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SENATE FLOOR VERSION
April 11, 2022
AS AMENDED
ENGROSSED HOUSE
BILL NO. 3512 By: McEntire, Talley,
Fetgatter, Johns, Moore,
Frix, Dollens, Sims, West
(Tammy), Hasenbeck,
Townley, Dobrinski, Kerbs,
May, Lawson, Hilbert, Pae,
Kendrix, Roberts (Eric),
Phillips, Roe, Fugate, and
Grego of the House
and
McCortney and Garvin of the
Senate
[ Patient's Right to Pharmacy Choice Act - retail
pharmacy network access standards - pharmacy benefits
managers - ability of a pharmacy to disclose certain
health care and cost information - patient choices of
in-network pharmacy - repealer - effective date ]
BE IT ENACTED BY THE PEOPLE OF THE STATE O F OKLAHOMA:
SECTION 1. 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. "Health insurer" means any corporation, association, benefit
society, exchange, partnership or individual licensed by the
Oklahoma Insurance Code;
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2. "Mail-order pharmacy" means a pharmacy licensed by this
state that primarily di spenses and delivers covered drugs via common
carrier;
3. "Pharmacy benefits management " means any or all of the
following activities:
a. provider contract negotiation and/or provider n etwork
administration including decisions related to provider
network participation status,
b. drug rebate contract negotiation or drug rebate
administration, and
c. claims processing which may include claim billing and
payment services;
4. "Pharmacy benefits manager" or "PBM" means a person or
entity that performs pharmac y benefits management activities and any
other person or entity acting for such a person under a contractual
or employment relationship in the performance of pharmacy benefits
management for a managed-care company, nonprofit hospital, medical
service organization, insurance company, third-party payor or a
health program administered by a department of this state or entity
performing pharmacy benefits management activities. Notwithstanding
any other provision within the Patient's Right to Pharmacy Choice
Act, a self-funded plan administered by an employer or organized
labor union who negotiates and executes all provider contracts
directly with a pharmacy or the pharmacy 's contracted pharmacy
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services administrative organization, and a pharmacy provider who
does not use a pharmacy services administrative organi zation shall
not be deemed a pharmacy benefit s manager of its own group health
plan and shall not be restricted in its ability to des ign and manage
its own group health plan;
4. "Pharmacy and therapeuti cs committee" or "P&T committee"
means a committee at a hospital or a health insurance plan that
decides which drugs will appear on that entity 's drug formulary;
5. "Retail pharmacy" or "provider" means a pharmacy, as defined
in Section 353.1 of Title 59 of the Oklahoma Statutes, licensed by
the State Board of Pharmacy or an agent or representative of a
pharmacy;
6. "Retail pharmacy network " means retail pharmacy providers
contracted with a PBM in which the pharmacy primarily fills and
sells prescriptions via a retail, st orefront location;
6. 7. "Rural service area" means a five-digit ZIP code in which
the population density is less than one thousand (1,000) individuals
per square mile;
7. 8. "Specialty drug" means prescription medication that
requires special handling, administration, or monitoring and is used
for the treatment of patients with serious health conditions
requiring complex therapies. Specialty drugs shall also include
drugs that are limited in distribution by the manufacturer and may
be purchased only at specialty pharmacies;
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9. "Suburban service area" means a five-digit ZIP code in which
the population density is between one thousand (1,000) and three
thousand (3,000) individuals per square mile; and
8. 10. "Urban service area" means a five-digit ZIP code in
which the population densit y is greater than three thousand (3,000)
individuals per square mile.
SECTION 2. AMENDATORY 36 O.S. 2021, Sectio n 6961, is
amended to read as follows:
Section 6961. A. Pharmacy benefits managers (P BMs) shall
comply with the follow ing retail pharmacy network access standards:
1. At least ninety percent (90%) of covered individuals
residing in an each urban service area live within two (2) miles of
a retail pharmacy participating in the PBM's retail pharmacy
network;
2. At least ninety percent (90%) of covered individuals
residing in an each urban service area live within five (5) miles of
a retail pharmacy designa ted as a preferred participating pharmacy
in the PBM's retail pharmacy network;
3. At least ninety percent (90%) of cov ered individuals
residing in a each suburban service area live within five (5) miles
of a retail pharmacy participating in the PBM 's retail pharmacy
network;
4. At least ninety percent (90%) of covered individuals
residing in a each suburban service area live within seven (7) miles
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of a retail pharmacy designated as a preferred participating
pharmacy in the PBM's retail pharmacy network;
5. At least seventy percent (70%) of covered individuals
residing in a each rural service area live within fifteen (15) miles
of a retail pharmacy participating in the PBM 's retail pharmacy
network; and
6. At least seventy percent (70%) of covered indivi duals
residing in a each rural service area live within eighteen (1 8)
miles of a retail pharmacy designated as a preferr ed participating
pharmacy in the PBM's retail pharmacy network.
B. Mail-order pharmacies shall not be used to meet access
standards for retail pharmacy networks.
C. Pharmacy benefits managers shall not require patients to use
pharmacies that are directly or indirectly owned by the or
affiliated with a pharmacy benefits manager , including all regular
prescriptions, refills or specialty dr ugs regardless of day supply.
D. Pharmacy benefits managers shall not in any manner on any
material, including but not limited to mail and ID cards, include
the name of any pharmacy, hospital or other providers unless it
specifically lists all pharmacies, hospitals and providers
participating in the preferred and nonpref erred pharmacy and h ealth
networks.
SECTION 3. AMENDATORY 36 O.S. 2021, Section 6962, is
amended to read as follows:
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Section 6962. A. The Oklahoma Insurance Department shall
review and approve retail pharmacy network access for al l pharmacy
benefits managers (PBMs) to ensure compliance with Section 4 6961 of
this act title.
B. A PBM, or an agent of a PBM, shall not:
1. Cause or knowingly permit the use of a dvertisement,
promotion, solicitation, representation, proposal or offer t hat is
untrue, deceptive or misleading;
2. Charge a pharmacist or pharmacy a fee related to the
adjudication of a claim , including without limitation a fee for:
a. the submission of a claim,
b. enrollment or participation in a retail pharmacy
network, or
c. the development or management of claims processing
services or claims payment services related to
participation in a retail pharmacy network;
3. Reimburse a pharmacy or pharmacis t in the state an amount
less than the amount that the PBM reimburses a ph armacy owned by or
under common ownership with a PBM for providing the same covered
services. The reimbursement amount paid to the pharmacy shall be
equal to the reimbursement amoun t 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;
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4. Deny a pharmacy the opportunity to participate in any form
of pharmacy network at preferred participatio n status, whether in-
network, preferred, or otherwise, if the pharmacy is willing to
accept the terms and conditions that the PBM has established for
other pharmacies as a condition of preferred network for
participation status in the network or networks o f the pharmacy's
choice;
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 reduce reimb ursement for a covered
service claim after returning a paid claim response as part of the
adjudication of the claim, unless:
a. the original claim was submitted fraudulently, or
b. to correct errors identified in an audit, so long as
the audit was conducte d in compliance with Sections
356.2 and 356.3 of Title 59 of the Oklahoma Statutes;
or
7. Fail to make any payment due to a pharmacy or pharmacist for
covered services properly rendered in the event a PBM terminates a
pharmacy or pharmacist from a pharmac y benefits manager network.
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C. The prohibitions under this section shall apply to contracts
between pharmacy benefits managers and pharmacists or pharmacies
providers for participation in retail pharmacy networks.
1. A PBM provider contract shall not prohibit, restrict, or
penalize a pharmacy or pharmacist in any way for discl osing to an
individual any health care information that the pharmacy or
pharmacist deems appropriate regarding :
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 acquisition of
the drug and the amount an individual would pay to
purchase the drug directly the nature of treatment,
risks, or alternatives to the prescription drug being
dispensed, and
b. ensure that any entity that provides pharmacy benefits
management services under a contract with any such
health plan or health insurance co verage 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
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cost under the plan or coverage with respect to
acquisition of the drug and the amount an individual
would pay for acquisition of the drug without using
any health plan or health insurance coverage the
availability of alternate therapies, consultations, or
tests,
c. the decision of utilization reviewers or simil ar
persons to authorize or deny services, and
d. the process that is used to authorize or deny health
care services and structures used by the health
insurer.
2. A pharmacy benefits manager's contract with a participating
pharmacist or pharmacy Provider contracts shall not prohibit a
pharmacy or pharmacist from discussing information re garding the
total cost of pharmacist services for a prescription drug or from
selling a more affordable al ternative to the covered person if such
alternative is available.
3. Provider contract s shall not prohibit, restrict or limit
disclosure of information to the Insurance Commissioner, law
enforcement or state and federal governmental officials
investigating or examining a complaint or conducting a review of a
pharmacy benefits manager's compliance with the requirements under
the Patient's Right to Pharmacy Choice Act.
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3. 4. A pharmacy benefits manager shall establish and maintain
an electronic claim inquiry processing system using the National
Council for Prescription Dru g Programs' current standards to
communicate information to pharmacies submitting claim inquiries.
SECTION 4. AMENDATORY 36 O.S. 2021, Section 6963, is
amended to read as follows:
Section 6963. A. A health insurer shall be respons ible for
monitoring all activities carried out by, or on behalf of, the
health insurer under the Patient 's Right to Pharmacy Choice Act, and
for ensuring that all requirements of this act Section 6958 et seq.
of this title are met.
B. Whenever a health in surer performs pharmacy benefits
management on its own behalf or contracts with another person or
entity to perform activities required under this act pharmacy
benefits management, the health insurer shall be responsible for
monitoring the activities and conduct of that person or entity with
whom the health insurer contracts and for ensuring that the
requirements of this act Section 6958 et seq. of this title are met.
C. An individual may be notified at the point of sale when the
cash price for the purchas e of a prescription drug is less than the
individual's copayment or coinsurance price for the purchase of the
same prescription drug.
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D. A health insurer or pharmacy benefits manager (PBM) shall
not restrict an individual's choice of in-network provider for
prescription drugs.
E. An individual's 1. A patient's choice of in-network
provider may include a retail an in-network pharmacy or a, whether
that pharmacy is in a preferred or n onpreferred network, a retail
pharmacy, mail-order pharmacy, or any other pharmacy. A health
insurer or PBM shall not restrict such a patient's choice of in-
network pharmacy providers . Such A health insurer or PBM shall not
require or incentivize using individuals by:
a. using any discounts in cost-sharing or a reduction in
copay or, the number of copays, or any other patient -
copay equivalent to individuals to receive
prescription drugs from an individual 's choice of in-
network pharmacy, or
b. using financial incentives to differentiate between
in-network pharmacies, wheth er that pharmacy is in a
preferred or nonpreferred network, a retail pharmacy,
mail-order pharmacy, or any other type of pharmacy .
2. Nothing in this subsection shall be construed to p rohibit a
person or entity participating in pharmacy benefits managemen t
activities from direct ing a patient to use a specific pharmacy for
the purchase of a specialty drug as defined in paragraph 8 of
Section 6960 of this title in the event the patient 's chosen in-
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network pharmacy is unable to purchase and dispense the specialty
drug.
F. A health insurer, pharmacy or PBM shall adhere to all
Oklahoma laws, statutes and rules when mailing, shipping and/or
causing to be mailed or shipped prescription drugs into the State of
Oklahoma this state.
SECTION 5. REPEALER 36 O.S. 2021, Section 6964, is
hereby repealed.
SECTION 6. This act shall become effective November 1, 2022.
COMMITTEE REPORT BY: COMMITTEE ON RETIREMENT AND INSURAN CE
April 11, 2022 - DO PASS AS AMENDED