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STATE OF OKLAHOMA
2nd Session of the 59th Legislature (2024)
COMMITTEE SUBSTITUTE
FOR
SENATE BILL 1390 By: McCortney
COMMITTEE SUBSTITUTE
An Act relating to pharmacy benefits managers;
amending 36 O.S. 2021, Section s 6960, as amended by
Section 1, Chapter 38, O.S.L. 2022 , 6962, as last
amended by Section 1, Chapter 293, O.S.L. 2023 , 6965,
as amended by Section 2, Chapter 293, O.S.L. 2023 ,
Section 3, Chapter 38, O.S.L. 2022, as amended by
Section 3, Chapter 293, O.S.L. 2023, and 6967 (36
O.S. Supp. 2023, Section s 6960, 6962, 6965, and
6966.1), which relate to the Pati ent’s Right to
Pharmacy Choice Act; defining terms; modifying
definitions; prohibiting certain contract terms from
restricting document disclosure to certain entities;
modifying certain compliance provisions ; conforming
language; construing provisions; providing for rule
promulgation; providing for subpoena of certain
witnesses and records; establishing requirements for
disclosure of protected health information; providing
for censure or license revocation f or certain
noncompliance by a pharmacy benefits manager ;
providing for certai n fines and fees; providing for
restitution; directing deposit of certain fines,
fees, and penalties; creating the Attorney General ’s
Pharmacy Benefits Manager Enforcement Revolving Fund;
establishing fund source; stating p urpose;
establishing provisions re lating to public disclosure
of certain report and certain information obtained by
the Attorney General; updating statutory reference;
updating statutory language; repealing 36 O.S. 2021,
Section 6966, which relates to the Patient’s Right to
Pharmacy Choice Commission; providing for
codification; and declaring an emergency .
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BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 36 O.S. 2021, Section 6960, as
amended by Section 1, Chapter 38, O.S.L. 2022 (36 O.S. Supp. 2023,
Section 6960), is amended to read as follows:
Section 6960. For purposes of the Patient ’s Right to Pharmacy
Choice Act:
1. “Covered entity” means a nonprofit hospital or medical
service organization, insure r, health benefit plan, health
maintenance organization, health program administered by the state
in the capacity of provid ing health coverage, or an employer, labor
union, or other group of persons that provides health covera ge to
persons in this state . This term does not include a health plan
that provides coverage only for accidental injury, specified
disease, hospital indemn ity, disability income, or other limited
benefit health insurance policies and contracts that do not include
prescription drug cov erage;
2. “Health insurer” means any corporation, association, benefit
society, exchange, partnership or individ ual licensed by the
Oklahoma Insurance Code;
2. 3. “Health insurer payor” means a health insurance company,
health maintenance organization , union, hospital and medical
services organization or any entity providing or admin istering a
self-funded health benefit plan;
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3. 4. “Mail-order pharmacy” means a pharmacy licensed by this
state that primarily dispenses and delivers co vered drugs via common
carrier;
4. 5. “Pharmacy benefits manager” or “PBM” means a person,
business, or other entity that performs pharmacy benefits management
and any other person acting for such person under. The term shall
include a person or entity acting on behalf of a PBM in a
contractual or employm ent relationship in the performance of
pharmacy benefits management for a managed-care managed care
company, nonprofit hospital, medical servic e organization, insurance
company, third-party payor or a health program administered by a
department of this state;
6. “Pharmacy benefits management” means a service provided to
covered entities to facilitate the provision s of prescription drug
benefits to covered individuals within th is state including, but not
limited to, negotiating pricing a nd other terms with drug
manufacturers and providers. Pharmacy benefits management may
include any or all of the following servi ces:
a. claims processing, retail network management, and
payment of claims to pharmacies for prescription d rugs
dispensed to covered indiv iduals,
b. administration or management of pharmacy discount
cards or programs,
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c. clinical formulary development and management
services,
d. rebate contracting and administration,
e. patient compliance, therapeutic intervention , and
generic substitution programs,
f. administration or management of mail -order pharmacy
programs, or
g. disease management programs;
5. 7. “Provider” means a pharmacy, as def ined in Section 353.1
of Title 59 of the Oklahoma Statutes or an a gent or representative
of a pharmacy;
6. 8. “Retail pharmacy network ” means retail pharmacy p roviders
contracted with a PBM in which the pharmacy primari ly fills and
sells prescriptions via a retail, storefront location;
7. 9. “Rural service area” means a five-digit ZIP code in which
the population density is less than one thousa nd (1,000) individuals
per square mile;
8. 10. “Spread pricing” means a prescription drug pricing model
utilized by a pharmacy benefits manager in which the PBM charges a
health benefit plan a contracted pri ce for prescription drugs that
differs from the amount the PBM directl y or indirectly pays the
pharmacy or pharmacist for pr oviding pharmacy services;
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9. 11. “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) in dividuals per square mile ; and
10. 12. “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 6962, as
last amended by Section 1, Chapter 293, O.S.L. 2023 (36 O.S. Supp.
2023, Section 6962), is amended to read as follows:
Section 6962. A. The Attorney General shall review and approve
retail pharmacy network access for all p harmacy benefits managers
(PBMs) to ensure complian ce with Section 6961 of this title.
B. A PBM, or an agent of a PBM, shall not:
1. Cause or knowingly pe rmit the use of advertisement,
promotion, solicitation, representation, propo sal or offer that is
untrue, deceptive or misleading;
2. Charge a pharmacist or phar macy 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;
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3. Reimburse a pharmacy or pharmacist in the state an amount
less than the amount that the PBM re imburses a pharmacy owned by or
under common ownership with a PBM for providing the s ame 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 provider the opportunity to participate in any
pharmacy network at preferred participation status if the provider
is willing to accept the terms and condition s that the PBM has
established for other providers as a condition of preferred networ k
participation status;
5. Deny, limit or terminate a provider’s contract based on
employment status of any employee who has an active license to
dispense, despite probation status, wi th the State Board of
Pharmacy;
6. Retroactively deny or re duce reimbursement 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 fraudulentl y, 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 Title 59 of the Oklahoma Statutes;
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7. Fail to make any payment due to a pharmacy or pharmacist for
covered services properly re ndered in the event a PBM terminates a
provider from a pharmacy benef its manager network;
8. Conduct or practice spread pricing, as defined in Section 1
of this act Section 6960 of this title , in this state; or
9. Charge a pharmacist or pharmacy a f ee related to
participation in a re tail pharmacy network including but not limited
to the following:
a. an application fee,
b. an enrollment or participation fee,
c. a credentialing or re-credentialing fee,
d. a change of ownership fee, or
e. a fee for the development or management of claims
processing services or claims payment services.
C. The prohibitions under this section shall apply to contracts
between pharmacy benefits managers and providers for participation
in retail pharmacy networks.
1. A PBM contract shall:
a. not restrict, directly or indirectly, any pharmacy
that dispenses a presc ription 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
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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 any such
health plan or health insurance cover age does not,
with respect to such plan or coverage, restrict,
directly or indirectly, a ph armacy that dispenses a
prescription drug from inf orming, 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 and the amount an individual
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 provider shall
not prohibit, restrict or limit disclosure of information and
documents to the Attorney General, 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, Pharmacy Audit Integrity A ct, and Sections 357
through 360 of Title 59 of the Oklahoma Stat utes.
D. A pharmacy benefits manag er shall:
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1. Establish and maintain an electronic claim inquiry
processing system using the National Council for Prescription Drug
Programs’ Programs current standards to communicate information to
pharmacies submitting claim inqui ries;
2. Fully disclose to insurer s, self-funded employers, unions or
other PBM clients the existence of the re spective aggregate
prescription drug discounts, rebates rece ived from drug
manufacturers and pharmacy audit recoupments;
3. Provide the Attorney General, insurers, self-funded employer
plans and unions unrestricted audit rights of and access to the
respective PBM pharmaceutical manufacturer and provider contracts,
plan utilization data, plan pricing data, pharmacy utilization data
and pharmacy pricing data;
4. Maintain, for no less than three (3) years, documentation of
all network development activities including but not limited to
contract negotiations and any denials to providers to join networks.
This documentation shall be made available to the Attorney General
upon request; and
5. Report to the Attorney General, on a quarterly basis for
each health insurer pay or, on the following information:
a. the aggregate amount of rebates received by t he PBM,
b. the aggregate amount of rebates distributed to the
appropriate health in surer payor,
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c. the aggregate amount of rebates passed on to the
enrollees of each healt h insurer payor at the point of
sale that reduced the applicable deductible,
copayment, coinsure or other cost sharing amount of
the enrollee,
d. the individual and agg regate amount paid by the health
insurer payor to the PBM for pharmacy services
itemized by pharmacy, drug product and service
provided, and
e. the individual and aggreg ate amount a PBM paid a
provider for pharmacy services itemized by pharmacy,
drug product and service provide d.
E. Nothing in the Patient’s Right to Pharmacy Choice Act shall
prohibit the Attorney General from requesting and obtaining detailed
data, including raw data, in response to the information provided by
a PBM in the quarterly reports required by this section. The
Attorney General may alter the frequency of the reports required by
this section at his or her discretion.
F. The Attorney General may promulg ate rules to implement the
provisions of the Patient’s Right to Pharmacy Choice A ct, Pharmacy
Audit Integrity Act, and Sec tions 357 through 360 of Title 59 of the
Oklahoma Statutes.
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SECTION 3. AMENDATORY 36 O.S. 2021, Section 6965 , as
amended by Section 2, Chapter 2 93, O.S.L. 2023 (36 O.S. Supp. 2023,
Section 6965), is amended to read as follows:
Section 6965. A. The Attorney General shall have power and
authority to examine and investigat e the affairs of every pharmacy
benefits manager (PBM) engaged in pharmacy benefits manag ement in
this state in order to determine whet her such entity is in
compliance with the Patient ’s Right to Pharmacy Choic e Act, Pharmacy
Audit Integrity Act, and Section s 357 through 360 of Title 59 of the
Oklahoma Statutes.
B. The Attorney General shall have the power and authority to
subpoena witnesses and records, whether prior to or during an
investigation or prosecution of a complaint, from any relev ant
entity or persons to e nsure compliance with the Pat ient’s Right to
Pharmacy Choice Act, Pharmacy Audit Integrity Act, and Section s 357
through 360 of Title 59 of the Oklahoma Statutes .
C. All PBM files and records shall be subject to examination by
the Attorney General or by duly appointed designees. The Attorney
General, authorized employees and examiners shall have access to any
of a PBM’s files and records that may relate to a particular
complaint under investiga tion or to an inquiry or examin ation by the
Attorney General.
C. D. Every officer, director, employee or agent of the PB M,
upon receipt of any inquiry from the Attorney General, shall, within
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twenty (20) days from the date the inquiry is sent, furnish the
Attorney General with an adequate response to the i nquiry.
D. E. When making an examination under this sectio n, the
Attorney General may retain subject matter experts, attor neys,
appraisers, independent actuaries, independent certified pub lic
accountants or an accounting firm or individual holding a permit to
practice public accounting, cer tified financial examiners o r other
professionals and specialists as examiners, the cost o f which shall
be borne by the PBM that is the subject of the examination.
F. 1. Protected health information held by a PBM shall be
provided at the request of the Atto rney General for the purpose of
conducting investigations into potential violations of state laws
and regulations related to the PBM. Disclosure of protected health
information shall be l imited to the extent necessary fo r the
investigation and enforcement of state law.
2. All disclosures of protected health information shall be
made in compliance with all applicable federal and state pr ivacy
laws, including the Health Insurance Portability and Acco untability
Act of 1996 (HIPAA), and other relevant laws protecting the privacy
and confidentiality of health information.
3. Any protected health information obtained for an
investigation shall be handled and maintained per applicable federal
and state privacy laws and regulations, including HIP AA.
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4. Unauthorized disclosure of protected health information
obtained during an investigation is strictly prohibited and subject
to legal penalties.
G. 1. If the Attorney General, after notice an d opportunity
for hearing, finds that any PBM operating within th is state has not
fully cooperated with an investigation or inquir y conducted by the
Attorney General related to compliance with the Patient’s Right to
Pharmacy Choice Act, Pharmacy Audit Integrity Act, and Section s 357
through 360 of Title 59 of the Oklahoma Statu tes, the Attorney
General may instruct the Insurance Commissioner that the PBM be
censured or his or her license be revoked. If the Attorney General
makes such instruction, the Insurance Commissioner shall enforce the
instructed action within thirty (30) days.
2. In addition to or in lieu of any censu re, suspension, or
revocation by the Insurance Commissioner, the Attorney General may
levy a civil fine not less than One Thousand Dollars ($1,000.00) and
not greater than Ten Thousand Dollars ($10,000.00) fo r each
violation of this subsection and assess any other penalty or remedy
authorized by this act. For purposes of this section, each day a
PBM fails to comply with an investiga tion or inquiry may be
considered a separate violation.
SECTION 4. AMENDATORY Section 3, Chapter 38, O.S .L.
2022, as amended by Section 3, Chapter 293, O.S.L . 2023 (36 O.S.
Supp. 2023, Section 6966.1), i s amended to read as follows:
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Section 6966.1. A. The Insurance Commissioner may censure,
suspend, revoke, or refuse to issue or renew a license of or levy a
civil penalty against any person licensed under the insurance laws
of this state for any violation of the Patient’s Right to Pharmacy
Choice Act, Section 6958 et seq. o f this title.
B. 1. If the Attorney General finds, after notice and
opportunity for hearing, that a pharmacy benefits manager (PBM)
violated one or more provisions of the Patient’s Right to Pharmacy
Choice Act, the Pharmacy Audit Integrity Act or the provisions of
Sections 357 through 360 of Title 59 of the Oklahoma Statues
Statutes, the Attorney General may recommend instruct the Insurance
Commissioner that the PBM be censured, or his or her license may be
suspended or revoked and a penalty or remedy authorized by this act
may be imposed. If the Attorney General makes such recommendation
instruction, the Insurance Commissioner shall take the recommended
action enforce such action within thirty (30) days.
2. In addition to or in lieu of any censure, suspension or
revocation of a license by the Insurance Commissioner, a PBM the
Attorney General may be subject to levy a civil or administrative
fine of not less than One Hundred Dollars ($100.00) One Thousand
Dollars ($1,000.00) and not greater than Ten Thousand Dollars
($10,000.00) for each violation of the provisions of the Patient’s
Right to Pharmacy Choice Act, the Pharmacy Audit Integri ty Act or
the provisions of Sections 357 through 360 of Title 59 of the
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Oklahoma Statues, following notice and an opportunity for a hearing
Statutes.
3. The Attorney General may order restitution for economic loss
suffered by pharmacies or patients for violatio ns of the Patient’s
Right to Pharmacy Choice Act, Pharmacy Audit Integrity Act, or the
provisions of Sections 357 through 360 of Title 59 of the Oklahoma
Statutes.
C. Notwithstanding whether the license of a PBM has been
issued, suspended, revoked, surrendered or lapsed by operation of
law, the Attorney General is hereby authorized to enforce the
provisions of the Patient ’s Right to Pharmacy Cho ice Act and impose
any penalty or remedy authorized under the act against a PBM under
investigation for or charg ed with a violation of the P atient’s Right
to Pharmacy Choice Act, the Pharmacy Audit Integrity Act, the
provisions of Sections 357 through 360 of Title 59 of the Oklahoma
Statues Statutes or any provision of the insurance laws of this
state.
D. Each day that a PBM conducts business in this sta te without
a license from the Insurance Department shall be deemed a violation
of the Patient’s Right to Pharmacy Choice Act.
E. 1. All hearings conducted by the Office of the Attorney
General pursuant to this section shall be public and held in
accordance with the Administrative Procedures Act.
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2. Hearings shall be held at the office Office of the Attorney
General or any other place the Attorney General may deem convenient.
3. The Attorney General, upon written request from a PBM
affected by the hearing, shall cause a f ull stenographic record of
the proceedings to be made by a competent court reporter . This
record shall be at the expense of the PBM.
4. The ordinary fees and costs of the hearing examiner
appointed pursuant to Section 319 of this title may be assessed by
the hearing examiner against the respondent unless the respon dent is
the prevailing party.
F. Any PBM whose license has been censured, suspended, revoked
or denied renewal or who has had a fine levied against him or her
shall have the right of appeal from the final order of the Attorney
General, pursuant to Section 318 et seq. of Title 75 of the Oklahoma
Statutes.
G. If the Attorney General determines, based upon an
investigation of complaints, that a PBM has engaged in violations of
the provisions of the Patient’s Right to Pharmacy Choice Act,
Pharmacy Audit Integrity Act, and Section 357 through 360 of Title
59 of the Oklahoma Statutes with such frequency as to indicate a
general business practice, and that the PBM should be subjected to
closer supervision with respect to thos e practices, the Attorney
General may require the PBM to file a report at any periodic
interval the Attorney General deems necessary.
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H. 1. The Attorney General shall have the authority to c ollect
all fines, penalties, restitution, and interest thereon pursuant to
the provisions of the Patient’s Right to Pharmacy Choice Act,
Pharmacy Audit Integrity Act, and the provisions of Sections 357
through 360 of Title 59 of the Oklahoma Statutes, or any other
charge, cause of action, judgment, prelitigation settlement , or
other settlement that requires the recovery of money as a result of
violations of the Patient’s Right to Pharmacy Choice Act. Funds
collected by the Attorney General pursuant to the Patient’s Right to
Pharmacy Choice Act, Pharmacy Audit Integrity Act, and Section s 357
through 360 of Title 59 of the Oklahoma Statutes shall be deposited
into the Attorney General’s Pharmacy Benefits Manager Enforcement
Revolving Fund.
2. Costs of investigation, litigation, attorney f ees, and other
expenses incurred shall be re tained by the Office of the Attorney
General. Remaining funds shall be distributed to phar macists,
patients, or other injured parties as determined by the Attorney
General.
3. The Attorney General shall prom ulgate rules for the
distribution of fund s pursuant to this subsection.
SECTION 5. NEW LAW A new section of law to be c odified
in the Oklahoma Statutes as Section 6966.2 of Title 36, unless there
is created a duplication in numbering, reads as follows:
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There is hereby created in the State Tr easury a revolving fund
for the Office of th e Attorney General, to be designat ed the
“Attorney General’s Pharmacy Benefits Manager Enforcement Revolving
Fund”. The fund shall be a continuing fund, not subject to fiscal
year limitations, and shall consist of any monies collected by the
Attorney General and designated to the fund by law , including those
levied for activities related to enforcement of th e Patient’s Right
to Pharmacy Choice Act, the Pharmacy Audit Integrity Act, and the
provisions of Sections 3 57 through 360 of Title 59 of the Okl ahoma
Statutes. All monies accruing to the credit of the fund are hereby
appropriated and may be budgeted and expended by the Attorney
General for the purposes provided in this section. Expenditures
from the fund shall be made upon warrants issued b y the State
Treasurer against claims filed as pre scribed by law with the
Director of the Office of Management and En terprise Services for
approval and payment.
SECTION 6. AMENDATORY 36 O.S. 2021, Section 6967, is
amended to read as fol lows:
Section 6967. A. Documents, evidence, materials, records,
reports, complaints or other information in the possession or
control of the Office of the Attorney General or Insurance
Department or the Right to Pharma cy Choice Commission that are is
obtained by, created by or disclosed to the Office of the Attorney
General or Insurance Commissioner, Pharmacy Choice Commission or any
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other person in the course of an evaluation, examinat ion,
investigation or review made pursuant to the provisions of the
Patient’s Right to Pharmacy Choic e Act, the Pharmacy Integrity Audit
Integrity Act or Sections 357 through 360 of Title 59 of the
Oklahoma Statutes, except as provided in subsection C of this
section, shall be confidential by law and privileged, shall not be
subject to open records request, shall not be subject t o subpoena
and shall not be subject to discovery or admissible in evidence in
any private civil action if obtained from the Attorney General,
Insurance Commissioner , the Pharmacy Choice Commission or any
employees or representatives of the Attorney General or Insurance
Commissioner.
B. Nothing in this section shall prevent the discl osure of a
final order issued against a pharmacy benefits manager by the
Attorney General or Insurance Commissioner or Pharmacy Choice
Commission. Such orders shall be open reco rds.
C. Nothing in this section shall prevent t he Attorney General
from making public, in the form of an examination report, any
findings from an examination pursuant to Section 6965 of this title.
It shall be the Attorney General ’s sole discretion to determine
whether it is in the public’s interest to publish these findings.
Only the final examination report shall be made public. Any
documents, evidence, materials, rec ords, reports, complaints, or
other information in possession or control of the Attorney General
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obtained through the examination shall be confidential by law and
privileged, shall not be subject to the Oklahoma Open Records Act,
shall not be subject to subpoena, and shall not be subject to
discovery or admissible evidence in any pri vate civil action if
obtained from the Att orney General.
D. In the course of any hearing made p ursuant to the provisions
of the Patient’s Right to Pharmacy Choice Act, the Phar macy
Integrity Audit Integrity Act or Sections 357 through 360 of Title
59 of the Oklahoma Statutes, nothing in this section shall be
construed to prevent the Insuranc e Commissioner or any employees or
representatives of the Insurance Comm issioner from presenting
admissible documents, evidence, materials, records, reports or
complaints to the adjudicating authority.
SECTION 7. REPEALER 36 O.S. 2021, Section 6966, is
hereby repealed.
SECTION 8. It being immediately necessary for the preservat ion
of the public peace, health or safety, an emergency is hereby
declared to exist, by reason whereof this act sh all take effect and
be in full force from and after its passage and approval.
59-2-3533 RD 2/20/2024 4:13:14 PM