H.B. No. 3286
AN ACT
relating to prescription drug benefits under Medicaid and the child
health plan program.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter B, Chapter 531, Government Code, is
amended by adding Section 531.0691 to read as follows:
Sec. 531.0691. VENDOR DRUG PROGRAM INCLUSION. (a) The
commission shall ensure that the vendor drug program includes all
drugs and national drug codes made available under the federal
Medicaid Drug Rebate Program if a certificate of information form
to request the drug's inclusion in the vendor drug program has been
submitted to the commission and:
(1) approved by the commission; or
(2) subject to Subsection (b), is pending review by
the commission.
(b) On receipt of a certificate of information form to
request the addition to the Texas Drug Code Index of a drug that is
available under the federal Medicaid Drug Rebate Program, the
commission shall, if the commission determines that the drug is
appropriate for dispensing through an outpatient pharmacy,
provisionally make the drug available under the vendor drug program
for a period that expires on the earlier of:
(1) the 90th day after the date the form was submitted;
or
(2) the date the commission makes a determination
regarding whether to approve or deny the drug's inclusion on the
vendor drug program formulary.
(c) The commission shall:
(1) denote the provisional availability of a drug
under this section; and
(2) remove a drug made provisionally available under
the vendor drug program:
(A) on the expiration of the 90-day period
prescribed by Subsection (b)(1); or
(B) if applicable, on the date the commission
denies the drug's inclusion on the vendor drug program formulary.
SECTION 2. Chapter 533, Government Code, is amended by
adding Subchapter C to read as follows:
SUBCHAPTER C. PRESCRIPTION DRUG BENEFITS UNDER CERTAIN OUTPATIENT
PHARMACY BENEFIT PLANS
Sec. 533.071. PREFERRED DRUG LIST EXCEPTIONS. (a) The
commission shall adopt rules allowing exceptions to the preferred
drug list if:
(1) the drug required under the preferred drug list:
(A) is contraindicated;
(B) will likely cause an adverse reaction in or
physical or mental harm to the recipient; or
(C) is expected to be ineffective based on the
known clinical characteristics of the recipient and the known
characteristics of the prescription drug regimen;
(2) the recipient previously discontinued taking the
preferred drug at any point in the recipient's clinical history and
for any length of time because the drug:
(A) was not effective;
(B) had a diminished effect; or
(C) resulted in an adverse event;
(3) the recipient was prescribed and is taking a
nonpreferred drug in the antidepressant or antipsychotic drug class
and the recipient:
(A) was prescribed the nonpreferred drug before
being discharged from an inpatient facility;
(B) is stable on the nonpreferred drug; and
(C) is at risk of experiencing complications from
switching from the nonpreferred drug to another drug; or
(4) the preferred drug is not available for reasons
outside of the Medicaid managed care organization's control,
including because:
(A) the drug is in short supply according to the
Food and Drug Administration Drug Shortages Database; or
(B) the drug's manufacturer has placed the drug
on backorder or allocation.
(b) An exception provided under this section does not
subject the Medicaid managed care plan to liquidated damages for
failing to comply with the preferred drug list.
SECTION 3. Section 531.072, Government Code, is amended by
adding Subsections (b-3), (g), and (h) to read as follows:
(b-3) Notwithstanding Subsection (b), the preferred drug
lists must contain all therapeutic equivalents for a generic drug
on the preferred drug list.
(g) The commission shall develop an expedited review
process to consider requests from managed care organizations and
providers to add drugs to the preferred drug list.
(h) The commission shall grant temporary non-preferred
status to new drugs that are available but have not yet been
reviewed by the drug utilization review board and establish
criteria for authorizing drugs with temporary non-preferred
status.
SECTION 4. Section 531.073(b), Government Code, is amended
to read as follows:
(b) The commission shall establish procedures for the prior
authorization requirement under the Medicaid vendor drug program to
ensure that the requirements of 42 U.S.C. Section 1396r-8(d)(5) and
its subsequent amendments are met. Specifically, the procedures
must ensure that:
(1) [a prior authorization requirement is not imposed
for a drug before the drug has been considered at a meeting of the
Drug Utilization Review Board under Section 531.0736;
[(2)] there will be a response to a request for prior
authorization by telephone or other telecommunications device
within 24 hours after receipt of a request for prior authorization;
and
(2) [(3)] a 72-hour supply of the drug prescribed will
be provided in an emergency or if the commission does not provide a
response within the time required by Subdivision (1) [(2)].
SECTION 5. Sections 531.0736(c) and (d), Government Code,
are amended to read as follows:
(c) The executive commissioner shall determine the
composition of the board, which must:
(1) comply with applicable federal law, including 42
C.F.R. Section 456.716;
(2) include three [two] representatives of managed
care organizations [as nonvoting members], all [one] of whom must
be physicians or pharmacists [a physician and one of whom must be a
pharmacist];
(3) include at least 17 physicians and pharmacists
who:
(A) provide services across the entire
population of Medicaid recipients and represent different
specialties, including at least one of each of the following types
of physicians:
(i) a pediatrician;
(ii) a primary care physician;
(iii) an obstetrician and gynecologist;
(iv) a child and adolescent psychiatrist;
and
(v) an adult psychiatrist; and
(B) have experience in either developing or
practicing under a preferred drug list; and
(4) include a consumer advocate who represents
Medicaid recipients.
(d) Notwithstanding any other law, members [Members]
appointed under Subsection (c)(2) may attend quarterly and other
regularly scheduled meetings, but may not:
(1) attend portions of the executive sessions in which
confidential drug pricing information is shared; or
(2) access confidential drug pricing information.
SECTION 6. If before implementing any provision of this Act
a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 7. This Act takes effect September 1, 2023.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 3286 was passed by the House on May 5,
2023, by the following vote: Yeas 142, Nays 0, 1 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 3286 on May 25, 2023, by the following vote: Yeas 139, Nays 0,
1 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 3286 was passed by the Senate, with
amendments, on May 21, 2023, by the following vote: Yeas 31, Nays
0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor