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By: Zaffirini S.B. No. 1581
A BILL TO BE ENTITLED
AN ACT
relating to the creation of a state pharmacy assistance program for
certain beneficiaries of state and local funded programs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter ___, Government Code, is amended by
adding Subchapter ___ as follows:
SUBCHAPTER ___. DEVELOPMENT AND IMPLEMENTATION OF STATE
PROGRAM. (a) The Commission shall develop and implement a state
pharmacy assistance program that operates as provided in this
Subchapter in providing drugs to eligible persons as defined in
Subsection (b) and meets the requirements of 42 U.S.C. Section
1396-8(c)(1)(C).
(b) A person is eligible for prescription drug benefits
under the state program if the person is:
(1) qualified to receive services under Title 7,
Subtitle A, Chapter 531, Health and Safety Code;
(2) qualified to receive services under Subtitle C,
Chapter 61, Subchapter A and B, Health and Safety Code; or
(3) qualified to receive services under Subtitle B,
Chapter 31, Health and Safety Code;
(c) Prescription drugs provided under this Subchapter may
be funded only with state general revenue funds or local funds.
(d) The Commission shall operate this program in a manner
which provides for up front discounts for eligible persons.
(e) The Commission may by contract authorize a private
entity to negotiate with manufacturers and labelers, as those terms
are defined in Subchapter B, Chapter 531, Sections 531.070(1) and
(2), on behalf of the Commission.
Sec. ___. STATE PHARMACY PROGRAM: GENERAL PROVISIONS.
(a) The Commission or its private contractor shall implement the
provisions of Subchapter B, Chapter 531, Government Code Sections
531.072 and 531.073 if the Commission or its private contractor are
unable to obtain voluntary discounts under this program.
Sec. ___. STATE PHARMACEUTICAL ASSISTANCE PROGRAM: GENERAL
PROVISIONS. (a) An eligible person is entitled to obtain a
prescription drug dispensed under this Subchapter from an entity
designated by the Commission's rule or from a retail pharmacy that
voluntarily participates in the program.
(b) The price of a prescription drug under the program shall
not exceed the sum of:
(1) the discounted acquisition price under the
program; and
(2) a dispensing fee in an amount equal to 115 percent
of the dispensing fee paid for providing the drug under the Vendor
Drug program.
(c) The Commission shall maintain an electronic database on
a web site listing the names and addresses of all entities eligible
to participate in the program established under this Subchapter.
(d) The Commission or its contractor shall engage in
outreach activities to publicize the availability of discounted
prescription drug prices under the program and to maximize
enrollment in the program. The Commission shall establish
simplified procedures for enrolling program participants.
(e) The Commission or its private contractor shall
implement the provisions of Subchapter B, Chapter 531, Government
Code Sections 531.072 and 531.073 if the Commission or its private
contractor are unable to obtain voluntary discounts under this
program.
(f) The Commission may agree to pay a private contractor a
percent of the gross purchases under the program. Any payment shall
be incorporated into the sales price.
Sec. ___. PARTICIPATING WHOLESALERS AND RETAIL PHARMACIES.
(a) The Commission or its contractor shall contract with each
wholesaler that:
(1) elects to participate in the state pharmaceutical
assistance program established under Section ___; and
(2) satisfies the Commission's participation
requirements.
(b) A contract between the Commission or its contractor and
a wholesaler must require the wholesaler to:
(1) provide prescription drugs available through the
program to participating pharmacies, including retail pharmacies,
at a price not to exceed the sum of:
(A) the discounted acquisition cost under the
program; and
(B) a reasonable delivery fee in an amount
negotiated by the wholesaler and the Commission or its contractor,
which fee may vary based on the monthly volume of prescription drugs
provided by the wholesaler and the number of required weekly
deliveries; and
(C) a reasonable percent of the gross purchases
approved by the Commission.
(2) meet service levels specified in the contract;
(3) provide next-day delivery service on all orders
under the program to participating pharmacies including retail
pharmacies;
(4) provide software and data interface capacity to
participating pharmacies including retail pharmacies as necessary
to enable pharmacies to comply with Subsection (d); and
(5) participate in the program on an ongoing basis for
the period specified in the contract.
(c) The Commission or its contractor shall collect
utilization information from each participating wholesaler as
necessary to administer the program. The Commission or its
contractor shall protect the confidentiality of any information
obtained under this Subsection that is confidential under state or
federal law, rule, or regulation.
(d) The Commission, by rule, shall require a participating
retail pharmacy to:
(1) maintain a separate inventory of prescription
drugs obtained by the pharmacy under the program or segregate those
drugs from the pharmacy's other prescription drug stock; and/or
(2) maintain separate records of acquisition and
disposition of prescription drugs obtained by the pharmacy under
the program, and ensure that all computer records regarding those
drugs are readily available per request to the Commission or its
contractor.
(e) A participating pharmacy, including a retail pharmacy
or wholesaler may not resell or otherwise transfer a prescription
drug obtained under the program to:
(1) a retail pharmacy that is not participating in the
program; or
(2) a person who is not a program participant.
(f) If the Commission, after notice and opportunity for a
hearing, determines that a participating pharmacy, retail pharmacy
or wholesaler has acted in violation of Subsection (e), the
pharmacy or wholesaler is liable to the manufacturer of the
prescription drugs in an amount equal to the difference between:
(1) the retail price of the drug at the time of the
wrongful resale or transfer; and
(2) the price at which the drug was obtained by the
pharmacy or wholesaler under the program.
Sec. ____. CERTAIN REBATE DISPUTES OR DISCREPANCIES.
(a) A dispute or discrepancy in the amount of a discount
negotiated under Section _____ must be resolved using the process
established in this section.
(b) The Commission may hire an independent auditor
acceptable to all affected parties to perform an audit at the
Commission's expense if there is a dispute or discrepancy in favor
of a manufacturer or labeler relating to the amount of a discount
for a prescription drug provided by the manufacturer or labeler. If
the audit does not resolve the dispute or discrepancy, the
manufacturer or labeler shall:
(1) provide justification for the dispute or
discrepancy that is satisfactory to the Commission; or
(2) pay the additional amount due.
(c) A manufacturer or labeler may hire an independent
auditor acceptable to all affected parties to perform an audit at
the expense of the manufacturer or labeler if there is a dispute or
discrepancy in favor of the state relating to the amount of the
discount for a prescription drug provided by the manufacturer or
labeler. If the audit does not resolve the dispute or discrepancy,
the Commission shall:
(1) provide justification for the dispute or
discrepancy that is satisfactory to the manufacturer or labeler; or
(2) cause refund to the manufacturer or labeler to be
issued by participating entities in the amount due.
(d) Any party not satisfied with the resolution of a dispute
or discrepancy in accordance with Subsection (b) or (c) may request
in writing a hearing before the State Office of Administrative
Hearings. The party must include supporting documentation with the
request for a hearing.
Sec. ____. RULEMAKING. The Commission may adopt rules as
necessary to administer this Subchapter.
Sec. 531.408. ANNUAL REPORT. Not later than January 1 of
each year, the Commission or its contractor shall report to the
legislature on the Commission's activities under this Subchapter.
The report must include the number of persons enrolled in the state
pharmaceutical assistance program established under Section _____
and information regarding the financial condition of that program.
SECTION 3. Subchapter B, Chapter 531, Sections (h)(3) and
(l), Government Code are hereby repealed.
SECTION 4. If before implementing any provision of this
Subchapter the Commission determines that a designation or
authorization from a federal agency is necessary for implementation
of this Subchapter, the Commission shall request the designation or
authorization and may delay implementing that provision until the
designation or authorization is granted.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2005.