Oklahoma 2022 2022 Regular Session

Oklahoma Senate Bill SB1635 Introduced / Bill

Filed 01/20/2022

                     
 
 
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STATE OF OKLAHOMA 
 
2nd Session of the 58th Legislature (2022) 
 
SENATE BILL 1635 	By: Jett 
 
 
 
 
 
AS INTRODUCED 
 
An Act relating to pharmacy benefits managers; 
amending 36 O.S. 2021, Sections 696 0 and 6962, which 
relate to definitions and compliance review; 
modifying definitions; prohibiting certain actions by 
pharmacy benefits managers; providing enforcement 
measures for certain violatio ns of the Patient’s 
Right to Pharmacy Choice Act to the Insurance 
Commissioner over pharmacy benefits managers ; 
directing deposit of certain attorney fees ; updating 
statutory language; providing for codific ation; and 
providing an effective date . 
 
 
 
 
 
BE IT ENACTED BY THE PEOPLE OF THE STATE OF 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.  “Clawback” means the act of recovering from the dispensing 
pharmacy and keeping as a profit the difference between a patient’s 
co-payment and the pharmacy drug cost when the co -payment exceeds 
the pharmacy drug cost;   
 
 
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1. 2. “Health insurer” means any corporation, association, 
benefit society, exchange, partnership or individual l icensed by the 
Oklahoma Insurance Code; 
2. 3. “Mail-order pharmacy” means a pharmacy licensed by this 
state that primarily dispen ses and delivers covered drugs via common 
carrier; 
3. 4. “Pharmacy benefits manager ” or “PBM” means a person that 
performs pharmacy benefits management and any other person acting 
for such person under a contractual or employment relationship in 
the performance of pharmacy benefits management for a mana ged-care 
company, nonprofit hospital, medical service organization, insurance 
company, third-party payor or a health program administ ered by a 
department of this state; 
4. 5. “Pharmacy and therapeutics commit tee” or “P&T committee” 
means a committee at a h ospital or a health insurance plan that 
decides which drugs will appear on t hat entity’s drug formulary; 
5. 6. “Retail pharmacy network” means retail pharmacy providers 
contracted with a PBM in which the phar macy primarily fills and 
sells prescriptions via a retail, storefront location; 
6. 7. “Rural service area” means a five-digit ZIP code in which 
the population density is less tha n one thousand (1,000) individuals 
per square mile;   
 
 
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7. 8. “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. 9. “Urban service area” means a five-digit ZIP code in which 
the population density is greater th an three thousand (3,000) 
individuals per square mile. 
SECTION 2.     AMENDATORY     36 O.S. 2021, Section 6962, is 
amended to read as follows: 
Section 6962. A.  The Oklahoma Insurance Department shall 
review and approve retail pharmacy network access for all pharmacy 
benefits managers (PBMs) to ensure compliance with Section 4 of this 
act Section 6961 et seq. of this title. 
B.  A PBM, or an agent of a P BM, shall not: 
1. Cause or knowingly permit the use 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 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 paym ent services related to 
participation in a retai l pharmacy network;   
 
 
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3.  Reimburse a pharmacy or pharmacist 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 providing the same c overed 
services.  The reimbursement amount paid to the pharmacy shall be 
equal to the reimbursem ent amount calculated on a per -unit basis 
using the same generic product identifi er or generic code number 
paid to the PBM-owned or PBM-affiliated pharmacy; 
4.  Deny a pharmacy the opportunity to participate in any 
pharmacy network at preferred participati on status 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 
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 reduce reimbursem ent 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 conducted in compliance with Sections 
356.2 and 356.3 of Titl e 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 rend ered in the event a PBM terminates a 
pharmacy or pharmacist from a pharmacy ben efits manager network; or 
8.  Participate in a clawback as defined in Section 1 of this 
act. 
C.  The prohibitions under this sect ion shall apply to contract s 
between pharmacy benefits managers and pharmacists or pharmacies for 
participation in retail pharmacy 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 ind ividual’s out-of-
pocket cost or coverage with re spect to acquisition 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 under a contract with a ny such 
health plan or health insurance coverage does not, 
with respect to such plan or coverage, restrict, 
directly or indirectly, a pharmacy that di spenses 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 i ndividual 
would pay for acquisition of the drug without using 
any health plan or health insurance coverage . 
2.  A pharmacy benefits manager’s contract with a participating 
pharmacist or pharmacy shall not prohibit, restrict or limit 
disclosure of informati on to the Insurance Commiss ioner, law 
enforcement or state and federal governmental officials 
investigating or examining a complaint or conducting a revie w 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 p rocessing system using the National 
Council for Prescription Drug Programs’ current standards to 
communicate information to pharmacies submitting clai m inquiries. 
SECTION 3.     NEW LAW     A new section of law to be codified 
in the Oklahoma Statutes as Section 6966.1 of Title 36, unless there 
is created a duplication in numbering, reads as follows: 
A.  Notwithstanding any other provisions of law, the Insurance 
Commissioner, upon finding a pharmacy benefits manager in violat ion 
of Section 2 of this act , the Commissioner shall issue a cease and 
desist order to the PBM directing it to stop the unlawful practice.  
If the PBM fails or refuses to comply with the order, the 
Commissioner shall hav e the authority to revoke or suspend the PBM’s   
 
 
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license.  The Commissioner shall use his or her authority to the 
extent necessary to obtain the PBM’s compliance with the order.  If 
requested by the Commissioner, the Attorney Gen eral shall offer his 
or her assistance to enforce the order of the Commissioner. 
B.  Reasonable attorney fees shall be awarded the Commissioner 
if judicial action is necessary for the enforcement of the order. 
Fees collected by the Commissioner without assistance of the Office 
of the Attorney General shall be credited to the Insurance 
Commissioner’s Revolving Fund.  Fees collected by the Attorney 
General shall be credited to the Attorney General ’s Revolving Fund. 
SECTION 4.  This act shall become effective November 1, 2022. 
 
58-2-2650 RJ 1/20/2022 3:15:29 PM