By: Schwertner, et al. S.B. No. 332
(Hunter)
A BILL TO BE ENTITLED
AN ACT
relating to the use of maximum allowable cost lists related to
pharmacy benefits.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 1369, Insurance Code, is amended by
adding Subchapter H to read as follows:
SUBCHAPTER H. MAXIMUM ALLOWABLE COST
Sec. 1369.351. DEFINITIONS. In this subchapter:
(1) "Health benefit plan" has the meaning assigned by
Section 1369.251, as added by Chapter 915 (H.B. 1358), Acts of the
83rd Legislature, Regular Session, 2013.
(2) "Pharmacy benefit manager" has the meaning
assigned by Section 4151.151.
Sec. 1369.352. CERTAIN BENEFITS EXCLUDED. This subchapter
does not apply to maximum allowable costs for pharmacy benefits
provided under:
(1) a Medicaid managed care program operated under
Chapter 533, Government Code;
(2) a Medicaid program operated under Chapter 32,
Human Resources Code;
(3) the child health plan program under Chapter 62,
Health and Safety Code;
(4) the health benefits plan for children under
Chapter 63, Health and Safety Code;
(5) a health benefit plan issued under Chapter 1551,
1575, 1579, or 1601; or
(6) a workers' compensation insurance policy or other
form of providing medical benefits under Title 5, Labor Code.
Sec. 1369.353. CRITERIA FOR DRUGS ON MAXIMUM ALLOWABLE COST
LISTS. A health benefit plan issuer or pharmacy benefit manager may
not include a drug on a maximum allowable cost list unless:
(1) the drug:
(A) has an "A" or "B" rating in the most recent
version of the United States Food and Drug Administration's
Approved Drug Products with Therapeutic Equivalence Evaluations,
also known as the Orange Book; or
(B) is rated "NR" or "NA" or has a similar rating
by a nationally recognized reference; and
(2) the drug is:
(A) generally available for purchase by
pharmacists and pharmacies in this state from a national or
regional wholesaler; and
(B) not obsolete.
Sec. 1369.354. FORMULATION OF MAXIMUM ALLOWABLE COSTS;
DISCLOSURES. (a) In formulating the maximum allowable cost price
for a drug, a health benefit plan issuer or pharmacy benefit manager
may only use the price of that drug and any drug listed as
therapeutically equivalent to that drug in the most recent version
of the United States Food and Drug Administration's Approved Drug
Products with Therapeutic Equivalence Evaluations, also known as
the Orange Book.
(b) Notwithstanding Subsection (a), if a therapeutically
equivalent generic drug is unavailable or has limited market
presence, a health benefit plan issuer or pharmacy benefit manager
may place on a maximum allowable cost list a drug that has:
(1) a "B" rating in the most recent version of the
United States Food and Drug Administration's Approved Drug Products
with Therapeutic Equivalence Evaluations, also known as the Orange
Book; or
(2) an "NR" or "NA" rating or a similar rating by a
nationally recognized reference.
(c) A health benefit plan issuer or pharmacy benefit manager
must, in accordance with Subsection (d), disclose to a pharmacist
or pharmacy the sources of the pricing data used in formulating
maximum allowable cost prices.
(d) The information described by Subsection (c) must be
disclosed:
(1) on the date the health benefit plan issuer or
pharmacy benefit manager enters into the contract with the
pharmacist or pharmacy; and
(2) after that contract date, on the request of the
pharmacist or pharmacy.
Sec. 1369.355. UPDATES. (a) A health benefit plan issuer
or pharmacy benefit manager shall establish a process that will in a
timely manner eliminate drugs from maximum allowable cost lists or
modify maximum allowable cost prices to remain consistent with
changes in pricing data used in formulating maximum allowable cost
prices and product availability.
(b) A health benefit plan issuer or pharmacy benefit manager
shall review and update maximum allowable cost price information
for each drug at least once every seven days to reflect any
modification of maximum allowable cost pricing.
Sec. 1369.356. ACCESS TO MAXIMUM ALLOWABLE COST LISTS. A
health benefit plan issuer or pharmacy benefit manager must provide
to each pharmacist or pharmacy under contract with the health
benefit plan issuer or pharmacy benefit manager a process to
readily access the maximum allowable cost list that applies to the
pharmacist or pharmacy.
Sec. 1369.357. APPEAL FROM MAXIMUM ALLOWABLE COST PRICE
DETERMINATION. (a) A health benefit plan issuer or pharmacy
benefit manager must provide in the contract with each pharmacist
or pharmacy a procedure for the pharmacist or pharmacy to appeal a
maximum allowable cost price of a drug on or before the 10th day
after the date a pharmacy benefit claim for the drug is made.
(b) The health benefit plan issuer or pharmacy benefit
manager shall respond to an appeal described by Subsection (a) in a
documented communication not later than the 10th day after the date
the appeal is received by the health benefit plan issuer or pharmacy
benefit manager.
(c) If the appeal is successful, the health benefit plan
issuer or pharmacy benefit manager shall:
(1) adjust the maximum allowable cost price that is
the subject of the appeal effective on the day after the date the
appeal is decided;
(2) apply the adjusted maximum allowable cost price to
all similarly situated pharmacists and pharmacies as determined by
the health benefit plan issuer or pharmacy benefit manager; and
(3) allow the pharmacist or pharmacy that succeeded in
the appeal to reverse and rebill the pharmacy benefit claim giving
rise to the appeal.
(d) If the appeal is not successful, the health benefit plan
issuer or pharmacy benefit manager shall disclose to the pharmacist
or pharmacy:
(1) each reason the appeal is denied; and
(2) the national drug code number from the national or
regional wholesalers from which the drug is generally available for
purchase by pharmacists and pharmacies in this state at the maximum
allowable cost price that is the subject of the appeal.
Sec. 1369.358. CONFIDENTIALITY OF MAXIMUM ALLOWABLE COST
LIST. A maximum allowable cost list that applies to a pharmacist or
pharmacy and is maintained by a health benefit plan issuer or
pharmacy benefit manager is confidential. This section may not be
construed to alter a health benefit plan issuer's or pharmacy
benefit manager's obligations under Section 1369.356.
Sec. 1369.359. WAIVER PROHIBITED. The provisions of this
subchapter may not be waived, voided, or nullified by contract.
Sec. 1369.360. REMEDIES NOT EXCLUSIVE. This subchapter may
not be construed to waive a remedy at law available to a pharmacist
or pharmacy.
Sec. 1369.361. ENFORCEMENT. The commissioner shall enforce
this subchapter.
Sec. 1369.362. LEGISLATIVE DECLARATION. It is the intent
of the legislature that, except with respect to the benefits
excluded under Section 1369.352, the requirements contained in this
subchapter apply to all health benefit plan issuers and pharmacy
benefit managers unless otherwise prohibited by federal law.
SECTION 2. This Act applies only to a contract between a
health benefit plan issuer or a pharmacy benefit manager and a
pharmacist or pharmacy entered into or renewed on or after January
1, 2016. A contract entered into or renewed before January 1, 2016,
is governed by the law as it existed immediately before the
effective date of this Act, and that law is continued in effect for
that purpose.
SECTION 3. This Act takes effect January 1, 2016.