Florida Senate - 2019                                     SB 906
       
       
        
       By Senator Wright
       
       
       
       
       
       14-00934-19                                            2019906__
    1                        A bill to be entitled                      
    2         An act relating to prescribed drug services and
    3         audits; creating s. 465.1871, F.S.; prohibiting
    4         attorneys from engaging in misleading advertisement
    5         related to medicinal drugs; providing causes of
    6         action; providing penalties; providing a timeframe for
    7         actions for recovery; amending s. 465.1885, F.S.;
    8         defining terms; providing applicability; providing
    9         requirements for pharmacy contracts and auditing
   10         entities; revising the timeframe for notice of audit;
   11         revising the rights that pharmacies have if audits are
   12         conducted; prohibiting audits from considering as
   13         fraud any clerical and recordkeeping error; limiting
   14         charge-backs and recoupments; excluding dispensing
   15         fees from calculations of overpayment; requiring
   16         auditing entities to be responsible for costs
   17         associated with audits; prohibiting auditing entities
   18         from compensating certain employees or contractors;
   19         providing penalties; requiring auditing entities to
   20         state the reason for the audits under certain
   21         circumstances; revising the timeframes of audit
   22         periods; revising the timeframe for the delivery of
   23         the preliminary audit report; revising the
   24         requirements for pharmacies to address discrepancies
   25         or audit findings; requiring the Office of Insurance
   26         Regulation to establish an appeals process; creating
   27         s. 624.491, F.S.; defining terms; requiring pharmacy
   28         benefit managers to provide the office with an annual
   29         report; providing report requirements; prohibiting
   30         publication or disclosure of certain information;
   31         requiring the office to publish certain information;
   32         creating s. 624.495, F.S.; defining the term “pharmacy
   33         services administration organization” or “PSAO”;
   34         requiring registration of pharmacy services
   35         administration organizations with the office;
   36         providing registration and reporting requirements;
   37         requiring the office to issue registration
   38         certificates under certain circumstances; authorizing
   39         the Financial Services Commission to adopt rules;
   40         amending s. 627.42392, F.S.; defining terms; revising
   41         the circumstances under which health insurers and
   42         pharmacy benefit managers are required to use prior
   43         authorization forms for specified purposes; requiring
   44         health insurers and pharmacy benefit managers to
   45         establish and offer an online prior authorization
   46         process; providing requirements for the process;
   47         creating s. 627.42393, F.S.; providing definitions;
   48         requiring health insurers to publish and provide to
   49         insureds a procedure for exemptions from fail first
   50         policies; providing requirements for the procedure;
   51         providing requirements for authorization or denial of
   52         policy exemptions; amending ss. 627.64741, 627.6572,
   53         and 641.314, F.S.; requiring pharmacy benefit managers
   54         to publish a list of certain drugs on their websites;
   55         providing requirements for the publication; extending
   56         the applicability date; creating ss. 627.64742,
   57         627.66998, and 641.3924, F.S.; defining terms;
   58         requiring health insurers and health maintenance
   59         organizations to disclose to enrollees and prospective
   60         enrollees or to subscribers and prospective
   61         subscribers, respectively, that they are subject to
   62         excess cost sharing under certain circumstances;
   63         providing duties for health insurers and health
   64         maintenance organizations; prohibiting disclosure of
   65         specified information; providing an effective date.
   66          
   67  Be It Enacted by the Legislature of the State of Florida:
   68  
   69         Section 1. Section 465.1871, Florida Statutes, is created
   70  to read:
   71         465.1871Attorney liability for misleading advertisement.—
   72         (1)An attorney may not engage in misleading legal services
   73  advertisement related to medicinal drugs. A legal services
   74  advertisement is misleading if the advertisement does any of the
   75  following:
   76         (a)Fails to disclose at the beginning of the
   77  advertisement: “This is a paid advertisement for legal
   78  services.”
   79         (b)Presents the advertisement as a “medical alert,”
   80  “health alert,” “consumer alert,” or “public service
   81  announcement,” or as any similar term.
   82         (c)Displays the logo of a federal or state government
   83  agency in a manner that suggests an affiliation with the agency
   84  or the sponsorship of that agency.
   85         (d)Uses the word “recall” when referring to a product that
   86  has not been recalled either by a government agency or through
   87  an agreement between the manufacturer and a government agency.
   88         (e)Fails to identify the sponsor of the advertisement.
   89         (f)Fails to indicate the identity of the attorney who or
   90  law firm that will represent the client, or how cases will be
   91  referred to an attorney who or law firm that will represent the
   92  client if the sponsor of the advertisement may not represent
   93  persons responding to the advertisement.
   94         (2)A person who ceases to follow medical advice relating
   95  to medicinal drugs because of misleading legal services
   96  advertising as described in subsection (1) has a cause of action
   97  for double the amount of actual damages against the attorney who
   98  engaged in the misleading legal services advertisement.
   99         (3)A person who ceases to follow medical advice relating
  100  to medicinal drugs because of legal services advertising related
  101  to medicinal drugs, whether the advertisement is misleading or
  102  not, has a cause of action against the attorney who engaged in
  103  the legal services advertisement.
  104         (4)An action under this section may be brought in any
  105  court of competent jurisdiction to recover compensatory damages
  106  against the attorney who engages in legal services advertising;
  107  however, the plaintiff may not recover damages twice for the
  108  same injury. An action for recovery under this section must
  109  commence within 2 years after the time the legal services
  110  advertising last occurs.
  111         Section 2. Section 465.1885, Florida Statutes, is amended
  112  to read:
  113         (Substantial rewording of section. See
  114         s. 465.1885, F.S., for present text.)
  115         465.1885Pharmacy audits.—
  116         (1)As used in this section, the term:
  117         (a)“Health benefit plan” means any individual or group
  118  plan, employee welfare benefit plan, policy, or contract for
  119  health care services issued, delivered, issued for delivery, or
  120  renewed in this state by a health care insurer, health
  121  maintenance organization, accident and sickness insurer,
  122  fraternal benefit society, nonprofit hospital service
  123  corporation, nonprofit medical services corporation, health care
  124  service plan, or any other person, firm, corporation, joint
  125  venture, or other similar business entity that pays for insureds
  126  or beneficiaries in this state.
  127         (b)“Pharmacy benefit management plan” means an arrangement
  128  for the delivery of pharmacy services in which a pharmacy
  129  benefit manager undertakes to administer the payment or
  130  reimbursement of any of the costs of pharmacy services for an
  131  enrollee on a prepaid or insured basis that contains one or more
  132  incentive arrangements intended to influence the cost or level
  133  of pharmacy services between the plan sponsor and one or more
  134  pharmacies with respect to the delivery of pharmacy services.
  135  The pharmacy benefit management plan also requires or creates a
  136  benefit payment differential for enrollees to use under contract
  137  with the pharmacy benefit manager.
  138         (c)“Pharmacy benefit manager” means a business that
  139  administers the prescription drug or device portion of pharmacy
  140  benefit management plans or health insurance plans on behalf of
  141  plan sponsors, insurance companies, unions, and health
  142  maintenance organizations. The term includes a person or entity
  143  acting for a pharmacy benefit manager in a contractual or an
  144  employment relationship in the performance of pharmacy benefit
  145  management for a managed care company, nonprofit hospital or
  146  medical services organization, insurance company, or other
  147  third-party payor.
  148         (d)“Pharmacy services” means the offering for sale,
  149  compounding, or dispensing of drugs, chemicals, or poisons
  150  pursuant to a prescription. The term also includes the sale or
  151  provision of, fitting of, or counseling on medical devices,
  152  including prosthetics and durable medical equipment.
  153         (2)(a)This section applies to any audit of the records of
  154  a pharmacy, except Medicaid-related records, which is conducted
  155  by a managed care company, a nonprofit hospital or medical
  156  services organization, a health benefit plan, a third-party
  157  payor, a pharmacy benefit manager, a health program administered
  158  by an agency of the state, or any entity that represents those
  159  companies, groups, or agencies.
  160         (b)A health benefit plan located or domiciled outside of
  161  this state is subject to this section if it receives, processes,
  162  adjudicates, pays, or denies claims for health care services
  163  submitted by or on behalf of patients, insureds, or
  164  beneficiaries who reside in this state.
  165         (3)A pharmacy contract must identify and describe in
  166  detail the audit procedures, and the entity conducting an audit
  167  shall follow these procedures.
  168         (4)An entity conducting an audit shall give the pharmacy
  169  written notice at least 4 weeks before conducting the initial
  170  audit for each audit cycle. If the auditing entity is a pharmacy
  171  benefit manager and if the auditing entity does not include its
  172  auditing guidelines in its provider manual, the notice must
  173  include a documented checklist of all items being audited and
  174  the manual, including the name, date, and edition or volume,
  175  applicable to the audit and auditing guidelines. For onsite
  176  audits, a pharmacy benefit manager must also provide a list of
  177  materials that are copied or removed during the course of an
  178  audit. The pharmacy benefit manager may document these materials
  179  on a checklist or an audit acknowledgment form. The pharmacy
  180  must produce any items during the course of the audit or within
  181  30 days after the audit.
  182         (5)An entity conducting an audit may not interfere with
  183  the delivery of pharmacy services to a patient and shall use
  184  every effort to minimize inconvenience and disruption to
  185  pharmacy operations during the audit process.
  186         (6)An audit that involves clinical or professional
  187  judgment must be conducted by or in consultation with a
  188  pharmacist licensed in this state.
  189         (7)The audit may not consider as fraud any clerical or
  190  recordkeeping error, such as a typographical error, a
  191  scrivener’s error, or a computer error regarding a required
  192  document or record; however, such errors may be subject to
  193  recoupment if the errors resulted in overpayment to the
  194  pharmacy. The pharmacy has the right to submit amended claims
  195  through an online submission to correct clerical or
  196  recordkeeping errors in lieu of recoupment if no actual
  197  financial harm to the patient or plan has occurred and if the
  198  prescription was dispensed according to the prescription
  199  documentation requirements set forth in the Florida Pharmacy Act
  200  and within the plan limits. The pharmacy is not subject to
  201  recoupment of funds by the pharmacy benefit manager unless the
  202  pharmacy benefit manager can provide proof of intent to commit
  203  fraud or such error results in actual financial harm to the
  204  pharmacy benefit manager, a health insurance plan managed by the
  205  pharmacy benefit manager, or a consumer. A person is not subject
  206  to criminal penalties for errors provided for in this subsection
  207  without proof of intent to commit fraud, waste, or abuse.
  208         (a)Any amount to be charged back or recouped due to
  209  overpayment must not exceed the amount the pharmacy was
  210  overpaid.
  211         (b)The auditing entity may not include the dispensing fee
  212  in the calculation of an overpayment unless a prescription is a
  213  misfill. As used in this paragraph, the term “misfill” means a
  214  prescription that was not dispensed, a prescription in which the
  215  prescriber denied the authorization request, a prescription in
  216  which an additional dispensing fee was charged, or a
  217  prescription error by the pharmacy.
  218         (8)The auditing entity may not use extrapolation to
  219  calculate penalties or amounts to be charged back or recouped
  220  unless otherwise required by federal requirements or federal
  221  plans.
  222         (9)The auditing entity may not require any documentation
  223  that is not required by state or federal law. The information is
  224  considered valid if documented on the prescription, computerized
  225  treatment notes, pharmacy system, or other acceptable medical
  226  records.
  227         (10)Unless superseded by state or federal law, auditors
  228  may have access only to previous audit reports on a particular
  229  pharmacy conducted by the auditing entity for the same pharmacy
  230  benefit manager, health plan, or insurer. An auditing vendor
  231  contracting with multiple pharmacy benefit managers or health
  232  insurance plans may not use audit reports or other information
  233  gained from an audit on a particular pharmacy to conduct another
  234  audit for a different pharmacy benefit manager or health
  235  insurance plan.
  236         (11)Audit results must be disclosed to the health benefit
  237  plan in a manner pursuant to contractual terms.
  238         (12)A pharmacy may use the records of a hospital,
  239  physician, or other authorized practitioner of the healing arts
  240  for drugs or medicinal supplies written or transmitted by any
  241  means of communication for the purposes of validating the
  242  pharmacy record with respect to orders or refills of a legend or
  243  narcotic drug.
  244         (13)(a)If the pharmacy benefit manager or its
  245  representative conducts an audit, the sample size must not be
  246  greater than 150 prescriptions. A refill does not constitute a
  247  separate prescription for the purposes of this subsection.
  248         (b)The audit must be a true representation of the billing
  249  of the pharmacy to the pharmacy benefit manager. The sampling
  250  for the audit must be random, with the average cost per
  251  prescription audited, and may not be more than the average
  252  prescription billed to the pharmacy benefit manager during that
  253  period. The random process of how these prescriptions were
  254  selected must be provided to the pharmacy.
  255         (14)Reasonable costs associated with the audit must be the
  256  responsibility of the auditing entity if the claims sample
  257  exceeds 100 unique prescription hard copies.
  258         (15)(a)The auditing entity may not compensate an employee
  259  or contractor with which the auditing entity contracts to
  260  conduct the pharmacy audit based on the amount claimed or the
  261  actual amount recouped by the pharmacy being audited.
  262         (b)The license of any auditing entity that violates
  263  paragraph (a) may be denied, suspended, or revoked upon proof of
  264  such violation.
  265         (16)A finding of an overpayment must not include the cost
  266  of the drugs that were dispensed in accordance with the
  267  prescriber’s orders, if the prescription was dispensed according
  268  to prescription documentation requirements set forth by the
  269  Florida Pharmacy Act and within the plan limits. A finding of an
  270  overpayment may not include the dispensing fee as specified in
  271  paragraph (7)(b).
  272         (17)For a finding of an underpayment due to package size
  273  or other clerical error, the pharmacy benefit manager shall make
  274  the pharmacy whole and shall allow the pharmacy to reprocess for
  275  underpayment.
  276         (18)(a)Each pharmacy must be audited under the same
  277  standards and parameters as other similarly situated pharmacies
  278  audited by the entity and must be audited under rules applicable
  279  to the contractor and time period of the prescription.
  280         (b)If the auditing entity is a pharmacy benefit manager,
  281  the entity must state, as requested by the Office of Insurance
  282  Regulation, the reason for which the audit was initiated, such
  283  as random or suspected fraud.
  284         (19)When not superseded by state or federal law, the
  285  period covered by an audit must not exceed 6 months after the
  286  date on which the claim was submitted to or adjudicated by a
  287  managed care company, a nonprofit hospital or medical services
  288  organization, a health benefit plan, a third-party payor, a
  289  pharmacy benefit manager, a health program administered by an
  290  agency of the state, or any entity that represents those
  291  companies, groups, or agencies. An audit may not be conducted 6
  292  months after the date on which the pharmacy benefit management
  293  plan terminated its contract to adjudicate claims with a
  294  pharmacy benefit manager, health plan administrator, or any
  295  other entity representing those companies.
  296         (20)An audit may not be initiated or scheduled during the
  297  first 5 calendar days of any month.
  298         (21)The auditing entity shall provide the pharmacy with a
  299  written report of the audit and shall comply with all of the
  300  following requirements:
  301         (a)The preliminary audit report must be delivered to the
  302  pharmacy within 30 days after the conclusion of the audit, with
  303  a reasonable extension to be granted upon request.
  304         (b)The pharmacy must be allowed at least 60 days after
  305  receipt of the preliminary audit report to produce documentation
  306  to address any discrepancy found during the audit, with a
  307  reasonable extension to be granted upon request.
  308         (c)The auditing entity shall deliver the final report to
  309  the pharmacy within 30 days after sending out the preliminary
  310  audit report or within 30 days after receiving a final appeal,
  311  whichever is later.
  312         (d)The auditor or auditors assigned to the audit shall
  313  sign the audit documents. The auditor shall sign the
  314  acknowledgment or receipt, and the audit report must contain
  315  clear contact information of the representative of the auditing
  316  organization.
  317         (22)Recoupment of any disputed funds, or repayment of
  318  funds to the entity by the pharmacy if permitted pursuant to
  319  contractual agreement, must occur after final internal
  320  disposition of the audit, including the appeals process.
  321         (a)Recoupment must be billed to the pharmacy, and the
  322  pharmacy must be given reasonable time to make interest-free
  323  payment, not to exceed 2 years after final disposition of the
  324  audit.
  325         (b)If the identified discrepancy for an individual audit
  326  exceeds $25,000, future payments in excess of that amount to the
  327  pharmacy may be withheld pending finalization of the audit.
  328         (23)Interest must not accrue during the audit period.
  329         (24)The auditing entity shall provide a copy of the final
  330  audit report, after completion of any review process, to the
  331  plan sponsor in a manner pursuant to a contract.
  332         (25)The Office of Insurance Regulation shall establish a
  333  written appeals process under which a pharmacy may appeal an
  334  unfavorable preliminary audit report to the entity. Following
  335  the appeal:
  336         (a)If the auditing entity finds that an unfavorable audit
  337  report or any portion thereof is unsubstantiated, the entity
  338  shall dismiss the audit report or that portion without the
  339  necessity of any further action.
  340         (b)If any of the issues raised in the appeal are not
  341  resolved to the satisfaction of either party, an unsatisfied
  342  party may ask the Office of Insurance Regulation to enforce the
  343  provisions of the insurance code and applicable rules as they
  344  relate to the review of policy contracts and associated rates.
  345  The cost of mediation shall be borne by agreement of the parties
  346  or by the decision of the office.
  347         Section 3. Section 624.491, Florida Statutes, is created to
  348  read:
  349         624.491Pharmacy benefit manager disclosures.—
  350         (1)As used in this section, the term:
  351         (a)“Administrative fee” means a fee paid or a payment made
  352  by a pharmaceutical manufacturer to a pharmacy benefit manager
  353  or its designee, or a fee or payment retained by a pharmacy
  354  benefit manager or its designee, pursuant to a contract between
  355  the pharmacy benefit manager and the pharmaceutical manufacturer
  356  in connection with the pharmacy benefit manager’s administering,
  357  invoicing, allocating, and collecting rebates.
  358         (b)“Aggregate retained-rebate percentage” means the
  359  percentage of all rebates received by a pharmacy benefit manager
  360  from all pharmaceutical manufacturers which is not passed on to
  361  the pharmacy benefit manager’s health plan or issuer clients.
  362  The percentage is calculated by dividing the aggregate dollar
  363  amount of rebates that the pharmacy benefit manager received
  364  during the prior calendar year from all pharmaceutical
  365  manufacturers which was not passed on to the pharmacy benefit
  366  manager’s health plan or issuer clients by the aggregate dollar
  367  amount of rebates that the pharmacy benefit manager received
  368  during the prior calendar year from all pharmaceutical
  369  manufacturers.
  370         (c)“Health plan” means a policy, contract, certification,
  371  or agreement offered or issued by an issuer to provide, deliver,
  372  arrange for, pay for, or reimburse any of the costs of health
  373  services.
  374         (d)“Issuer” means an authorized health insurer or health
  375  maintenance organization that offers one or more health plans
  376  delivered or issued to deliver to any person in this state.
  377         (e)“Issuer administrative service fee” means a fee paid or
  378  a payment made by an issuer or its designee to a pharmacy
  379  benefit manager, or a fee or payment retained by a pharmacy
  380  benefit manager, pursuant to a contract between the pharmacy
  381  benefit manager and the issuer or the issuer’s designee in
  382  connection with the pharmacy benefit manager’s managing or
  383  administering the pharmacy benefit and administering, invoicing,
  384  allocating, and collecting rebates.
  385         (f)“Pharmacy benefit manager” has the same meaning as in
  386  s. 624.490(1).
  387         (g)“Rebate” means a rebate, discount, or price concession
  388  that is based on the use or price of a prescription drug and
  389  that is paid by a pharmaceutical manufacturer or an entity other
  390  than the patient, directly or indirectly, to a pharmacy benefit
  391  manager after the pharmacy benefit manager adjudicates the
  392  claim. Rebates include price protection rebates and a reasonable
  393  estimate of volume-based discounts or other discounts.
  394         (2)Beginning January 1, 2020, and by January 1 of each
  395  year thereafter, a pharmacy benefit manager shall provide the
  396  office with a report containing all of the following information
  397  from the prior calendar year:
  398         (a)The aggregate dollar amount of all administrative fees
  399  that the pharmacy benefit manager received.
  400         (b)The aggregate dollar amount of all administrative fees
  401  that the pharmacy benefit manager received and did not pass on
  402  to health plans or to issuers.
  403         (c)The aggregate dollar amount of all issuer
  404  administrative service fees that the pharmacy benefit manager
  405  received.
  406         (d)The aggregate dollar amount of rebates that the
  407  pharmacy benefit manager received from all pharmaceutical
  408  manufacturers.
  409         (e)The aggregate dollar amount of rebates that the
  410  pharmacy benefit manager received from all pharmaceutical
  411  manufacturers and did not pass on to health plans or issuers.
  412         (f)The aggregate retained-rebate percentage.
  413         (g)Across all of the pharmacy benefit manager’s
  414  contractual relationships or other relationships with all health
  415  plans and issuers, the highest aggregate retained-rebate
  416  percentage and the lowest aggregate retained-rebate percentage.
  417         (3)The pharmacy benefit manager may not publish or
  418  otherwise disclose any information that would reveal the
  419  identity of a specific health plan, the price charged for a
  420  specific drug or class of drugs, or the amount of any rebates
  421  provided for a specific drug or class of drugs. Any such
  422  information is protected from disclosure as confidential and
  423  proprietary information and is not subject to public records
  424  requirements under s. 119.07(1) or s. 24(a), Art. I of the State
  425  Constitution.
  426         (4)The office shall publish in a timely manner the
  427  information that it receives under subsection (2) on a publicly
  428  available website. However, the office may not publish or
  429  disclose any information that is considered a trade secret under
  430  s. 624.4213.
  431         Section 4. Section 624.495, Florida Statutes, is created to
  432  read:
  433         624.495Registration of pharmacy services administration
  434  organizations.—
  435         (1)As used in this section, the term “pharmacy services
  436  administration organization” or “PSAO” means a person or entity
  437  doing business in this state which contracts with independent
  438  pharmacies to represent these pharmacies or to provide them with
  439  a broad range of services. Services provided by PSAOs are
  440  intended to achieve administrative efficiencies, including
  441  contract and payment efficiencies, for both member pharmacies
  442  and third-party payors, or third-party payors’ pharmacy benefit
  443  managers, as defined in s. 624.490. A PSAO’s services may
  444  include, but are not limited to:
  445         (a)Negotiating and contracting with third-party payors on
  446  behalf of member pharmacies.
  447         (b)Contracting with pharmacy benefit managers that are
  448  used by third-party payors.
  449         (c)Communicating information to member pharmacies
  450  regarding contractual and regulatory requirements.
  451         (d)Providing general and claims-specific assistance to
  452  member pharmacies by means of a help desk or a dedicated staff
  453  person.
  454         (e)Providing other services to help member pharmacies
  455  interact with third-party payors or with third-party payors’
  456  pharmacy benefit managers, such as managing and analyzing
  457  payment and drug-dispensing data to identify claims that are
  458  unpaid or incorrectly paid by third-party payors.
  459         (2)Effective January 1, 2021, to conduct business in this
  460  state, a PSAO must register with the office. To initially
  461  register or to renew a registration, a PSAO must submit all of
  462  the following:
  463         (a)A copy of the registrant’s corporate charter, articles
  464  of incorporation, or other charter document.
  465         (b)A completed registration form adopted by the commission
  466  containing:
  467         1.The name and address of the registrant; and
  468         2.The name, address, and official position of each officer
  469  and director of the registrant.
  470         (3)The registrant shall report any change in information
  471  required by subsection (2) to the office in writing within 60
  472  days after the change occurs.
  473         (4)Upon receipt of a completed registration form and the
  474  required documents, the office shall issue a registration
  475  certificate. The certificate may be in paper or electronic form
  476  and must clearly indicate the expiration date of the
  477  registration. Registration certificates are nontransferable.
  478         (5)A registration certificate is valid for 2 years after
  479  its date of issuance.
  480         (6)The commission may adopt rules to implement this
  481  section.
  482         Section 5. Section 627.42392, Florida Statutes, is amended
  483  to read:
  484         627.42392 Prior authorization.—
  485         (1) As used in this section, the term:
  486         (a)“Electronic prior authorization process” does not
  487  include transmissions through a facsimile machine.
  488         (b) “Health insurer” means an authorized insurer offering
  489  health insurance as defined in s. 624.603, a managed care plan
  490  as defined in s. 409.962(10), or a health maintenance
  491  organization as defined in s. 641.19(12).
  492         (2) Notwithstanding any other provision of law, effective
  493  January 1, 2017, or 6 six (6) months after the effective date of
  494  the rule adopting the prior authorization form, whichever is
  495  later, a health insurer, or a pharmacy benefit benefits manager
  496  on behalf of the health insurer, which does not provide an
  497  electronic prior authorization process for use by its contracted
  498  providers, shall only use the prior authorization form that has
  499  been approved by the Financial Services Commission for granting
  500  a prior authorization for a medical procedure, course of
  501  treatment, or prescription drug benefit. Such form may not
  502  exceed two pages in length, excluding any instructions or
  503  guiding documentation, and must include all clinical
  504  documentation necessary for the health insurer to make a
  505  decision. At a minimum, the form must include:
  506         (a)(1) Sufficient patient information to identify the
  507  member, date of birth, full name, and Health Plan ID number;
  508         (b)(2)The provider’s provider name, address, and phone
  509  number;
  510         (c)(3) The medical procedure, course of treatment, or
  511  prescription drug benefit being requested, including the medical
  512  reason therefor, and all services tried and failed;
  513         (d)(4) Any laboratory documentation required; and
  514         (e)(5) An attestation that all information provided is true
  515  and accurate.
  516         (3) The Financial Services Commission in consultation with
  517  the Agency for Health Care Administration shall adopt by rule
  518  guidelines for all prior authorization forms which ensure the
  519  general uniformity of such forms.
  520         (4) Electronic prior authorization approvals do not
  521  preclude benefit verification or medical review by the insurer
  522  under either the medical or pharmacy benefits.
  523         (5)Beginning January 1, 2020, a health insurer, or a
  524  pharmacy benefit manager on behalf of the health insurer, must
  525  establish and offer a secure, interactive online electronic
  526  prior authorization process for accepting electronic prior
  527  authorization forms. The process must allow a person seeking
  528  prior authorization the ability to upload documentation if such
  529  documentation is required by the health insurer or pharmacy
  530  benefit manager to adjudicate the prior authorization request.
  531         Section 6. Section 627.42393, Florida Statutes, is created
  532  to read:
  533         627.42393Fail first policies.—
  534         (1)As used in this section, the term:
  535         (a)“Fail first policy” means a written protocol that
  536  specifies the order in which a medical procedure, course of
  537  treatment, or prescription drug must be used to treat an
  538  insured’s condition.
  539         (b)“Health insurer” has the same meaning as in s.
  540  627.42392(1).
  541         (c)“Policy exemption” means a determination by a health
  542  insurer that a fail first policy is not medically appropriate or
  543  indicated for treatment for an insured’s condition and that the
  544  health insurer authorizes the use of another medical procedure,
  545  course of treatment, or prescription prescribed or recommended
  546  by the treating health care provider for the insured’s
  547  condition.
  548         (d)“Preceding prescription drug or medical treatment”
  549  means a medical procedure, course of treatment, or prescription
  550  drug that must be used pursuant to a health insurer’s fail first
  551  policy as a condition of coverage under a health insurance
  552  policy or a health maintenance contract to treat an insured’s
  553  condition.
  554         (e)“Urgent care situation” means an injury or condition of
  555  an insured which, if medical care and treatment are not provided
  556  earlier than the time generally considered by the medical
  557  profession to be reasonable for a nonurgent situation, in the
  558  opinion of the insured’s treating health care provider, would:
  559         1.Seriously jeopardize the insured’s life, health, or
  560  ability to regain maximum function; or
  561         2.Subject the insured to severe pain that cannot be
  562  adequately managed.
  563         (2)A health insurer must publish on its website and
  564  provide to an insured in writing a procedure for an insured and
  565  health care provider to request a policy exemption. The
  566  procedure must include all of the following:
  567         (a)A description of the manner in which the insured or
  568  health care provider may request a policy exemption.
  569         (b)The manner and timeframe in which the health insurer is
  570  required to authorize or deny a policy exemption request or
  571  respond to an appeal of the health insurer’s denial of a
  572  request.
  573         (c)The conditions under which the policy exemption must be
  574  granted.
  575         (3)(a)The health insurer must authorize or deny a policy
  576  exemption request or respond to an appeal of the health
  577  insurer’s authorization or denial of a request within:
  578         1.Seventy-two hours after obtaining a completed prior
  579  authorization form for a nonurgent care situation; or
  580         2.Twenty-four hours after obtaining a completed prior
  581  authorization form for an urgent care situation.
  582         (b)An authorization of the request must specify the
  583  approved medical procedure, course of treatment, or prescription
  584  drug benefits. The health insurer must grant a policy exemption
  585  request if the insured has previously received a preceding
  586  prescription drug or medical treatment that is in the same
  587  pharmacologic class or has the same mechanism of action, and
  588  such drug or treatment lacked efficacy or effectiveness or
  589  adversely affected the insured.
  590         (c)A denial of the request must include a detailed,
  591  written explanation of the reason for the denial, the clinical
  592  rationale that supports the denial, and the procedure to appeal
  593  the health insurer’s determination.
  594         (4)The health insurer may request a copy of relevant
  595  documentation from the insured’s medical record in support of a
  596  policy exemption request.
  597         Section 7. Present subsection (5) of section 627.64741,
  598  Florida Statutes, is redesignated as subsection (6) and amended,
  599  and a new subsection (5) is added to that section, to read:
  600         627.64741 Pharmacy benefit manager contracts.—
  601         (5)Beginning July 1, 2020, for all the plans it manages
  602  for health insurers or health maintenance organizations, a
  603  pharmacy benefit manager must publish an up-to-date, accurate,
  604  and complete list of all covered drugs on the plans’ formulary
  605  drug lists, including any tiered structure that it has adopted
  606  and any restriction on the manner in which a drug may be
  607  obtained. The formulary drug list must be easily accessible to
  608  the general public for viewing.
  609         (a)The list must be on the pharmacy benefit manager’s
  610  website and must be easily accessible through a clearly
  611  identifiable link or tab, without requiring an individual to
  612  create or access an account or to enter a policy number.
  613         (b)If the pharmacy benefit manager manages more than one
  614  plan for one or more health maintenance organizations or health
  615  insurers, an individual must be able to easily discern which
  616  formulary drug list applies to which plan.
  617         (6)(5) This section applies to contracts entered into or
  618  renewed on or after July 1, 2020 July 1, 2018.
  619         Section 8. Section 627.64742, Florida Statutes, is created
  620  to read:
  621         627.64742Cost-sharing fairness.—
  622         (1)As used in this section, the term:
  623         (a)“Enrollee” means an individual who is covered under a
  624  health insurance policy.
  625         (b)“Excess cost sharing” means a deductible, copayment, or
  626  coinsurance amount charged to an enrollee for a covered
  627  prescription drug which is greater than the amount that the
  628  enrollee’s health insurance policy issuer would pay absent that
  629  enrollee’s cost sharing, after accounting for rebates.
  630         (c)“Health insurance policy” means a policy, contract,
  631  certification, or agreement offered or issued by an issuer to
  632  provide, deliver, arrange for, pay for, or reimburse any of the
  633  costs of health services.
  634         (d)“Issuer” means an authorized health insurer that offers
  635  one or more health insurance policies to any person in this
  636  state.
  637         (e)“Rebate” means:
  638         1.A negotiated price concession, including, but not
  639  limited to, a base rebate and a reasonable estimate of price
  640  protection rebates and performance-based rebates, which may
  641  accrue directly or indirectly to the issuer during the coverage
  642  year from a manufacturer, dispensing pharmacy, or other party to
  643  the transaction; and
  644         2.A reasonable estimate of any fee and administrative cost
  645  that are passed on to the issuer and serve to reduce the
  646  issuer’s prescription drug liabilities for the coverage year.
  647         (2)An issuer that plans to charge enrollees cost-sharing
  648  amounts that could result in excess cost sharing for a covered
  649  prescription drug must disclose to enrollees and prospective
  650  enrollees the fact that enrollees could be subject to such
  651  excess cost sharing. Such notice must be provided in health
  652  insurance policy documents, including, but not limited to, in
  653  evidence of coverage materials, formulary or preferred drug
  654  guides, and all marketing materials.
  655         (3)An issuer must strive to make available to enrollees at
  656  the point of sale an amount greater than 50 percent of the
  657  rebates.
  658         (4)An issuer shall annually report to the office whether
  659  it made more than 50 percent of the rebates available to its
  660  enrollees during the prior benefit year.
  661         (5)In making the required disclosures and in offering
  662  certifications under this section, an issuer may not publish or
  663  otherwise reveal information regarding the amount of rebates it
  664  receives, including, but not limited to, information regarding
  665  the amount of rebates it receives on a product-, manufacturer-,
  666  or pharmacy-specific basis. Such information is protected as a
  667  trade secret under applicable law, is not subject to public
  668  records requirements under s. 119.07(1) or s. 24(a), Art. I of
  669  the State Constitution, and may not be disclosed directly or
  670  indirectly. An issuer shall impose the confidentiality
  671  protections of this subsection on a vendor or downstream third
  672  party that performs health care or administrative services on
  673  behalf of the issuer and may receive or have access to rebate
  674  information.
  675         Section 9. Present subsection (5) of section 627.6572,
  676  Florida Statutes, is redesignated as subsection (6) and amended,
  677  and a new subsection (5) is added to that section, to read:
  678         627.6572 Pharmacy benefit manager contracts.—
  679         (5)Beginning July 1, 2020, for all the plans it manages
  680  for health insurers or health maintenance organizations, a
  681  pharmacy benefit manager must publish an up-to-date, accurate,
  682  and complete list of all covered drugs on the plans’ formulary
  683  drug lists, including any tiered structure that it has adopted
  684  and any restriction on the manner in which a drug can be
  685  obtained. The formulary drug list must be easily accessible to
  686  the general public for viewing.
  687         (a)The list must be on the pharmacy benefit manager’s
  688  website and must be easily accessible through a clearly
  689  identifiable link or tab, without requiring an individual to
  690  create or access an account or enter a policy number.
  691         (b)If the pharmacy benefit manager manages more than one
  692  plan for one or more health maintenance organizations or health
  693  insurers, an individual must be able to easily discern which
  694  formulary drug list applies to which plan.
  695         (6)(5) This section applies to contracts entered into or
  696  renewed on or after July 1, 2020 July 1, 2018.
  697         Section 10. Section 627.66998, Florida Statutes, is created
  698  to read:
  699         627.66998Cost-sharing fairness.—
  700         (1)As used in this section, the term:
  701         (a)“Enrollee” means an individual who is covered under a
  702  health benefit plan policy.
  703         (b)“Excess cost sharing” means a deductible, copayment, or
  704  coinsurance amount charged to an enrollee for a covered
  705  prescription drug which is greater than the amount that the
  706  enrollee’s health benefit plan issuer would pay absent that
  707  enrollee’s cost sharing, after accounting for rebates.
  708         (c)“Health benefit plan” means a policy, contract,
  709  certification, or agreement offered or issued by an issuer to
  710  provide, deliver, arrange for, pay for, or reimburse any of the
  711  costs of health services.
  712         (d)“Issuer” means an authorized health insurer that offers
  713  one or more health benefit plans to any person in this state.
  714         (e)“Rebate” means:
  715         1.A negotiated price concession, including, but not
  716  limited to, a base rebate and a reasonable estimate of price
  717  protection rebates and performance-based rebates, which may
  718  accrue directly or indirectly to the issuer during the coverage
  719  year from a manufacturer, dispensing pharmacy, or other party to
  720  the transaction; and
  721         2.A reasonable estimate of any fee and administrative cost
  722  that are passed on to the issuer and serve to reduce the
  723  issuer’s prescription drug liabilities for the coverage year.
  724         (2)An issuer that plans to charge enrollees cost-sharing
  725  amounts that could result in excess cost sharing for a covered
  726  prescription drug must disclose to enrollees and prospective
  727  enrollees the fact that enrollees could be subject to such
  728  excess cost sharing. Such notice must be provided in health
  729  benefit plan documents, including, but not limited to, in
  730  evidence of coverage materials, formulary or preferred drug
  731  guides, and all marketing materials.
  732         (3)An issuer must strive to make available to enrollees at
  733  the point of sale an amount greater than 50 percent of the
  734  rebates.
  735         (4)An issuer shall annually report to the office whether
  736  it made more than 50 percent of the rebates available to the
  737  enrollees during the prior benefit year.
  738         (5)In making the required disclosures and in offering
  739  certifications under this section, an issuer may not publish or
  740  otherwise reveal information regarding the amount of rebates it
  741  receives, including, but not limited to, information regarding
  742  the amount of rebates it receives on a product-, manufacturer-,
  743  or pharmacy-specific basis. Such information is protected as a
  744  trade secret under applicable law, is not subject to public
  745  records requirements under s. 119.07(1) or s. 24(a), Art. I of
  746  the State Constitution, and may not be disclosed directly or
  747  indirectly. An issuer shall impose the confidentiality
  748  protections of this subsection on a vendor or downstream third
  749  party that performs health care or administrative services on
  750  behalf of the issuer and may receive or have access to rebate
  751  information.
  752         Section 11. Present subsection (5) of section 641.314,
  753  Florida Statutes, is redesignated as subsection (6) and amended,
  754  and a new subsection (5) is added to that section, to read:
  755         641.314 Pharmacy benefit manager contracts.—
  756         (5)Beginning July 1, 2020, for all the plans it manages
  757  for health insurers or health maintenance organizations, a
  758  pharmacy benefit manager must publish an up-to-date, accurate,
  759  and complete list of all covered drugs on the plans’ formulary
  760  drug lists, including any tiered structure that it has adopted
  761  and any restriction on the manner in which a drug can be
  762  obtained. The formulary drug list must be easily accessible to
  763  the general public for viewing.
  764         (a)The list must be on the pharmacy benefit manager’s
  765  website and must be easily accessible through a clearly
  766  identifiable link or tab, without requiring an individual to
  767  create or access an account or enter a policy number.
  768         (b)If the pharmacy benefit manager manages more than one
  769  plan for one or more health maintenance organizations or health
  770  insurers, an individual must be able to easily discern which
  771  formulary drug list applies to which plan.
  772         (6)(5) This section applies to contracts entered into or
  773  renewed on or after July 1, 2020 July 1, 2018.
  774         Section 12. Section 641.3924, Florida Statutes, is created
  775  to read:
  776         641.3924Cost-sharing fairness.—
  777         (1)As used in this section, the term:
  778         (a)“Excess cost sharing” means a deductible, copayment, or
  779  coinsurance amount charged to a subscriber for a covered
  780  prescription drug which is greater than the amount that the
  781  subscriber’s health benefit plan issuer would pay absent that
  782  subscriber’s cost sharing, after accounting for rebates.
  783         (b)“Issuer” means a health maintenance organization that
  784  offers one or more health benefit plans to any person in this
  785  state.
  786         (c)“Rebate” means:
  787         1.A negotiated price concession, including, but not
  788  limited to, a base rebate and a reasonable estimate of price
  789  protection rebates and performance-based rebates, which may
  790  accrue directly or indirectly to the issuer during the coverage
  791  year from a manufacturer, dispensing pharmacy, or other party to
  792  the transaction; and
  793         2.A reasonable estimate of any fee and administrative cost
  794  that are passed on to the issuer and serve to reduce the
  795  issuer’s prescription drug liabilities for the coverage year.
  796         (2)An issuer that plans to charge subscribers cost-sharing
  797  amounts that could result in excess cost sharing for a covered
  798  prescription drug must disclose to subscribers and prospective
  799  subscribers the fact that subscribers could be subject to such
  800  excess cost sharing. Such notice must be provided in health
  801  maintenance contract documents, including, but not limited to,
  802  in evidence of coverage materials, formulary or preferred drug
  803  guides, and all marketing materials.
  804         (3)An issuer must strive to make available to subscribers
  805  at the point of sale an amount greater than 50 percent of the
  806  rebates.
  807         (4)An issuer shall annually report to the office whether
  808  it made more than 50 percent of the rebates available to the
  809  subscribers during the prior benefit year.
  810         (5)In making the required disclosures under this section,
  811  an issuer may not publish or otherwise reveal information
  812  regarding the amount of rebates it receives, including, but not
  813  limited to, information regarding the amount of rebates it
  814  receives on a product-, manufacturer-, or pharmacy-specific
  815  basis. Such information is protected as a trade secret under
  816  applicable law, is not subject to public records requirements
  817  under s. 119.07(1) or s. 24(a), Art. I of the State
  818  Constitution, and may not be disclosed directly or indirectly.
  819  An issuer shall impose the confidentiality protections of this
  820  subsection on a vendor or downstream third party that performs
  821  health care or administrative services on behalf of the issuer
  822  and may receive or have access to rebate information.
  823         Section 13. This act shall take effect January 1, 2020.