Florida Senate - 2023                                     SB 746
       
       
        
       By Senator Rodriguez
       
       
       
       
       
       40-00498-23                                            2023746__
    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 within a certain
    6         timeframe to current and prospective insureds and the
    7         insureds’ treating physicians; specifying requirements
    8         for the content of such notice and the manner in which
    9         it must be provided; specifying requirements for a
   10         notice of medical necessity submitted by the treating
   11         physician; authorizing insurers to provide certain
   12         means for submitting the notice of medical necessity;
   13         requiring the Financial Services Commission to adopt a
   14         certain form by rule by a specified date; specifying a
   15         coverage requirement and restrictions on coverage
   16         modification by insurers receiving a notice of medical
   17         necessity; providing construction and applicability;
   18         requiring insurers to maintain a record of formulary
   19         changes; requiring insurers to annually submit a
   20         specified report to the Office of Insurance Regulation
   21         by a specified date; requiring the office to annually
   22         compile certain data and prepare a report, make the
   23         report publicly accessible on its website, and submit
   24         the report to the Governor and the Legislature by a
   25         specified date; amending s. 627.6699, F.S.; requiring
   26         small employer carriers to comply with certain
   27         requirements for prescription drug formulary changes;
   28         amending s. 641.31, F.S.; providing an exception to
   29         requirements relating to changes in a health
   30         maintenance organization’s group contract; requiring
   31         health maintenance organizations to provide notice of
   32         prescription drug formulary changes within a certain
   33         timeframe to current and prospective subscribers and
   34         the subscribers’ treating physicians; specifying
   35         requirements for the content of such notice and the
   36         manner in which it must be provided; specifying
   37         requirements for a notice of medical necessity
   38         submitted by the treating physician; authorizing
   39         health maintenance organizations to provide certain
   40         means for submitting the notice of medical necessity;
   41         requiring the commission to adopt a certain form by
   42         rule by a specified date; specifying a coverage
   43         requirement and restrictions on coverage modification
   44         by health maintenance organizations receiving a notice
   45         of medical necessity; providing construction and
   46         applicability; requiring health maintenance
   47         organizations to maintain a record of formulary
   48         changes; requiring health maintenance organizations to
   49         annually submit a specified report to the office by a
   50         specified date; requiring the office to annually
   51         compile certain data and prepare a report, make the
   52         report publicly accessible on its website, and submit
   53         the report to the Governor and the Legislature by a
   54         specified date; providing applicability; providing a
   55         declaration of important state interest; providing an
   56         effective date.
   57          
   58  Be It Enacted by the Legislature of the State of Florida:
   59  
   60         Section 1. Section 627.42394, Florida Statutes, is created
   61  to read:
   62         627.42394Health insurance policies; changes to
   63  prescription drug formularies; requirements.—
   64         (1)At least 60 days before the effective date of any
   65  change to a prescription drug formulary during a policy year, an
   66  insurer issuing individual or group health insurance policies in
   67  this state shall notify:
   68         (a)Current and prospective insureds of the change in the
   69  formulary in a readily accessible format on the insurer’s
   70  website; and
   71         (b)Any insured currently receiving coverage for a
   72  prescription drug for which the formulary change modifies
   73  coverage and the insured’s treating physician. Such notification
   74  must be sent electronically and by first-class mail and must
   75  include information on the specific drugs involved and a
   76  statement that the submission of a notice of medical necessity
   77  by the insured’s treating physician to the insurer at least 30
   78  days before the effective date of the formulary change will
   79  result in continuation of coverage at the existing level.
   80         (2)The notice provided by the treating physician to the
   81  insurer must include a completed one-page form in which the
   82  treating physician certifies to the insurer that the
   83  prescription drug for the insured is medically necessary as
   84  defined in s. 627.732(2). The treating physician shall submit
   85  the notice electronically or by first-class mail. The insurer
   86  may provide the treating physician with access to an electronic
   87  portal through which the treating physician may electronically
   88  submit the notice. By January 1, 2024, the commission shall
   89  adopt by rule a form for the notice.
   90         (3)If the treating physician certifies to the insurer in
   91  accordance with subsection (2) that the prescription drug is
   92  medically necessary for the insured, the insurer:
   93         (a)Must authorize coverage for the prescribed drug until
   94  the end of the policy year, based solely on the treating
   95  physician’s certification that the drug is medically necessary;
   96  and
   97         (b)May not modify the coverage related to the covered drug
   98  during the policy year by:
   99         1.Increasing the out-of-pocket costs for the covered drug;
  100         2.Moving the covered drug to a more restrictive tier;
  101         3.Denying an insured coverage of the drug for which the
  102  insured has been previously approved for coverage by the
  103  insurer; or
  104         4.Limiting or reducing coverage of the drug in any other
  105  way, including subjecting it to a new prior authorization or
  106  step-therapy requirement.
  107         (4)Subsections (1), (2), and (3) do not:
  108         (a) Prohibit the addition of prescription drugs to the list
  109  of drugs covered under the policy during the policy year.
  110         (b)Apply to a grandfathered health plan as defined in s.
  111  627.402 or to benefits specified in s. 627.6513(1)-(14).
  112         (c)Alter or amend s. 465.025, which provides conditions
  113  under which a pharmacist may substitute a generically equivalent
  114  drug product for a brand name drug product.
  115         (d)Alter or amend s. 465.0252, which provides conditions
  116  under which a pharmacist may dispense a substitute biological
  117  product for the prescribed biological product.
  118         (e) Apply to a Medicaid managed care plan under part IV of
  119  chapter 409.
  120         (5) A health insurer shall maintain a record of any change
  121  in its formulary during a calendar year. By March 1 annually, a
  122  health insurer shall submit to the office a report delineating
  123  such changes made in the previous calendar year. The annual
  124  report must include, at a minimum:
  125         (a) A list of all drugs removed from the formulary and the
  126  reasons for the removal;
  127         (b) A list of all drugs moved to a tier resulting in
  128  additional out-of-pocket costs to insureds;
  129         (c) The number of insureds notified by the insurer of a
  130  change in the formulary; and
  131         (d) The increased cost, by dollar amount, incurred by
  132  insureds because of such change in the formulary.
  133         (6) By May 1 annually, the office shall:
  134         (a) Compile the data in such annual reports submitted by
  135  health insurers and prepare a report summarizing the data
  136  submitted;
  137         (b) Make the report publicly accessible on its website; and
  138         (c) Submit the report to the Governor, the President of the
  139  Senate, and the Speaker of the House of Representatives.
  140         Section 2. Paragraph (e) of subsection (5) of section
  141  627.6699, Florida Statutes, is amended to read:
  142         627.6699 Employee Health Care Access Act.—
  143         (5) AVAILABILITY OF COVERAGE.—
  144         (e) All health benefit plans issued under this section must
  145  comply with the following conditions:
  146         1. For employers who have fewer than two employees, a late
  147  enrollee may be excluded from coverage for no longer than 24
  148  months if he or she was not covered by creditable coverage
  149  continually to a date not more than 63 days before the effective
  150  date of his or her new coverage.
  151         2. Any requirement used by a small employer carrier in
  152  determining whether to provide coverage to a small employer
  153  group, including requirements for minimum participation of
  154  eligible employees and minimum employer contributions, must be
  155  applied uniformly among all small employer groups having the
  156  same number of eligible employees applying for coverage or
  157  receiving coverage from the small employer carrier, except that
  158  a small employer carrier that participates in, administers, or
  159  issues health benefits pursuant to s. 381.0406 which do not
  160  include a preexisting condition exclusion may require as a
  161  condition of offering such benefits that the employer has had no
  162  health insurance coverage for its employees for a period of at
  163  least 6 months. A small employer carrier may vary application of
  164  minimum participation requirements and minimum employer
  165  contribution requirements only by the size of the small employer
  166  group.
  167         3. In applying minimum participation requirements with
  168  respect to a small employer, a small employer carrier shall not
  169  consider as an eligible employee employees or dependents who
  170  have qualifying existing coverage in an employer-based group
  171  insurance plan or an ERISA qualified self-insurance plan in
  172  determining whether the applicable percentage of participation
  173  is met. However, a small employer carrier may count eligible
  174  employees and dependents who have coverage under another health
  175  plan that is sponsored by that employer.
  176         4. A small employer carrier shall not increase any
  177  requirement for minimum employee participation or any
  178  requirement for minimum employer contribution applicable to a
  179  small employer at any time after the small employer has been
  180  accepted for coverage, unless the employer size has changed, in
  181  which case the small employer carrier may apply the requirements
  182  that are applicable to the new group size.
  183         5. If a small employer carrier offers coverage to a small
  184  employer, it must offer coverage to all the small employer’s
  185  eligible employees and their dependents. A small employer
  186  carrier may not offer coverage limited to certain persons in a
  187  group or to part of a group, except with respect to late
  188  enrollees.
  189         6. A small employer carrier may not modify any health
  190  benefit plan issued to a small employer with respect to a small
  191  employer or any eligible employee or dependent through riders,
  192  endorsements, or otherwise to restrict or exclude coverage for
  193  certain diseases or medical conditions otherwise covered by the
  194  health benefit plan.
  195         7. An initial enrollment period of at least 30 days must be
  196  provided. An annual 30-day open enrollment period must be
  197  offered to each small employer’s eligible employees and their
  198  dependents. A small employer carrier must provide special
  199  enrollment periods as required by s. 627.65615.
  200         8. A small employer carrier shall comply with s. 627.42394
  201  for any change to a prescription drug formulary.
  202         Section 3. Subsection (36) of section 641.31, Florida
  203  Statutes, is amended to read:
  204         641.31 Health maintenance contracts.—
  205         (36) Except as provided in paragraphs (a), (b), and (c), a
  206  health maintenance organization may increase the copayment for
  207  any benefit, or delete, amend, or limit any of the benefits to
  208  which a subscriber is entitled under the group contract only,
  209  upon written notice to the contract holder at least 45 days in
  210  advance of the time of coverage renewal. The health maintenance
  211  organization may amend the contract with the contract holder,
  212  with such amendment to be effective immediately at the time of
  213  coverage renewal. The written notice to the contract holder must
  214  shall specifically identify any deletions, amendments, or
  215  limitations to any of the benefits provided in the group
  216  contract during the current contract period which will be
  217  included in the group contract upon renewal. This subsection
  218  does not apply to any increases in benefits. The 45-day notice
  219  requirement does shall not apply if benefits are amended,
  220  deleted, or limited at the request of the contract holder.
  221         (a) At least 60 days before the effective date of any
  222  change to a prescription drug formulary during a contract year,
  223  a health maintenance organization shall notify:
  224         1.Current and prospective subscribers of the change in the
  225  formulary in a readily accessible format on the health
  226  maintenance organization’s website; and
  227         2.Any subscriber currently receiving coverage for a
  228  prescription drug for which the formulary change modifies
  229  coverage and the subscriber’s treating physician. Such
  230  notification must be sent electronically and by first-class mail
  231  and must include information on the specific drugs involved and
  232  a statement that the submission of a notice of medical necessity
  233  by the subscriber’s treating physician to the health maintenance
  234  organization at least 30 days before the effective date of the
  235  formulary change will result in continuation of coverage at the
  236  existing level.
  237         (b)The notice provided by the treating physician to the
  238  health maintenance organization must include a completed one
  239  page form in which the treating physician certifies to the
  240  health maintenance organization that the prescription drug for
  241  the subscriber is medically necessary as defined in s.
  242  627.732(2). The treating physician shall submit the notice
  243  electronically or by first-class mail. The health maintenance
  244  organization may provide the treating physician with access to
  245  an electronic portal through which the treating physician may
  246  electronically submit the notice. By January 1, 2024, the
  247  commission shall adopt by rule a form for the notice.
  248         (c)If the treating physician certifies to the health
  249  maintenance organization in accordance with paragraph (b) that
  250  the prescription drug is medically necessary for the subscriber,
  251  the health maintenance organization:
  252         1.Must authorize coverage for the prescribed drug until
  253  the end of the contract year, based solely on the treating
  254  physician’s certification that the drug is medically necessary;
  255  and
  256         2.May not modify the coverage related to the covered drug
  257  during the contract year by:
  258         a.Increasing the out-of-pocket costs for the covered drug;
  259         b.Moving the covered drug to a more restrictive tier;
  260         c.Denying a subscriber coverage of the drug for which the
  261  subscriber has been previously approved for coverage by the
  262  health maintenance organization; or
  263         d.Limiting or reducing coverage of the drug in any other
  264  way, including subjecting it to a new prior authorization or
  265  step-therapy requirement.
  266         (d)Paragraphs (a), (b), and (c) do not:
  267         1. Prohibit the addition of prescription drugs to the list
  268  of drugs covered under the contract during the contract year.
  269         2. Apply to a grandfathered health plan as defined in s.
  270  627.402 or to benefits specified in s. 627.6513(1)-(14).
  271         3. Alter or amend s. 465.025, which provides conditions
  272  under which a pharmacist may substitute a generically equivalent
  273  drug product for a brand name drug product.
  274         4. Alter or amend s. 465.0252, which provides conditions
  275  under which a pharmacist may dispense a substitute biological
  276  product for the prescribed biological product.
  277         5. Apply to a Medicaid managed care plan under part IV of
  278  chapter 409.
  279         (e) A health maintenance organization shall maintain a
  280  record of any change in its formulary during a calendar year. By
  281  March 1 annually, a health maintenance organization shall submit
  282  to the office a report delineating such changes made in the
  283  previous calendar year. The annual report must include, at a
  284  minimum:
  285         1. A list of all drugs removed from the formulary and the
  286  reasons for the removal;
  287         2. A list of all drugs moved to a tier resulting in
  288  additional out-of-pocket costs to subscribers;
  289         3. The number of subscribers notified by the health
  290  maintenance organization of a change in the formulary; and
  291         4. The increased cost, by dollar amount, incurred by
  292  subscribers because of such change in the formulary.
  293         (f) By May 1 annually, the office shall:
  294         1. Compile the data in such annual reports submitted by
  295  health maintenance organizations and prepare a report
  296  summarizing the data submitted;
  297         2. Make the report publicly accessible on its website; and
  298         3. Submit the report to the Governor, the President of the
  299  Senate, and the Speaker of the House of Representatives.
  300         Section 4. This act applies to health insurance policies,
  301  health benefit plans, and health maintenance contracts entered
  302  into or renewed on or after January 1, 2024.
  303         Section 5. The Legislature finds that this act fulfills an
  304  important state interest.
  305         Section 6. This act shall take effect January 1, 2024.