price concessions that may accrue directly or
indirectly to the PBM during the coverage year from a
manufacturer, dispensing pharmacy, or other party in
connection with the dispensing or administrat ion of a
prescription drug, and
b. reasonable estimates of any price concessions, fees ,
and other administrative costs that are pass ed
through, or are reasonably anticipated to be passed
through, to the PBM and serve to redu ce the PBM's
liabilities for a pr escription drug;
5. 14. "Retail pharmacy network " means retail pharmacy
providers contracted with a PBM in which the pharmacy prim arily
fills and sells prescri ptions via a retail, storefront location;
6. 15. "Rural service area" means a five-digit ZIP code in
which the population density is less than one thousand (1,0 00)
individuals per square mile;
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7. 16. "Suburban service area " means a five-digit ZIP code in
which the population de nsity is between one thousand (1,000) a nd
three thousand (3,000) individu als per square mile; and
8. 17. "Urban service area" means a five-digit ZIP code in
which the population density is greater than three thousand (3,000)
individuals per square mile.
SECTION 5. NEW LAW A new section of law to be codi fied
in the Oklahoma Statutes as Section 6962.1 of Title 36, unless there
is created a duplication in numbering, reads as follows :
A. Beginning on January 1, 2022, and on an annual basi s
thereafter, a pharmacy benefits ma nager (PBM) shall provide the
Insurance Department with a report containing the following
information from the prior calendar year as it pertai ns to pharmacy
benefits provided by health insurer s to enrollees in the state:
1. The aggregate dollar amount of all rebates that the PBM
received from all phar maceutical manufacturers;
2. The aggregate dollar amount of al l administrative fees that
the PBM received;
3. The aggregate dollar amount of al l issuer administrative
service fees that the PBM received;
4. The aggregate dollar amount of all rebates that the PBM
received from all pharmaceutical manufacturers and did not pass
through to health plans or he alth insurers;
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5. The aggregate dollar amo unt of all administrative fees that
the PBM received from all pharmaceutical manufacturers and did not
pass through to health plans or health insurers;
6. The aggregate-retained rebate percentage; and
7. Across all of the PBM's contractual or other relationships
with all health plans or health insurers, the highest aggregate-
retained rebate percentage, the lowest aggregate -retained rebate
percentage, and the mean aggregate-retained rebate perc entage.
B. The Department shall p ublish in a timely manner the
information that it receives under subsection A of this section on a
publicly available website ; provided that such information shall be
made available in a form that does not disclose the identity of a
specific health plan or the identity of a specific manufacturer, the
prices charged for specific drugs or classes o f drugs, or the amount
of any rebates provided for specific drugs or classes of drugs.
C. The PBM and the Department shall not publish or otherwise
disclose any information that would reveal the identity of a
specific health plan, the price(s) charged for a specific drug or
class of drugs, the amount of any rebates provided for a specific
drug or class of drugs, the manufacturer, or that would otherw ise
have the potential to compromise the financial, competitive, o r
proprietary nature of the information. Any such information shall
be protected from disclosure as confidential and proprietary
information, is not a public record as defined in the Oklahoma Open
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Records Act, Section 24A.1 et seq. of Title 51 of the Oklahoma
Statutes, and shall not be disclosed directly or indirectly. A PBM
shall impose the confidential ity protections of this section on any
vendor or downstream third pa rty that performs health care or
administrative services on beha lf of the PBM and that may receive or
have access to rebate info rmation.
SECTION 6. AMENDATORY 36 O.S. 2021, Section 6962, is
amended to read as follows :
Section 6962. A. The Oklahoma Insurance Departme nt shall
review and approve retail pharmacy network access for all pharmacy
benefits managers (PBMs) to ensure compliance with Se ction 4 6961 of
this act title.
B. A PBM, or an agent of a PBM, shall n ot:
1. Cause or knowingly permit the us e of advertisement,
promotion, solicitation , representation, proposal or offer that is
untrue, deceptive or misleading;
2. Charge a pharmacist or pharmacy a fee related to the
adjudication of a claim, including with out limitation a fee for:
a. the submission of a claim,
b. enrollment or participat ion in a retail pharmacy
network, or
c. the development or manag ement of claims processing
services or claims payment services related to
participation in a retail pharmacy network;
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3. Reimburse a pharmacy or pha rmacist in the state an amount
less than the amount that the PBM reimburses a pharmacy owned by or
under common ownership with a PBM for providi ng the same covered
services. The reimbursement amount paid to the phar macy shall be
equal to the reimbursement amount calculated on a per-unit basis
using the same generic product identifier or generic code number
paid to the PBM-owned or PBM-affiliated pharmacy;
4. Deny a pharmacy the oppo rtunity to participate in any
pharmacy network at preferred participation status if the pharmacy
is willing to accept the terms and conditions that the PBM has
established for other pharmacies as a condition of preferr ed network
participation status;
5. Deny, limit or terminate a pharmacy 's contract based on
employment status of any employee who has an active license to
dispense, despite probation status, with the State Board of
Pharmacy;
6. Retroactively deny or redu ce reimbursement for a covered
service claim after returning a paid clai m response as part of the
adjudication of the claim, unless:
a. the original claim was submitted fraudulently, or
b. to correct errors identified i n an audit, so long as
the audit was conducted in compliance with Sections
356.2 and 356.3 of Title 59 of the Oklahoma Statutes;
or
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7. Fail to make any payment due to a pharmacy or pharmacist for
covered services properly rendered in the event a PBM termi nates a
pharmacy or pharmacist from a pharmacy benefits manager network ; or
8. Contractually prohibit or penalize a pharmacy or pharmacist
for:
a. disclosing to an individual information rega rding the
existence and clinical efficacy of a generic
equivalent that would be less expensive to the
enrollee,
(1) under his or her health pla n prescription drug
benefit, or
(2) outside his or her health plan pres cription drug
benefit, without requesting any health plan
reimbursement,
than the drug that was original ly prescribed, or
b. selling to an individual, instead of a particular
prescribed drug, a therapeutically equivalent drug
that would be less expensive t o the enrollee,
(1) under his or her hea lth plan prescription drug
benefit, or
(2) outside his or her h ealth plan prescription drug
benefit, without requesting any health plan
reimbursement,
than the drug that was originally prescribed .
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C. The prohibitions under this section shall apply to con tracts
between pharmacy benefits managers and pharmacists or pha rmacies for
participation in retail phar macy networks.
1. A PBM contract shall:
a. not restrict, directly or indirectly, any pharmacy
that dispenses a prescription drug from informing, or
penalize such pharmacy for informing, an individual of
any differential between the individual 's out-of-
pocket cost or coverage with respect to acqu isition of
the drug and the amount an individual would pay to
purchase the drug directly, and
b. ensure that any entity that provides pharmacy benefits
management services und er a contract with any such
health plan or health insurance coverage does not,
with respect to such plan or coverage, restrict,
directly or indirectly, a pharmacy that dispenses a
prescription drug from informing, or penalize such
pharmacy for informing, a covered individual of any
differential between the individual 's out-of-pocket
cost under the plan or coverage with respect to
acquisition of the drug an d the amount an individual
would pay for acquisition of the drug without using
any health plan or healt h insurance coverage.
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2. A pharmacy benefits manager's contract with a participa ting
pharmacist or pharmacy shall not prohibit, restrict or limit
disclosure of information to the Insurance Co mmissioner, law
enforcement or state and federal governmental of ficials
investigating or examining a com plaint or conducting a review of a
pharmacy benefits manager's compliance with the requirements under
the Patient's Right to Pharmacy Choice Act.
3. A pharmacy benefits manager shall establish and maintain an
electronic claim inquiry processing system usi ng the National
Council for Prescription Drug Programs' current standards to
communicate information to pharmacie s submitting claim inquiries.
D. For each of the PBM's contracts or other relationships with
a health plan, a PBM shall publish on an easily a ccessible website
the health plan formula ry, and timely notification of formulary
changes and/or product exclusion s.
SECTION 7. AMENDATORY 36 O.S. 2021, Section 6964, is
amended to read as fol lows:
Section 6964. A. A health insurer's insurer or its agent's,
including pharmacy benefits managers, pharmacy and therapeutics
committee (P&T committee) shall establish a formulary, which shall
be a list of prescription drugs, both generic and brand n ame, used
by practitioners to identif y drugs that offer the greatest overall
value.
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B. A health insurer shall prohibit conflicts of interest for
members of the P&T committee. The P&T committee shall review the
formulary annually and must meet the followin g requirements:
1. A person may not serve on a P&T committee if the person is
currently employed or was employe d within the preceding year by a
pharmaceutical manufacturer, developer, labeler , wholesaler or
distributor. A majority of P&T committee members must be practicing
physicians, practicing pharmacists, or both, and must be licens ed in
Oklahoma;
2. A health insurer shall require any member of the P&T
committee to disclose any compensati on or funding from a
pharmaceutical manufacturer, deve loper, labeler, wholesaler or
distributor. Such P&T committee member shall be recused from v oting
on any product manufactured or sold by such pharmaceutical
manufacturer, developer, labeler, wholesaler or distributor. P&T
committee members must practice in various clinical specialties that
adequately represent the needs of health plan enrollees, and there
must be an adequate number of high -volume specialists and
specialists treating rare and orphan dise ases;
3. The P&T committee must meet no less frequently than on a
quarterly basis;
4. P&T committee formulary development must be conducted
pursuant to a transparent process, and formulary decisions and
rationale must be docum ented in writing, with any r ecords and
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documents relating to the process ava ilable upon request to the
health plan, subject to the c onditions in subsection C of this
section. In the case of P&T committee decisions that relate to
Medicaid managed care orga nizations' prescription drug coverage
policies, if the P&T committee relies upon any third party to
provide cost-effectiveness analysis or research, the P&T committee
must:
a. disclose to the health benefit plan, the state, and
the general public the name of the relevant third-
party, and
b. provide a process through which patients and providers
potentially impacted by the third -party's analysis or
research may provide input to the P&T commit tee;
5. Specialists with current clinical expertise who actively
treat patients in a specifi c therapeutic area, and the specific
conditions within a therape utic area, must participate in formular y
decisions regarding each therapeutic area and specific co ndition;
6. The P&T committee must base its clinical decisions on the
strength of scientific evidence, standards of practice, and
nationally accepted treatme nt guidelines;
7. The P&T committee mu st consider whether a particular drug
has a clinically mean ingful therapeutic advantage over other drugs
in terms of safety, effectiveness, or clinical o utcome for patient
populations who may be treated with the drug;
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8. The P&T committee must evaluate an d analyze treatment
protocols and procedures related to the health plan's formulary at
least annually;
9. The P&T committee must review formulary manage ment
activities, including exceptions and appeals processes, pri or
authorization, step therapy, quantit y limits, generic subs titutions,
therapeutic interchange, a nd other drug utilization management
activities for clinical appropriateness and consistency with
industry standards and patient and provider organization guidelines;
10. The P&T committee must annually review and provide a
written report to the pharmacy benefits manager on:
a. the percentage of prescription drugs on fo rmulary
subject to each of the types of utilization management
described in paragraph 9 of this subsection,
b. rates of adherence and nonadherence to medicin es by
therapeutic area,
c. rates of abandonment of medicines by therapeutic area,
d. recommendations for improved adherence and reduced
abandonment,
e. recommendations for improvement in f ormulary
management practices consistent with patient , and
provider organization and other clinica l guidelines; provided that
the report shall be subject to the con ditions in subsection C of
this section;
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11. The P&T committee must review and make a formu lary decision
on a new U.S. Food and Drug Administration approved drug with in
ninety (90) days of such drug's approval, or must provide a clinical
justification if this timeframe is not met;
12. The P&T committee must review procedures for medical review
of, and transitioning new plan enrollees to, appropriate formulary
alternatives to ensure that such procedures a ppropriately address
situations involving enrollees stabilized on drugs that are not on
the health plan formulary (or that are on formulary but subject to
prior authorization, step therapy, or other utilization management
requirements).
C. The health insurer, its agents, including pharmacy benefits
managers, and the Department shall not publish or otherwise disclose
any confidential, proprietary information, including , but not
limited to, any information that would reveal the identi ty of a
specific health plan, the prices charged for a specific drug or
class of drugs, the amount of any rebates provided for a specific
drug or class of drugs, the ma nufacturer, or that would otherwise
have the potential to compromise the financial, co mpetitive, or
proprietary nature of the information. Any such information sha ll
be protected from disclosure as confidential and proprietary
information, is not a public record as defined in the Oklahoma Open
Records Act, Section 24A.1 et seq. of Title 51 of the Oklaho ma
Statutes, and shall not be disclosed directly or indirectly. A
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health insurer shall impose the confidentiality protections of this
section on any vendor or downstream third party that performs health
care or administrative services on behalf of the pharmac y benefits
manager that may receive or have access to rebate information.
SECTION 8. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6962.2 of Title 36, unless there
is created a duplication in numbering, reads as follows:
A. An enrollee's defined cost sharin g for each prescription
drug shall be calculated at the point of s ale based on a price that
is reduced by an amount equal to at least eighty-five percent (85%)
of all rebates received, or to be received, in connection with the
dispensing or administration of the prescription drug.
B. For any violation of this section, the Insurance
Commissioner may subject a PBM to an administrative penalty of not
less than One Hundred Dollars ( $100.00) nor more than Five Thousand
Dollars ($5,000.00) for each occurrence. Such administrative
penalty may be enforced in the same manner in w hich civil judgments
may be enforced.
C. Nothing in subsections A and B of this section shall
preclude a PBM from decreasing an enrollee 's defined cost sharing by
an amount greater than that required under subsection A of this
section.
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D. In implementing the requi rements of this section, the state
shall only regulate a PBM to the extent permissible under applicable
law.
E. In complying with the provisi ons of this section, a PBM or
its agents shall not publish or otherwise reveal information
regarding the actual amount of rebates a PBM receives on a product
or therapeutic class of products , manufacturer, or pharmacy -specific
basis. Such information is p rotected as a trade secret, is not a
public record as defined in the Oklahoma Open Records Act, Section
24A.1 et seq. of Title 51 of the Oklahoma Statutes and shall not be
disclosed directly or indirectly, or in a manner that would allow
for the identification of an indivi dual product, therapeutic class
of products, or manufacturer, or in a manner that would have the
potential to compromise the financial, compe titive, or proprietary
nature of the information. A PBM shall impose the confidentiality
protections of this secti on on any vendor or downstream third party
that performs health care or administrative services on behalf of
the insurer that may receive or have access to rebate information.
SECTION 9. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6970 of Title 36, unless there
is created a duplication in numbering, reads a s follows:
A. For purposes of this section:
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1. "Defined cost sharing " means a deductible payment or
coinsurance amount imposed on an enrollee for a cove red prescription
drug under the enrollee's health plan;
2. "Insurer" means any health insurance issue r that is subject
to state law regulating insurance and offers health insuranc e
coverage, as defined in 42 U.S.C. , Section 300gg-91, or any state or
local governmental employer plan;
3. "Price-protection rebate" means a negotiated price
concession that accrues directly or indirectly to the insurer, or
other party on behalf of the i nsurer, in the event of an increase in
the wholesale acquisition cost of a d rug above a specified
threshold;
4. "Rebate" means:
a. negotiated price concessions including , but not
limited to, base price concessions (whether described
as a rebate or otherwise) and reasonable estimates of
any price-protection rebates and performance -based
price concessions that may accrue directly or
indirectly to the insurer during the coverage yea r
from a manufacturer, dispensing pharmacy, or other
party in connection with the dispensing or
administration of a prescription drug, and
b. reasonable estimates of any negotiated price
concessions, fees, and other administrative costs that
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are passed through, or are reasonably anticipated to
be passed through, to the insurer and s erve to reduce
the insurer's liabilities for a prescription drug.
B. An enrollee's defined cost sharing for each prescription
drug shall be calculated at the point of sale based on a price that
is reduced by an amount equal to a t least eighty-five percent (85%)
of all rebates received, or to be received, in connection with the
dispensing or administration of the prescription drug.
C. For any violation of this section, the Insura nce
Commissioner may subjec t an insurer to an administrative penal ty of
not less than One Hundred Dollars ($100.00) nor more than Five
Thousand Dollars ($5,000.00) for each occurrence. Such
administrative penalty may be enforced in the same manner in whic h
civil judgments may be en forced.
D. Nothing in subsections A through C of this section shall
preclude an insurer fro m decreasing an enrollee 's defined cost
sharing by an amount greater than that required under subsection B
of this section.
E. In implementing the requirements of this section, the state
shall only regulate an insurer to the extent permissible under
applicable law.
F. In complying with the provisio ns of this section, an insurer
or its agents shall not publish or otherwise reveal informati on
regarding the actual amount of rebates an insurer receives on a
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product or therapeutic class of pr oducts, manufacturer, or pharmacy -
specific basis. Such information is protected as a trade secret, is
not a public record as defined in the Oklahoma Open Records Act,
Section 24A.1 et seq. of Title 51 of the Oklahoma St atutes, and
shall not be disclosed directly or indirectly, or in a manner that
would allow for the identification of an individual pro duct,
therapeutic class of product s, or manufacturer, or in a manner that
would have the potential to compromise the financial, competitive,
or proprietary nature of the information. An insurer shall impose
the confidentiality protections of this section on any vendor or
downstream third party that performs health care or administrative
services on behalf of the insurer and that may receive or have
access to rebate information.
SECTION 10. This act shall become effective November 1, 2022.
58-2-8520 KN 01/17/22