Regular Session 2021-2022 House Bill 1319 P.N. 1411

PRINTER'S NO. 1411

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

1319

Session of

2021

INTRODUCED BY LEWIS DELROSSO, POLINCHOCK, RYAN, HILL-EVANS,

SANKEY, SAYLOR AND WHEELAND, APRIL 30, 2021

REFERRED TO COMMITTEE ON HEALTH, APRIL 30, 2021

AN ACT

Prohibiting discrimination in pharmacy benefits plans and

prevention or interference with patient choice; providing for

reimbursement claims methodology and for safety net

protection; and imposing penalties.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Short title.

This act shall be known and may be cited as the

Nondiscrimination in Pharmacy Benefits Plans Act.

Section 2. Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Contract pharmacy." A pharmacy that provides services to a

covered entity under a contractual arrangement as described in

75 Fed. Reg. 10272 (March 5, 2010).

"Covered entity." A health care provider or health care

facility approved under section 256b of the Public Health

Service Act.

"Department." The Department of Human Services of the

Commonwealth.

"Managed care organization." A licensed managed care

organization with whom the department has contracted to provide

or arrange for services to a Medicaid recipient.

"Pharmacy benefits plan." As follows:

(1) An entity that administers or manages prescription

drug benefits or pays a reimbursement to a provider that

dispenses prescription drugs, including an insurer, a health

benefit plan, a self-insured plan or a workers' compensation

insurance plan, or an entity that manages prescription drug

benefits on behalf of an insurer, a health benefit plan, a

self-insured plan or a workers' compensation insurance plan.

(2) The term does not include any of the following:

(i) A medical assistance fee-for-service program

under Article IV of the act of June 13, 1967 (P.L.31,

No.21), known as the Human Services Code.

(ii) An individual paying for drugs on his or her

own behalf or on behalf of another individual.

(iii) The Pennsylvania Employees Benefit Trust Fund

or any successor organization that only provides

prescription drug benefits for employees of the

Commonwealth and their covered dependents.

"Public Health Service Act." The Public Health Service Act

(58 Stat. 682, 42 U.S.C. § 201 et seq.).

Section 3. Discrimination in pharmacy benefits plans

prohibited.

A pharmacy benefits plan that reimburses a covered entity

under section 256b of the Public Health Service Act or a

contract pharmacy for drugs under a contract shall not:

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(1) pay the covered entity or contract pharmacy less

than the wholesale acquisition cost specified in section

1847A(c)(6)(B) of the Medicare Prescription Drug,

Improvement, and Modernization Act of 2003 (Public Law 108-

172, 117 Stat. 2066) for drugs purchased under section 256b

of the Public Health Service Act;

(2) prevent the covered entity or contract pharmacy from

using drugs purchased under section 256b of the Public Health

Service Act when submitting a claim for reimbursement or

decline to cover the claim for reimbursement due to the claim

being for drugs purchased in accordance with this act;

(3) assess any fee, chargeback or other adjustment on

the covered entity or contract pharmacy or provide the

covered entity or contract pharmacy with a lower dispensing

fee on the basis that the covered entity or contract pharmacy

participates in the program established under section 256b of

the Public Health Service Act;

(4) exclude the covered entity or contract pharmacy from

any of the pharmacy benefit plan's networks or disparately

treat the covered entity or contract pharmacy in terms of

network participation or standard contractual terms, if the

covered entity or contract pharmacy accepts the payment

levels specified under paragraph (1) and the standard

nondiscriminatory terms for retail and specialty pharmacies

in use by the pharmacy benefits plan;

(5) preclude the covered entity or contract pharmacy

from dispensing or delivering medications by mail or

reimburse the covered entity or contract pharmacy less if the

covered entity or contract pharmacy dispenses or delivers

medications by mail;

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(6) impose any limitation on the distance between the

covered entity and contract pharmacy; or

(7) except as necessary to comply with paragraph (1) or

section 256b of the Public Health Service Act, request,

require or compel the transmission of any ingredient cost,

pricing data or other data pertaining to the program

established under section 256b of the Public Health Service

Act.

Section 4. Prevention or interference with patient choice

prohibited.

If a patient is eligible to receive drugs under section 256b

of the Public Health Service Act from a covered entity or

contract pharmacy, a pharmacy benefits plan may not discriminate

against the covered entity or contract pharmacy in a manner that

prevents or interferes with the patient's choice to receive

drugs from the covered entity or contract pharmacy, including

cost-sharing differentials, drug formulary differences, refill

limitations or supply-day restrictions.

Section 5. Reimbursement claims methodology.

The department, a managed care organization or an entity that

administers or manages prescription drug benefits or that pays a

reimbursement to a provider that dispenses prescription drugs,

including an insurer, health benefit plan, self-insured plan or

workers' compensation insurance plan, on behalf of the

department or a managed care organization, shall rely

exclusively on a claims-level methodology involving the use of a

nationally recognized billing modifier or retrospective claims

identification process for identifying drugs purchased under

section 256b of the Public Health Service Act to ensure that

claims for the drugs are removed from the encounter data

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required under section 1903(m)(2)(A)(xiii) of Title XVIII of the

Social Security Act (Public Law 74-271, 42 U.S.C. § 1396b(m)(2)

(A)(xiii)) and excluded from Medicaid drug rebate requests.

Section 6. Safety net protection.

(a) Reimbursement.--Except as provided under subsection (b),

the department shall reimburse a contract pharmacy in the

Medicaid fee-for-service delivery system for a drug purchased

through the program established under section 256b of the Public

Health Service Act at the maximum price for the drug allowable

under section 256b of the Public Health Service Act, plus a

professional dispensing fee. If a drug billed to the Medicaid

fee-for-service delivery system is not purchased through the

program established under section 256b of the Public Health

Service Act, the department shall reimburse the contract

pharmacy in the Medicaid fee-for-service delivery system in

accordance with the methodology applicable to retail pharmacies

generally.

(b) Exception.--If at any time a drug that is covered by a

managed care organization becomes exclusively covered by the

Medicaid fee-for-service delivery system, the professional

dispensing fee under subsection (a) for a drug purchased through

the program established under section 256b of the Public Health

Service Act shall be increased to approximate the methodology

specified under section 3(1).

Section 7. Penalties.

(a) Enforcement.--The Office of Attorney General shall

investigate complaints and enforce this act and may examine or

audit the books and records of a pharmacy benefits plan or

related party to determine if the party is compliant with this

act.

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(b) Fines.--The Office of Attorney General shall impose,

upon written notice, a fine on a pharmacy benefits plan that

violates the provision of this act in accordance with the

following:

(1) For a pharmacy benefits plan that violates section

3(1), (2) or (3), an amount of $1,000 per wrongfully denied

claim or improperly paid claim.

(2) For a pharmacy benefits plan that violates section

3(4), an amount of $1,000 per day for each excluded pharmacy.

suspend the ability of a pharmacy benefits plan to conduct

business in this Commonwealth if a violation under section 3(1),

(2), (3) or (4) is not rectified within 30 days of the date when

the written notice is sent to the pharmacy benefits plan under

subsection (b).

(d) Contracts.--A contract term that violates section 3(1),

(2) or (3) shall be null and void.

(e) Injunctive relief.--A covered entity or contract

pharmacy may seek injunctive relief to enforce the provisions of

this act.

Section 8. Effective date.

This act shall take effect in 60 days.

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