Florida Senate - 2020                                     SB 696
       
       
        
       By Senator Mayfield
       
       
       
       
       
       17-00130I-20                                           2020696__
    1                        A bill to be entitled                      
    2         An act relating to prescription drug coverage;
    3         creating s. 627.42394, F.S.; requiring individual and
    4         group health insurers to provide notice of
    5         prescription drug formulary changes to current and
    6         prospective insureds and the insureds’ treating
    7         physicians; specifying the timeframe and manner in
    8         which such notice must be provided; specifying
    9         requirements for a notice of medical necessity
   10         submitted by the treating physician; authorizing
   11         insurers to provide certain means for submitting the
   12         notice of medical necessity; requiring the Financial
   13         Services Commission to adopt a certain form by rule by
   14         a specified date; specifying a coverage requirement
   15         and restrictions on coverage modification by insurers
   16         receiving such notice; providing construction and
   17         applicability; requiring insurers to maintain a record
   18         of formulary changes; requiring insurers to annually
   19         submit a specified report to the Office of Insurance
   20         Regulation; requiring the office to annually compile
   21         certain data, prepare a report and make the report
   22         publicly accessible on its website, and submit the
   23         report to the Governor and the Legislature; creating
   24         s. 627.6404, F.S.; requiring insurers to apply certain
   25         reductions in out-of-pocket expenses for prescription
   26         drugs toward an insured’s cost-sharing obligation;
   27         creating s. 627.64742, F.S.; defining the term
   28         “pharmacy benefit manager”; requiring pharmacy benefit
   29         managers to annually file with the office a specified
   30         report relating to payments collected from
   31         pharmaceutical manufacturers; requiring the office to
   32         publish such reports on its website within a certain
   33         timeframe; authorizing the commission to adopt rules;
   34         amending s. 627.6699, F.S.; requiring small employer
   35         carriers to comply with certain requirements for
   36         prescription drug formulary changes; amending s.
   37         641.31, F.S.; requiring health maintenance
   38         organizations to provide notice of prescription drug
   39         formulary changes to current and prospective
   40         subscribers and the subscribers’ treating physicians;
   41         specifying the timeframe and manner in which such
   42         notice must be provided; specifying requirements for a
   43         notice of medical necessity submitted by the treating
   44         physician; authorizing health maintenance
   45         organizations to provide certain means for submitting
   46         the notice of medical necessity; requiring the
   47         commission to adopt a certain form by rule by a
   48         specified date; specifying a coverage requirement and
   49         restrictions on coverage modification by health
   50         maintenance organizations receiving such notice;
   51         providing construction and applicability; requiring
   52         health maintenance organizations to maintain a record
   53         of formulary changes; requiring health maintenance
   54         organizations to annually submit a specified report to
   55         the office; requiring the office to annually compile
   56         certain data, prepare a report and make the report
   57         publicly accessible on its website, and submit the
   58         report to the Governor and the Legislature; creating
   59         s. 641.3157, F.S.; requiring health maintenance
   60         organizations to apply certain reductions in out-of
   61         pocket expenses for prescription drugs toward a
   62         subscriber’s cost-sharing obligation; providing
   63         applicability; providing a declaration of important
   64         state interest; providing an effective date.
   65          
   66  Be It Enacted by the Legislature of the State of Florida:
   67  
   68         Section 1. Section 627.42394, Florida Statutes, is created
   69  to read:
   70         627.42394Health insurance policies; changes to
   71  prescription drug formularies; requirements.—
   72         (1)At least 60 days before the effective date of any
   73  change to a prescription drug formulary during a policy year, an
   74  insurer issuing individual or group health insurance policies in
   75  this state shall:
   76         (a)Provide notification of the change in the formulary to
   77  current and prospective insureds in a readily accessible format
   78  on the insurer’s website; and
   79         (b)Notify, electronically and by first-class mail, any
   80  insured currently receiving coverage for a prescription drug for
   81  which the formulary change modifies coverage and the insured’s
   82  treating physician, including information on the specific drugs
   83  involved and a statement that the submission of a notice of
   84  medical necessity by the insured’s treating physician to the
   85  insurer at least 30 days before the effective date of the
   86  formulary change will result in continuation of coverage at the
   87  existing level.
   88         (2)The notice provided by the treating physician to the
   89  insurer must include a completed one-page form in which the
   90  treating physician certifies to the insurer that the
   91  prescription drug for the insured is medically necessary as
   92  defined under s. 627.732(2). The treating physician shall submit
   93  the notice electronically or by first-class mail. The insurer
   94  may provide the treating physician with access to an electronic
   95  portal through which the treating physician may electronically
   96  submit the notice. By January 1, 2021, the commission shall
   97  adopt by rule a form for the notice.
   98         (3)If the treating physician certifies to the insurer in
   99  accordance with subsection (2) that the prescription drug is
  100  medically necessary for the insured, the insurer:
  101         (a)Must authorize coverage for the prescribed drug until
  102  the end of the policy year, based solely on the treating
  103  physician’s certification that the drug is medically necessary;
  104  and
  105         (b)May not modify the coverage related to the covered drug
  106  during the policy year by:
  107         1.Increasing the out-of-pocket costs for the covered drug;
  108         2.Moving the covered drug to a more restrictive tier;
  109         3.Denying an insured coverage of the drug for which the
  110  insured has been previously approved for coverage by the
  111  insurer; or
  112         4.Limiting or reducing coverage of the drug in any other
  113  way, including subjecting it to a new prior authorization or
  114  step therapy requirement.
  115         (4)Subsections (1), (2), and (3) do not:
  116         (a) Prohibit the addition of prescription drugs to the list
  117  of drugs covered under the policy during the policy year.
  118         (b)Apply to a grandfathered health plan as defined in s.
  119  627.402 or to benefits specified in s. 627.6513(1)-(14).
  120         (c)Alter or amend s. 465.025, which provides conditions
  121  under which a pharmacist may substitute a generically equivalent
  122  drug product for a brand name drug product.
  123         (d)Alter or amend s. 465.0252, which provides conditions
  124  under which a pharmacist may dispense a substitute biological
  125  product for the prescribed biological product.
  126         (e) Apply to a Medicaid managed care plan under part IV of
  127  chapter 409.
  128         (5) A health insurer shall maintain a record of any change
  129  in its formulary during a calendar year. By March 1 annually, a
  130  health insurer shall submit to the office a report delineating
  131  such changes made in the previous calendar year. The annual
  132  report must include, at a minimum:
  133         (a) A list of all drugs that were removed from the
  134  formulary and the reasons for the removal;
  135         (b) A list of all drugs that were moved to a tier resulting
  136  in additional out-of-pocket costs to insureds;
  137         (c) The number of insureds notified by the insurer of a
  138  change in the formulary; and
  139         (d) The increased cost, by dollar amount, incurred by
  140  insureds because of such change in the formulary.
  141         (6) By May 1 annually, the office shall:
  142         (a) Compile the data in such annual reports submitted by
  143  health insurers and prepare a report summarizing the data
  144  submitted;
  145         (b) Make the report publicly accessible on its website; and
  146         (c) Submit the report to the Governor, the President of the
  147  Senate, and the Speaker of the House of Representatives.
  148         Section 2. Section 627.6404, Florida Statutes, is created
  149  to read:
  150         627.6404 Application of reductions to insured cost-sharing
  151  obligations.—An insurer shall apply any third-party payment,
  152  financial assistance, discount, patient voucher, or other
  153  reduction in out-of-pocket expenses made by or on behalf of an
  154  insured for prescription drugs toward the insured’s deductible,
  155  copay, cost-sharing responsibility, or out-of-pocket maximum
  156  associated with the insured’s policy.
  157         Section 3. Section 627.64742, Florida Statutes, is created
  158  to read:
  159         627.64742 Pharmacy benefit manager annual reporting.—
  160         (1)As used in this section, the term “pharmacy benefit
  161  manager” has the same meaning as provided in s. 627.64741(1). By
  162  March 1, 2021, and every March 1 thereafter, each pharmacy
  163  benefit manager shall file a report with the office. The report
  164  must contain the following information for the immediately
  165  preceding calendar year:
  166         (a)The aggregated dollar amount of rebates, fees, price
  167  protection payments, and other payments collected from
  168  pharmaceutical manufacturers;
  169         (b)The aggregated dollar amount of rebates, fees, price
  170  protection payments, and other payments collected from
  171  pharmaceutical manufacturers which was passed to health insurers
  172  or health maintenance organizations authorized under chapter
  173  624; and
  174         (c)The aggregated dollar amount of rebates, fees, price
  175  protection payments, and other payments collected from
  176  pharmaceutical manufacturers which was passed to insureds at the
  177  point of sale.
  178         (2)The office shall publish on its website the reports
  179  received under subsection (1) within 60 days after receipt.
  180         (3)The commission may adopt rules to administer this
  181  section.
  182         Section 4. Paragraph (e) of subsection (5) of section
  183  627.6699, Florida Statutes, is amended to read:
  184         627.6699 Employee Health Care Access Act.—
  185         (5) AVAILABILITY OF COVERAGE.—
  186         (e) All health benefit plans issued under this section must
  187  comply with the following conditions:
  188         1. For employers who have fewer than two employees, a late
  189  enrollee may be excluded from coverage for no longer than 24
  190  months if he or she was not covered by creditable coverage
  191  continually to a date not more than 63 days before the effective
  192  date of his or her new coverage.
  193         2. Any requirement used by a small employer carrier in
  194  determining whether to provide coverage to a small employer
  195  group, including requirements for minimum participation of
  196  eligible employees and minimum employer contributions, must be
  197  applied uniformly among all small employer groups having the
  198  same number of eligible employees applying for coverage or
  199  receiving coverage from the small employer carrier, except that
  200  a small employer carrier that participates in, administers, or
  201  issues health benefits pursuant to s. 381.0406 which do not
  202  include a preexisting condition exclusion may require as a
  203  condition of offering such benefits that the employer has had no
  204  health insurance coverage for its employees for a period of at
  205  least 6 months. A small employer carrier may vary application of
  206  minimum participation requirements and minimum employer
  207  contribution requirements only by the size of the small employer
  208  group.
  209         3. In applying minimum participation requirements with
  210  respect to a small employer, a small employer carrier shall not
  211  consider as an eligible employee employees or dependents who
  212  have qualifying existing coverage in an employer-based group
  213  insurance plan or an ERISA qualified self-insurance plan in
  214  determining whether the applicable percentage of participation
  215  is met. However, a small employer carrier may count eligible
  216  employees and dependents who have coverage under another health
  217  plan that is sponsored by that employer.
  218         4. A small employer carrier shall not increase any
  219  requirement for minimum employee participation or any
  220  requirement for minimum employer contribution applicable to a
  221  small employer at any time after the small employer has been
  222  accepted for coverage, unless the employer size has changed, in
  223  which case the small employer carrier may apply the requirements
  224  that are applicable to the new group size.
  225         5. If a small employer carrier offers coverage to a small
  226  employer, it must offer coverage to all the small employer’s
  227  eligible employees and their dependents. A small employer
  228  carrier may not offer coverage limited to certain persons in a
  229  group or to part of a group, except with respect to late
  230  enrollees.
  231         6. A small employer carrier may not modify any health
  232  benefit plan issued to a small employer with respect to a small
  233  employer or any eligible employee or dependent through riders,
  234  endorsements, or otherwise to restrict or exclude coverage for
  235  certain diseases or medical conditions otherwise covered by the
  236  health benefit plan.
  237         7. An initial enrollment period of at least 30 days must be
  238  provided. An annual 30-day open enrollment period must be
  239  offered to each small employer’s eligible employees and their
  240  dependents. A small employer carrier must provide special
  241  enrollment periods as required by s. 627.65615.
  242         8. A small employer carrier shall comply with s. 627.42394
  243  for any change to a prescription drug formulary.
  244         Section 5. Subsection (36) of section 641.31, Florida
  245  Statutes, is amended to read:
  246         641.31 Health maintenance contracts.—
  247         (36) Except as provided in paragraphs (a), (b), and (c), a
  248  health maintenance organization may increase the copayment for
  249  any benefit, or delete, amend, or limit any of the benefits to
  250  which a subscriber is entitled under the group contract only,
  251  upon written notice to the contract holder at least 45 days in
  252  advance of the time of coverage renewal. The health maintenance
  253  organization may amend the contract with the contract holder,
  254  with such amendment to be effective immediately at the time of
  255  coverage renewal. The written notice to the contract holder must
  256  shall specifically identify any deletions, amendments, or
  257  limitations to any of the benefits provided in the group
  258  contract during the current contract period which will be
  259  included in the group contract upon renewal. This subsection
  260  does not apply to any increases in benefits. The 45-day notice
  261  requirement does shall not apply if benefits are amended,
  262  deleted, or limited at the request of the contract holder.
  263         (a) At least 60 days before the effective date of any
  264  change to a prescription drug formulary during a contract year,
  265  a health maintenance organization shall:
  266         1.Provide notification of the change in the formulary to
  267  current and prospective subscribers in a readily accessible
  268  format on the health maintenance organization’s website; and
  269         2.Notify, electronically and by first-class mail, any
  270  subscriber currently receiving coverage for a prescription drug
  271  for which the formulary change modifies coverage and the
  272  subscriber’s treating physician, including information on the
  273  specific drugs involved and a statement that the submission of a
  274  notice of medical necessity by the subscriber’s treating
  275  physician to the health maintenance organization at least 30
  276  days before the effective date of the formulary change will
  277  result in continuation of coverage at the existing level.
  278         (b)The notice provided by the treating physician to the
  279  health maintenance organization must include a completed one
  280  page form in which the treating physician certifies to the
  281  health maintenance organization that the prescription drug for
  282  the subscriber is medically necessary as defined under s.
  283  627.732(2). The treating physician shall submit the notice
  284  electronically or by first-class mail. The health maintenance
  285  organization may provide the treating physician with access to
  286  an electronic portal through which the treating physician may
  287  electronically submit the notice. By January 1, 2021, the
  288  commission shall adopt by rule a form for the notice.
  289         (c)If the treating physician certifies to the health
  290  maintenance organization in accordance with paragraph (b) that
  291  the prescription drug is medically necessary for the subscriber,
  292  the health maintenance organization:
  293         1.Must authorize coverage for the prescribed drug until
  294  the end of the contract year, based solely on the treating
  295  physician’s certification that the drug is medically necessary;
  296  and
  297         2.May not modify the coverage related to the covered drug
  298  during the contract year by:
  299         a.Increasing the out-of-pocket costs for the covered drug;
  300         b.Moving the covered drug to a more restrictive tier;
  301         c.Denying a subscriber coverage of the drug for which the
  302  subscriber has been previously approved for coverage by the
  303  health maintenance organization; or
  304         d.Limiting or reducing coverage of the drug in any other
  305  way, including subjecting it to a new prior authorization or
  306  step therapy requirement.
  307         (d)Paragraphs (a), (b), and (c) do not:
  308         1. Prohibit the addition of prescription drugs to the list
  309  of drugs covered under the contract during the contract year.
  310         2. Apply to a grandfathered health plan as defined in s.
  311  627.402 or to benefits specified in s. 627.6513(1)-(14).
  312         3. Alter or amend s. 465.025, which provides conditions
  313  under which a pharmacist may substitute a generically equivalent
  314  drug product for a brand name drug product.
  315         4. Alter or amend s. 465.0252, which provides conditions
  316  under which a pharmacist may dispense a substitute biological
  317  product for the prescribed biological product.
  318         5. Apply to a Medicaid managed care plan under part IV of
  319  chapter 409.
  320         (e) A health maintenance organization shall maintain a
  321  record of any change in its formulary during a calendar year. By
  322  March 1 annually, a health maintenance organization shall submit
  323  to the office a report delineating such changes made in the
  324  previous calendar year. The annual report must include, at a
  325  minimum:
  326         1. A list of all drugs that were removed from the formulary
  327  and the reasons for the removal;
  328         2. A list of all drugs that were moved to a tier resulting
  329  in additional out-of-pocket costs to subscribers;
  330         3. The number of subscribers notified by the health
  331  maintenance organization of a change in the formulary; and
  332         4. The increased cost, by dollar amount, incurred by
  333  subscribers because of such change in the formulary.
  334         (f) By May 1 annually, the office shall:
  335         1. Compile the data in such annual reports submitted by
  336  health maintenance organizations and prepare a report
  337  summarizing the data submitted;
  338         2. Make the report publicly accessible on its website; and
  339         3. Submit the report to the Governor, the President of the
  340  Senate, and the Speaker of the House of Representatives.
  341         Section 6. Section 641.3157, Florida Statutes, is created
  342  to read:
  343         641.3157 Application of reductions to subscriber cost
  344  sharing obligations.—A health maintenance organization shall
  345  apply any third-party payment, financial assistance, discount,
  346  patient voucher, or other reduction in out-of-pocket expenses
  347  made by or on behalf of a subscriber for prescription drugs
  348  toward a subscriber’s deductible, copay, cost-sharing
  349  responsibility, or out-of-pocket maximum associated with the
  350  subscriber’s health maintenance contract.
  351         Section 7. This act applies to health insurance policies,
  352  health benefit plans, and health maintenance contracts entered
  353  into or renewed on or after January 1, 2021.
  354         Section 8. The Legislature finds that this act fulfills an
  355  important state interest.
  356         Section 9. This act shall take effect July 1, 2020.