87R3428 JES-F
By: Lucio III H.B. No. 1093
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of pharmacy benefit managers and health
benefit plan issuers in relation to prescription drug coverage.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 1369, Insurance Code, is amended by
adding Subchaper A-1 to read as follows:
SUBCHAPTER A-1. COMPLAINTS
Sec. 1369.021. COMPLAINTS AGAINST PHARMACY BENEFIT
MANAGERS. (a) The commissioner may receive and review written
complaints alleging violations of this chapter by a pharmacy
benefit manager.
(b) Based on review under Subsection (a), if the
commissioner has reason to believe that a pharmacy benefit manager
engaged in a course of conduct exhibited through a pattern or
practice that violates this chapter or constitutes improper,
fraudulent, or dishonest contract performance with the pharmacist
or pharmacy, the commissioner may conduct any investigation
necessary to determine whether the pattern or practice exists.
(c) The commissioner shall take appropriate disciplinary
action as provided by this code against the pharmacy benefit
manager if the commissioner finds, based on an investigation
authorized by Subsection (b), that the pharmacy benefit manager
engaged in a course of conduct exhibited through a pattern or
practice that violates this chapter or constitutes improper,
fraudulent, or dishonest contract performance with the pharmacist
or pharmacy.
(d) The commissioner may exercise the subpoena authority
under Section 36.152 in an investigation under this section.
SECTION 2. Chapter 1369, Insurance Code, is amended by
adding Subchapter I to read as follows:
SUBCHAPTER I. RELATIONSHIP TO PHARMACISTS AND PHARMACIES
Sec. 1369.551. DEFINITIONS. In this subchapter:
(1) "Affiliated pharmacist of 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) "Pharmacy benefit manager" means a person, other
than a pharmacist or pharmacy, who acts as an administrator in
connection with pharmacy benefits.
Sec. 1369.552. 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. 1369.553. 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 in accordance with an audit performed under
Subchapter F.
(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.
(c) Notwithstanding any other law, this section applies to
the Medicaid managed care program operated under Chapter 533,
Government Code.
Sec. 1369.554. PROFESSIONAL STANDARDS AND SCOPE OF PRACTICE
REQUIREMENTS. A health benefit plan issuer or pharmacy benefit
manager may not as a condition of a contract with a pharmacist or
pharmacy:
(1) 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, including a specialty drug, that may be
dispensed under the pharmacist's or pharmacy's license unless
applicable state or federal law prohibits the pharmacist or
pharmacy from dispensing the drug.
Sec. 1369.555. RESTRICTIONS ON MAIL ORDER PHARMACY
SERVICES. A pharmacy benefit manager may not require an enrollee to
use a mail order pharmacy.
Sec. 1369.556. DELIVERY OF DRUGS. 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.
Sec. 1369.557. PROHIBITION ON CERTAIN REFERRALS. (a) A
health benefit plan issuer or pharmacy benefit manager may not
steer or direct a patient to use an affiliated pharmacist or
pharmacy through:
(1) any oral or written communication, including:
(A) online messaging regarding the pharmacist or
pharmacy; or
(B) patient- or prospective patient-specific
advertising, marketing, or promotion of the pharmacist or pharmacy;
or
(2) offering or implementing a health benefit plan
design that requires or induces a patient to use an affiliated
pharmacist or pharmacy, including by providing for reduced
cost-sharing amounts if the patient uses the pharmacist or
pharmacy.
(b) This section does not prohibit a health benefit plan
issuer or pharmacy benefit manager from including an affiliated
pharmacist or pharmacy in the issuer's or manager's patient
communications, including in a patient- or prospective
patient-specific communication, if the communication:
(1) is regarding in-network pharmacies and prices for
a health benefit plan;
(2) is accurate; and
(3) includes in-network pharmacists or pharmacies
that are not affiliated pharmacists or pharmacies.
(c) An affiliated pharmacist or pharmacy may not present a
claim for payment to any individual or entity, including to a
third-party payor, health benefit plan, or pharmacy benefit
manager, for a health care service or supply provided to a patient
who was improperly steered or directed to use the affiliated
pharmacist or pharmacy in violation of Subsection (a).
Sec. 1369.558. PROHIBITION ON SHARING PATIENT INFORMATION
FOR CERTAIN PURPOSES. (a) In this section, "commercial purpose"
does not include pharmacy reimbursement, formulary compliance,
pharmaceutical care, utilization review by a health care provider,
or a public health activity authorized by law.
(b) A health benefit plan issuer or pharmacy benefit manager
may not transfer to or receive from an affiliated pharmacist or
pharmacy a record containing patient- or prescriber-identifiable
prescription information for a commercial purpose.
SECTION 3. 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 4. This Act takes effect September 1, 2021.