Florida Senate - 2021 CS for SB 390
By the Committee on Banking and Insurance; and Senator Wright
597-02931-21 2021390c1
1 A bill to be entitled
2 An act relating to prescription drug coverage;
3 amending s. 624.3161, F.S.; authorizing the Office of
4 Insurance Regulation to examine pharmacy benefit
5 managers; specifying that certain examination costs
6 are payable by persons examined; transferring,
7 renumbering, and amending s. 465.1885, F.S.; revising
8 the entities conducting pharmacy audits to which
9 certain requirements and restrictions apply;
10 authorizing audited pharmacies to appeal certain
11 findings; providing that health insurers and health
12 maintenance organizations that transfer a certain
13 payment obligation to pharmacy benefit managers remain
14 responsible for certain violations; amending ss.
15 627.64741 and 627.6572, F.S.; authorizing the office
16 to require health insurers to submit to the office
17 certain contracts or contract amendments entered into
18 with pharmacy benefit managers; authorizing the office
19 to order health insurers to cancel such contracts
20 under certain circumstances; authorizing the
21 commission to adopt rules; revising applicability;
22 amending s. 627.6699, F.S.; requiring certain health
23 benefit plans covering small employers to comply with
24 certain provisions; amending s. 641.314, F.S.;
25 authorizing the office to require health maintenance
26 organizations to submit to the office certain
27 contracts or contract amendments entered into with
28 pharmacy benefit managers; authorizing the office to
29 order health maintenance organizations to cancel such
30 contracts under certain circumstances; authorizing the
31 commission to adopt rules; revising applicability;
32 providing an effective date.
33
34 Be It Enacted by the Legislature of the State of Florida:
35
36 Section 1. Subsections (1) and (3) of section 624.3161,
37 Florida Statutes, are amended to read:
38 624.3161 Market conduct examinations.—
39 (1) As often as it deems necessary, the office shall
40 examine each pharmacy benefit manager as defined in s. 624.490;
41 each licensed rating organization;, each advisory organization;,
42 each group, association, carrier, as defined in s. 440.02, or
43 other organization of insurers which engages in joint
44 underwriting or joint reinsurance;, and each authorized insurer
45 transacting in this state any class of insurance to which the
46 provisions of chapter 627 are applicable. The examination shall
47 be for the purpose of ascertaining compliance by the person
48 examined with the applicable provisions of chapters 440, 624,
49 626, 627, and 635.
50 (3) The examination may be conducted by an independent
51 professional examiner under contract to the office, in which
52 case payment shall be made directly to the contracted examiner
53 by the insurer or person examined in accordance with the rates
54 and terms agreed to by the office and the examiner.
55 Section 2. Section 465.1885, Florida Statutes, is
56 transferred, renumbered as section 624.491, Florida Statutes,
57 and amended to read:
58 624.491 465.1885 Pharmacy audits; rights.—
59 (1) A health insurer or health maintenance organization
60 providing pharmacy benefits through a major medical individual
61 or group health insurance policy or a health maintenance
62 organization contract, respectively, shall comply with the
63 requirements of this section when the insurer or health
64 maintenance organization or any person or entity acting on
65 behalf of the insurer or health maintenance organization,
66 including, but not limited to, a pharmacy benefit manager as
67 defined in s. 624.490, audits the records of a pharmacy licensed
68 under chapter 465. The person or entity conducting such audit
69 must If an audit of the records of a pharmacy licensed under
70 this chapter is conducted directly or indirectly by a managed
71 care company, an insurance company, a third-party payor, a
72 pharmacy benefit manager, or an entity that represents
73 responsible parties such as companies or groups, referred to as
74 an “entity” in this section, the pharmacy has the following
75 rights:
76 (a) Except as provided in subsection (3), notify the
77 pharmacy To be notified at least 7 calendar days before the
78 initial onsite audit for each audit cycle.
79 (b) Not schedule an To have the onsite audit during
80 scheduled after the first 3 calendar days of a month unless the
81 pharmacist consents otherwise.
82 (c) Limit the duration of To have the audit period limited
83 to 24 months after the date a claim is submitted to or
84 adjudicated by the entity.
85 (d) In the case of To have an audit that requires clinical
86 or professional judgment, conduct the audit in consultation
87 with, or allow the audit to be conducted by, or in consultation
88 with a pharmacist.
89 (e) Allow the pharmacy to use the written and verifiable
90 records of a hospital, physician, or other authorized
91 practitioner, which are transmitted by any means of
92 communication, to validate the pharmacy records in accordance
93 with state and federal law.
94 (f) Reimburse the pharmacy To be reimbursed for a claim
95 that was retroactively denied for a clerical error,
96 typographical error, scrivener’s error, or computer error if the
97 prescription was properly and correctly dispensed, unless a
98 pattern of such errors exists, fraudulent billing is alleged, or
99 the error results in actual financial loss to the entity.
100 (g) Provide the pharmacy with a copy of To receive the
101 preliminary audit report within 120 days after the conclusion of
102 the audit.
103 (h) Allow the pharmacy to produce documentation to address
104 a discrepancy or audit finding within 10 business days after the
105 preliminary audit report is delivered to the pharmacy.
106 (i) Provide the pharmacy with a copy of To receive the
107 final audit report within 6 months after receipt of receiving
108 the preliminary audit report.
109 (j) Calculate any To have recoupment or penalties based on
110 actual overpayments and not according to the accounting practice
111 of extrapolation.
112 (2) The rights contained in This section does do not apply
113 to:
114 (a) Audits in which suspected fraudulent activity or other
115 intentional or willful misrepresentation is evidenced by a
116 physical review, review of claims data or statements, or other
117 investigative methods;
118 (b) Audits of claims paid for by federally funded programs;
119 or
120 (c) Concurrent reviews or desk audits that occur within 3
121 business days after of transmission of a claim and where no
122 chargeback or recoupment is demanded.
123 (3) An entity that audits a pharmacy located within a
124 Health Care Fraud Prevention and Enforcement Action Team (HEAT)
125 Task Force area designated by the United States Department of
126 Health and Human Services and the United States Department of
127 Justice may dispense with the notice requirements of paragraph
128 (1)(a) if such pharmacy has been a member of a credentialed
129 provider network for less than 12 months.
130 (4) Pursuant to s. 408.7057, and after receipt of the final
131 audit report issued by the health insurer or health maintenance
132 organization, a pharmacy may appeal the findings of the final
133 audit as to whether a claim payment is due and as to the amount
134 of a claim payment.
135 (5) A health insurer or health maintenance organization
136 that, under terms of a contract, transfers to a pharmacy benefit
137 manager the obligation to pay any pharmacy licensed under
138 chapter 465 for any pharmacy benefit claims arising from
139 services provided to or for the benefit of any insured or
140 subscriber remains responsible for any violations of this
141 section, s. 627.6131, or s. 641.3155, as applicable.
142 Section 3. Section 627.64741, Florida Statutes, is amended
143 to read:
144 627.64741 Pharmacy benefit manager contracts.—
145 (1) As used in this section, the term:
146 (a) “Maximum allowable cost” means the per-unit amount that
147 a pharmacy benefit manager reimburses a pharmacist for a
148 prescription drug, excluding dispensing fees, prior to the
149 application of copayments, coinsurance, and other cost-sharing
150 charges, if any.
151 (b) “Pharmacy benefit manager” means a person or entity
152 doing business in this state which contracts to administer or
153 manage prescription drug benefits on behalf of a health insurer
154 to residents of this state.
155 (2) A health insurer may contract only with a pharmacy
156 benefit manager that satisfies all of the following conditions A
157 contract between a health insurer and a pharmacy benefit manager
158 must require that the pharmacy benefit manager:
159 (a) Updates Update maximum allowable cost pricing
160 information at least every 7 calendar days.
161 (b) Maintains Maintain a process that will, in a timely
162 manner, will eliminate drugs from maximum allowable cost lists
163 or modify drug prices to remain consistent with changes in
164 pricing data used in formulating maximum allowable cost prices
165 and product availability.
166 (c)(3) Does not limit A contract between a health insurer
167 and a pharmacy benefit manager must prohibit the pharmacy
168 benefit manager from limiting a pharmacist’s ability to disclose
169 whether the cost-sharing obligation exceeds the retail price for
170 a covered prescription drug, and the availability of a more
171 affordable alternative drug, pursuant to s. 465.0244.
172 (d)(4) Does not require A contract between a health insurer
173 and a pharmacy benefit manager must prohibit the pharmacy
174 benefit manager from requiring an insured to make a payment for
175 a prescription drug at the point of sale in an amount that
176 exceeds the lesser of:
177 1.(a) The applicable cost-sharing amount; or
178 2.(b) The retail price of the drug in the absence of
179 prescription drug coverage.
180 (3) The office may require a health insurer to submit to
181 the office any contract or amendments to a contract for the
182 administration or management of prescription drug benefits by a
183 pharmacy benefit manager on behalf of the insurer.
184 (4) After review of a contract submitted under subsection
185 (3), the office may order the insurer to cancel the contract in
186 accordance with the terms of the contract and applicable law if
187 the office determines that any of the following conditions
188 exist:
189 (a) The contract does not comply with this section or any
190 other provision of the Florida Insurance Code.
191 (b) The pharmacy benefit manager is not registered with the
192 office as required under s. 624.490.
193 (5) The commission may adopt rules to administer this
194 section.
195 (6)(5) This section applies to contracts entered into,
196 amended, or renewed on or after July 1, 2021 2018. All contracts
197 entered into or renewed between July 1, 2018, and June 30, 2021,
198 are governed by the law in effect at the time the contract was
199 entered into or renewed.
200 Section 4. Section 627.6572, Florida Statutes, is amended
201 to read:
202 627.6572 Pharmacy benefit manager contracts.—
203 (1) As used in this section, the term:
204 (a) “Maximum allowable cost” means the per-unit amount that
205 a pharmacy benefit manager reimburses a pharmacist for a
206 prescription drug, excluding dispensing fees, prior to the
207 application of copayments, coinsurance, and other cost-sharing
208 charges, if any.
209 (b) “Pharmacy benefit manager” means a person or entity
210 doing business in this state which contracts to administer or
211 manage prescription drug benefits on behalf of a health insurer
212 to residents of this state.
213 (2) A health insurer may contract only with a pharmacy
214 benefit manager that satisfies all of the following conditions A
215 contract between a health insurer and a pharmacy benefit manager
216 must require that the pharmacy benefit manager:
217 (a) Updates Update maximum allowable cost pricing
218 information at least every 7 calendar days.
219 (b) Maintains Maintain a process that will, in a timely
220 manner, will eliminate drugs from maximum allowable cost lists
221 or modify drug prices to remain consistent with changes in
222 pricing data used in formulating maximum allowable cost prices
223 and product availability.
224 (c)(3) Does not limit A contract between a health insurer
225 and a pharmacy benefit manager must prohibit the pharmacy
226 benefit manager from limiting a pharmacist’s ability to disclose
227 whether the cost-sharing obligation exceeds the retail price for
228 a covered prescription drug, and the availability of a more
229 affordable alternative drug, pursuant to s. 465.0244.
230 (d)(4) Does not require A contract between a health insurer
231 and a pharmacy benefit manager must prohibit the pharmacy
232 benefit manager from requiring an insured to make a payment for
233 a prescription drug at the point of sale in an amount that
234 exceeds the lesser of:
235 1.(a) The applicable cost-sharing amount; or
236 2.(b) The retail price of the drug in the absence of
237 prescription drug coverage.
238 (3) The office may require a health insurer to submit to
239 the office any contract or amendments to a contract for the
240 administration or management of prescription drug benefits by a
241 pharmacy benefit manager on behalf of the insurer.
242 (4) After review of a contract submitted under subsection
243 (3), the office may order the insurer to cancel the contract in
244 accordance with the terms of the contract and applicable law if
245 the office determines that any of the following conditions
246 exist:
247 (a) The contract does not comply with this section or any
248 other provision of the Florida Insurance Code.
249 (b) The pharmacy benefit manager is not registered with the
250 office as required under s. 624.490.
251 (5) The commission may adopt rules to administer this
252 section.
253 (6)(5) This section applies to contracts entered into,
254 amended, or renewed on or after July 1, 2021 2018. All contracts
255 entered into or renewed between July 1, 2018, and June 30, 2021,
256 are governed by the law in effect at the time the contract was
257 entered into or renewed.
258 Section 5. Paragraph (h) is added to subsection (5) of
259 section 627.6699, Florida Statutes, to read:
260 627.6699 Employee Health Care Access Act.—
261 (5) AVAILABILITY OF COVERAGE.—
262 (h) A health benefit plan covering small employers which is
263 issued or renewed in this state on or after July 1, 2021, must
264 comply with s. 627.6572.
265 Section 6. Section 641.314, Florida Statutes, is amended to
266 read:
267 641.314 Pharmacy benefit manager contracts.—
268 (1) As used in this section, the term:
269 (a) “Maximum allowable cost” means the per-unit amount that
270 a pharmacy benefit manager reimburses a pharmacist for a
271 prescription drug, excluding dispensing fees, prior to the
272 application of copayments, coinsurance, and other cost-sharing
273 charges, if any.
274 (b) “Pharmacy benefit manager” means a person or entity
275 doing business in this state which contracts to administer or
276 manage prescription drug benefits on behalf of a health
277 maintenance organization to residents of this state.
278 (2) A health maintenance organization may contract only
279 with a pharmacy benefit manager that satisfies all of the
280 following conditions A contract between a health maintenance
281 organization and a pharmacy benefit manager must require that
282 the pharmacy benefit manager:
283 (a) Updates Update maximum allowable cost pricing
284 information at least every 7 calendar days.
285 (b) Maintains Maintain a process that will, in a timely
286 manner, will eliminate drugs from maximum allowable cost lists
287 or modify drug prices to remain consistent with changes in
288 pricing data used in formulating maximum allowable cost prices
289 and product availability.
290 (c)(3) Does not limit A contract between a health
291 maintenance organization and a pharmacy benefit manager must
292 prohibit the pharmacy benefit manager from limiting a
293 pharmacist’s ability to disclose whether the cost-sharing
294 obligation exceeds the retail price for a covered prescription
295 drug, and the availability of a more affordable alternative
296 drug, pursuant to s. 465.0244.
297 (d)(4) Does not require A contract between a health
298 maintenance organization and a pharmacy benefit manager must
299 prohibit the pharmacy benefit manager from requiring a
300 subscriber to make a payment for a prescription drug at the
301 point of sale in an amount that exceeds the lesser of:
302 1.(a) The applicable cost-sharing amount; or
303 2.(b) The retail price of the drug in the absence of
304 prescription drug coverage.
305 (3) The office may require a health maintenance
306 organization to submit to the office any contract or amendments
307 to a contract for the administration or management of
308 prescription drug benefits by a pharmacy benefit manager on
309 behalf of the health maintenance organization.
310 (4) After review of a contract submitted under subsection
311 (3), the office may order the health maintenance organization to
312 cancel the contract in accordance with the terms of the contract
313 and applicable law if the office determines that any of the
314 following conditions exist:
315 (a) The contract does not comply with this section or any
316 other provision of the Florida Insurance Code.
317 (b) The pharmacy benefit manager is not registered with the
318 office as required under s. 624.490.
319 (5) The commission may adopt rules to administer this
320 section.
321 (6)(5) This section applies to pharmacy benefit manager
322 contracts entered into, amended, or renewed on or after July 1,
323 2021 2018. All contracts entered into or renewed between July 1,
324 2018, and June 30, 2021, are governed by the law in effect at
325 the time the contract was entered into or renewed.
326 Section 7. This act shall take effect July 1, 2021.