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SENATE FLOOR VERSION
February 21, 2022
SENATE BILL NO. 1860 By: McCortney of the Senate
and
McEntire of the House
An Act relating to the Patient’s Right to Pharmacy
Choice Act; amending 36 O.S. 2021, Sections 6960,
6961, 6962, and 6963 , which relate to definitions,
retail pharmacy network access standards, compliance
review, and health insurer monitoring ; adding
definitions of pharmacy benefits manageme nt and
retail pharmacy; modifying definitions; specifying
access standards; modifying prohibition on pharmacy
benefits managers; modifying certain contract
restrictions; updating statutory referen ce; modifying
certain prohibitions on health insurers and ph armacy
benefits managers; conforming language; repealing 36
O.S. 2021, Section 6964, which relates to health
insurer formularies; updating statutory language; and
providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKL AHOMA:
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:
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1. “Health insurer” means any corporation, association, benefit
society, exchange, partnership or individual licensed by the
Oklahoma Insurance Code;
2. “Mail-order pharmacy” means a pharmacy licensed by this
state that primarily dispenses 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 network
administration including decisions related to provider
network participation status,
b. drug rebate contract negoti ation 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 pharmacy benefits management activities and any
other person or entity acting for such a person or entity performing
pharmacy benefits management activities . 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
Notwithstanding any other provision within the Patient’s Right to
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Pharmacy Choice Act, a self-funded plan administered by an employee
or organized labor union who negotiates and executes all provider
contracts directly with a pharmacy services administrative
organization, and a pharmacy provider who does not use a pharmacy
services administrative organization shall not be deemed a pharmacy
benefits manager of its own group health plan and shall not be
restricted in its ab ility to design and manage its own group health
plan;
4. “Pharmacy and therapeutics 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 Board of Pharmacy or an agent or representative of a p harmacy;
5. 6. “Retail pharmacy network” means retail pharmacy providers
contracted with a PBM in which the pharmacy primarily fills and
sells prescriptions via a retail, storefront location;
6. 7. “Rural service area” means a five-digit ZIP code in whic h
the population density is less than one thousand (1,000) individuals
per square mile;
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 sq uare mile; and
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8. 9. “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 2. AMENDATORY 36 O.S. 2021, Section 6961, is
amended to read as follows:
Section 6961. A. Pharmacy benefits managers (PBMs) shall
comply with the following retail pharmacy network access standards:
1. At least ninety percent (90%) of cov ered individuals
residing in an each urban service area live within t wo (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 designated as a preferred participating pharmacy
in the PBM’s retail pharmacy network;
3. At least ninety percent (90%) of covered 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 perc ent (90%) of covered individuals
residing in a each suburban service area live within seven (7) miles
of a retail pharmacy designated as a preferred participati ng
pharmacy in the PBM’s retail pharmacy network;
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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 individuals
residing in a each rural service area li ve within eighteen (18)
miles of a retail pharmacy designated as a preferred participating
pharmacy in the PBM’s retail pharmacy network.
B. Mail-order pharmacies shall not be used to meet access
standards for retail pharmacy ne tworks.
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 drugs regardless of d ay 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 prov iders unless it
specifically lists all pharmacies, hospitals and prov iders
participating in the preferred and nonpreferred pharmacy and health
networks.
SECTION 3. 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 net work access for all pharmacy
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benefits managers (PBMs) to ensure compliance with Section 4 of this
act 6961 of this title.
B. A PBM, or an agent of a PBM, shall not:
1. Cause or knowingly permit the use of advertisement,
promotion, solicitation, represent ation, 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 re tail pharmacy
network, or
c. the development or management of claims proces sing
services or claims payment services related to
participation in a retail pharmacy network;
3. Reimburse a pharmacy or pharmacist in the state an amount
less than the amount th at the PBM reimburses a pharmacy 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 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 opportunity to participate in any form
of pharmacy network at preferred participation status , whether in-
network, preferred or other wise, if the pharmacy is willing to
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accept the terms and conditions that th e PBM has established for
other pharmacies as a condition of preferred network for
participation status in the network or networks of the pharmacy ’s
choice;
5. Deny, limit or termi nate a pharmacy’s contract based on
employment status of any employee who h as an active license to
dispense, despite probation status, with the State Board of
Pharmacy;
6. Retroactively deny or reduce reimbursement for a cove red
service claim after return ing 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 wit h 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 pharmacy benefits manager network.
C. The prohibitions under this section shall apply to contracts
between pharmacy benefits manag ers 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 pharmac ist in any way for disclosing to an
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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 f rom informing, or
penalize such pharmacy for informing, an individual of
any differential between the ind ividual’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 coverage does not,
with respect to such plan or cover age, 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 wi th 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
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availability of alternate therapies, consultations , or
tests,
c. the decision of utilizat ion reviewers or similar
persons to authorize or deny services, and
d. the process that is used to authorize or deny
healthcare services and structures used by the health
insurer.
2. Provider contracts shall not prohibit a ph armacy or
pharmacist from disc ussing information regarding the total cost of
pharmacist services for a pr escription drug or from selling a more
affordable alternative to the covered person if such alternative is
available.
A pharmacy benefits manager ’s contract with a participating
pharmacist or pharmacy 3. Provider contracts 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.
3. 4. A pharmacy benefits manager shall establish and maintain
an electronic claim inquiry processing sys tem using the National
Council for Prescription Drug Programs’ current standards to
communicate informati on to pharmacies submitting claim inquiries.
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SECTION 4. AMENDATORY 36 O.S. 2021, Section 6963, is
amended to read as follows:
Section 6963. A. A hea lth insurer shall be responsible 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 are met.
B. Whenever a health insurer performs pharmacy benefit
management on its own behalf or contracts with another person or
entity to perform activities required under this act pharmacy
benefit 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 are met.
C. An individual may be notified at the point of sale when the
cash price for the purchase of a prescription d rug is less than the
individual’s copayment or coinsurance price for the purchase of the
same prescription drug.
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 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 nonpreferred network, a retailer
pharmacy, mail-order pharmacy, or any other pharmacy . A health
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insurer or PBM shall not r estrict such a patient’s choice of in-
network pharmacy providers . Such A health insurer or PBM sha ll not
require or incentivize using individuals by:
1. Using any discounts in cost -sharing or a reduction in copay
or the number of copays to individuals to receive prescription drugs
from an individual’s choice of in-network pharmacy from an
individual’s choice of in-network pharmacy; or
2. Differentiating between in -network pharmacies, whether that
pharmacy is in a preferred or nonpr eferred network, a reta il
pharmacy, mail order pharmacy, or any other type of pharmacy.
The provisions of this subsection s hall not apply to any plan
subject to regulation under Medicare Part D, 42 U.S.C. Section
1395w-101, et seq.
F. A health insurer, pha rmacy or PBM shall adhe re to all
Oklahoma laws, statutes and rules when mailing, shipping and/or
causing to be mailed or s hipped 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 effec tive November 1, 202 2.
COMMITTEE REPORT BY: COMMITTEE ON RETIREMENT AND INSURANCE
February 21, 2022 - DO PASS