By: Lucio III, et al. H.B. No. 2817
(Senate Sponsor - Hughes, et al.)
(In the Senate - Received from the House May 1, 2019;
May 3, 2019, read first time and referred to Committee on Business &
Commerce; May 21, 2019, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 8, Nays 0;
May 21, 2019, sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR H.B. No. 2817 By: Nichols
A BILL TO BE ENTITLED
AN ACT
relating to the contractual relationship between a pharmacist or
pharmacy and a health benefit plan issuer or pharmacy benefit
manager.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 1369, Insurance Code, is amended by
adding Subchapter K to read as follows:
SUBCHAPTER K. CONTRACTS WITH PHARMACISTS AND PHARMACIES
Sec. 1369.501. DEFINITIONS. In this subchapter:
(1) "Pharmacy benefit manager" has the meaning
assigned by Section 4151.151.
(2) "Pharmacy benefit network" means a network of
pharmacies that have contracted with a pharmacy benefit manager to
provide pharmacist services to enrollees.
(3) "Pharmacy services administrative organization"
means an entity that contracts with a pharmacist or pharmacy to
conduct on behalf of the pharmacist or pharmacy the pharmacist's or
pharmacy's business with a third-party payor, including a pharmacy
benefit manager, in connection with pharmacy benefits and to assist
the pharmacist or pharmacy by providing administrative services,
including negotiating, executing, and administering a contract
with a third-party payor and communicating with the third-party
payor in connection with a contract or pharmacy benefits.
Sec. 1369.502. APPLICABILITY OF SUBCHAPTER. (a) This
subchapter applies only to a health benefit plan that provides
benefits for medical or surgical expenses incurred as a result of a
health condition, accident, or sickness, including an individual,
group, blanket, or franchise insurance policy or insurance
agreement, a group hospital service contract, or an individual or
group evidence of coverage or similar coverage document that is
offered by:
(1) an insurance company;
(2) a group hospital service corporation operating
under Chapter 842;
(3) a health maintenance organization operating under
Chapter 843;
(4) an approved nonprofit health corporation that
holds a certificate of authority under Chapter 844;
(5) a multiple employer welfare arrangement that holds
a certificate of authority under Chapter 846;
(6) a stipulated premium company operating under
Chapter 884;
(7) a fraternal benefit society operating under
Chapter 885;
(8) a Lloyd's plan operating under Chapter 941; or
(9) an exchange operating under Chapter 942.
(b) Notwithstanding any other law, this subchapter applies
to:
(1) a small employer health benefit plan subject to
Chapter 1501, including coverage provided through a health group
cooperative under Subchapter B of that chapter;
(2) a standard health benefit plan issued under
Chapter 1507;
(3) health benefits provided by or through a church
benefits board under Subchapter I, Chapter 22, Business
Organizations Code;
(4) group health coverage made available by a school
district in accordance with Section 22.004, Education Code;
(5) a regional or local health care program operated
under Section 75.104, Health and Safety Code; and
(6) a self-funded health benefit plan sponsored by a
professional employer organization under Chapter 91, Labor Code.
(c) This subchapter does not apply to an issuer or provider
of health benefits under or a pharmacy benefit manager
administering pharmacy benefits under a workers' compensation
insurance policy or other form of providing medical benefits under
Title 5, Labor Code.
Sec. 1369.503. REDUCTION OF CERTAIN CLAIM PAYMENT AMOUNTS
PROHIBITED. (a) A health benefit plan issuer or pharmacy benefit
manager may not directly or indirectly reduce the amount of a claim
payment to a pharmacist or pharmacy after adjudication of the claim
through the use of an aggregated effective rate, a quality
assurance program, other direct or indirect remuneration fee, or
otherwise, except:
(1) in accordance with an audit performed under
Subchapter F; or
(2) by mutual agreement of the parties under a
pharmacy benefit network contract under which the health benefit
plan issuer or pharmacy benefit manager does not require as a
condition of the pharmacy benefit network contract or of
participation in the pharmacy benefit network that a pharmacist or
pharmacy agree to allow the health benefit plan issuer or pharmacy
benefit manager to reduce the amount of a claim payment to the
pharmacist or pharmacy after adjudication of the claim.
(b) Nothing in this section prohibits a health benefit plan
issuer or pharmacy benefit manager from increasing a claim payment
amount after adjudication of the claim.
Sec. 1369.504. REIMBURSEMENT OF AFFILIATED AND
NONAFFILIATED PHARMACISTS AND PHARMACIES. (a) In this section:
(1) "Affiliated pharmacist or pharmacy" means a
pharmacist or pharmacy that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under
common control with, a pharmacy benefit manager.
(2) "Nonaffiliated pharmacist or pharmacy" means a
pharmacist or pharmacy that does not directly, or indirectly
through one or more intermediaries, control and is not controlled
by or under common control with a pharmacy benefit manager.
(b) A pharmacy benefit manager may not pay an affiliated
pharmacist or pharmacy a reimbursement amount that is more than the
amount the pharmacy benefit manager pays a nonaffiliated pharmacist
or pharmacy for the same pharmacist service.
Sec. 1369.505. NETWORK CONTRACT FEE SCHEDULE. A pharmacy
benefit network contract must specify or reference a separate fee
schedule. Unless otherwise available in the contract, the fee
schedule must be provided electronically in an easily accessible
and complete spreadsheet format and, on request, in writing to each
contracted pharmacist and pharmacy. The fee schedule must
describe:
(1) specific services or procedures that the
pharmacist or pharmacy may deliver and the amount of the
corresponding payment;
(2) a methodology for calculating the amount of the
payment based on a published fee schedule; or
(3) any other reasonable manner that provides an
ascertainable amount for payment for services.
Sec. 1369.506. DISCLOSURE OF PHARMACY SERVICES
ADMINISTRATIVE ORGANIZATION CONTRACT. A pharmacist or pharmacy
that is a member of a pharmacy services administrative organization
that enters into a contract with a health benefit plan issuer or
pharmacy benefit manager on the pharmacist's or pharmacy's behalf
is entitled to receive from the pharmacy services administrative
organization a copy of the contract provisions applicable to the
pharmacist or pharmacy, including each provision relating to the
pharmacist's or pharmacy's rights and obligations under the
contract.
Sec. 1369.507. DELIVERY OF DRUGS. (a) Except in a case in
which the health benefit plan issuer or pharmacy benefit manager
makes a credible allegation of fraud against the pharmacist or
pharmacy and provides reasonable notice of the allegation and the
basis of the allegation to the pharmacist or pharmacy, a health
benefit plan issuer or pharmacy benefit manager may not as a
condition of a contract with a pharmacist or pharmacy prohibit the
pharmacist or pharmacy from:
(1) mailing or delivering a drug to a patient on the
patient's request, to the extent permitted by law; or
(2) charging a shipping and handling fee to a patient
requesting a prescription be mailed or delivered if the pharmacist
or pharmacy discloses to the patient before the delivery:
(A) the fee that will be charged; and
(B) that the fee may not be reimbursable by the
health benefit plan issuer or pharmacy benefit manager.
(b) A pharmacist or pharmacy may not charge a health benefit
plan issuer or pharmacy benefit manager for the delivery of a
prescription drug as described by this section unless the charge is
specifically agreed to by the health benefit plan issuer or
pharmacy benefit manager.
(c) Notwithstanding Subsection (a), a health benefit plan
issuer or pharmacy benefit manager may as a condition of contract
prohibit a pharmacist or pharmacy from mailing the drugs for more
than 25 percent of the claims the pharmacist or pharmacy submits to
the health benefit plan issuer or pharmacy benefit manager during a
calendar year.
Sec. 1369.508. PROFESSIONAL STANDARDS AND SCOPE OF PRACTICE
REQUIREMENTS. (a) A health benefit plan issuer or pharmacy benefit
manager may not as a condition of a contract with a pharmacist or
pharmacy:
(1) except as provided by Subsection (b), require
pharmacist or pharmacy accreditation standards or recertification
requirements inconsistent with, more stringent than, or in addition
to federal and state requirements; or
(2) prohibit a licensed pharmacist or pharmacy from
dispensing any drug that may be dispensed under the pharmacist's or
pharmacy's license unless:
(A) applicable state or federal law prohibits the
pharmacist or pharmacy from dispensing the drug; or
(B) the manufacturer of the drug requires that a
pharmacist or pharmacy possess one or more accreditations or
certifications to dispense the drug and the pharmacist or pharmacy
does not meet the requirement.
(b) A health benefit plan issuer or pharmacy benefit manager
may require as a condition of a contract with a specialty pharmacy
that the specialty pharmacy obtain accreditation from not more than
two of the following independent accreditation organizations:
(1) URAC, formerly the Utilization Review
Accreditation Commission;
(2) The Joint Commission;
(3) Accreditation Commission for Health Care (ACHC);
(4) Center for Pharmacy Practice Accreditation
(CPPA); or
(5) National Committee for Quality Assurance (NCQA).
Sec. 1369.509. RETALIATION PROHIBITED. (a) A pharmacy
benefit manager may not retaliate against a pharmacist or pharmacy
based on the pharmacist's or pharmacy's exercise of any right or
remedy under this chapter. Retaliation prohibited by this section
includes:
(1) terminating or refusing to renew a contract with
the pharmacist or pharmacy;
(2) subjecting the pharmacist or pharmacy to increased
audits; or
(3) failing to promptly pay the pharmacist or pharmacy
any money owed by the pharmacy benefit manager to the pharmacist or
pharmacy.
(b) For purposes of this section, a pharmacy benefit manager
is not considered to have retaliated against a pharmacist or
pharmacy if the pharmacy benefit manager:
(1) takes an action in response to a credible
allegation of fraud against the pharmacist or pharmacy; and
(2) provides reasonable notice to the pharmacist or
pharmacy of the allegation of fraud and the basis of the allegation
before taking the action.
Sec. 1369.510. WAIVER PROHIBITED. The provisions of this
subchapter may not be waived, voided, or nullified by contract.
SECTION 2. The change in law made by this Act applies only
to a contract entered into or renewed on or after the effective date
of this Act. A contract entered into or renewed before the
effective date of this Act 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 September 1, 2019.
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