By: Schwertner, et al. S.B. No. 332
 
  (Hunter)
 
   
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the use of maximum allowable cost lists related to
  pharmacy benefits.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 1369, Insurance Code, is amended by
  adding Subchapter H to read as follows:
  SUBCHAPTER H. MAXIMUM ALLOWABLE COST
         Sec. 1369.351.  DEFINITIONS. In this subchapter:
               (1)  "Health benefit plan" has the meaning assigned by
  Section 1369.251, as added by Chapter 915 (H.B. 1358), Acts of the
  83rd Legislature, Regular Session, 2013.
               (2)  "Pharmacy benefit manager" has the meaning
  assigned by Section 4151.151.
         Sec. 1369.352. CERTAIN BENEFITS EXCLUDED.  This subchapter
  does not apply to maximum allowable costs for pharmacy benefits
  provided under:
               (1)  a Medicaid managed care program operated under
  Chapter 533, Government Code;
               (2)  a Medicaid program operated under Chapter 32,
  Human Resources Code;
               (3)  the child health plan program under Chapter 62,
  Health and Safety Code;
               (4)  the health benefits plan for children under
  Chapter 63, Health and Safety Code;
               (5)  a health benefit plan issued under Chapter 1551,
  1575, 1579, or 1601; or
               (6)  a workers' compensation insurance policy or other
  form of providing medical benefits under Title 5, Labor Code.
         Sec. 1369.353.  CRITERIA FOR DRUGS ON MAXIMUM ALLOWABLE COST
  LISTS. A health benefit plan issuer or pharmacy benefit manager may
  not include a drug on a maximum allowable cost list unless:
               (1)  the drug:
                     (A)  has an "A" or "B" rating in the most recent
  version of the United States Food and Drug Administration's
  Approved Drug Products with Therapeutic Equivalence Evaluations,
  also known as the Orange Book; or
                     (B)  is rated "NR" or "NA" or has a similar rating
  by a nationally recognized reference; and
               (2)  the drug is:
                     (A)  generally available for purchase by
  pharmacists and pharmacies in this state from a national or
  regional wholesaler; and
                     (B)  not obsolete.
         Sec. 1369.354.  FORMULATION OF MAXIMUM ALLOWABLE COSTS;
  DISCLOSURES. (a)  In formulating the maximum allowable cost price
  for a drug, a health benefit plan issuer or pharmacy benefit manager
  may only use the price of that drug and any drug listed as
  therapeutically equivalent to that drug in the most recent version
  of the United States Food and Drug Administration's Approved Drug
  Products with Therapeutic Equivalence Evaluations, also known as
  the Orange Book.
         (b)  Notwithstanding Subsection (a), if a therapeutically
  equivalent generic drug is unavailable or has limited market
  presence, a health benefit plan issuer or pharmacy benefit manager
  may place on a maximum allowable cost list a drug that has:
               (1)  a "B" rating in the most recent version of the
  United States Food and Drug Administration's Approved Drug Products
  with Therapeutic Equivalence Evaluations, also known as the Orange
  Book; or
               (2)  an "NR" or "NA" rating or a similar rating by a
  nationally recognized reference.
         (c)  A health benefit plan issuer or pharmacy benefit manager
  must, in accordance with Subsection (d), disclose to a pharmacist
  or pharmacy the sources of the pricing data used in formulating
  maximum allowable cost prices.
         (d)  The information described by Subsection (c) must be
  disclosed:
               (1)  on the date the health benefit plan issuer or
  pharmacy benefit manager enters into the contract with the
  pharmacist or pharmacy; and
               (2)  after that contract date, on the request of the
  pharmacist or pharmacy.
         Sec. 1369.355.  UPDATES. (a)  A health benefit plan issuer
  or pharmacy benefit manager shall establish a process that will in a
  timely manner eliminate drugs from maximum allowable cost lists or
  modify maximum allowable cost prices to remain consistent with
  changes in pricing data used in formulating maximum allowable cost
  prices and product availability.
         (b)  A health benefit plan issuer or pharmacy benefit manager
  shall review and update maximum allowable cost price information
  for each drug at least once every seven days to reflect any
  modification of maximum allowable cost pricing.
         Sec. 1369.356.  ACCESS TO MAXIMUM ALLOWABLE COST LISTS. A
  health benefit plan issuer or pharmacy benefit manager must provide
  to each pharmacist or pharmacy under contract with the health
  benefit plan issuer or pharmacy benefit manager a process to
  readily access the maximum allowable cost list that applies to the
  pharmacist or pharmacy.
         Sec. 1369.357.  APPEAL FROM MAXIMUM ALLOWABLE COST PRICE
  DETERMINATION. (a)  A health benefit plan issuer or pharmacy
  benefit manager must provide in the contract with each pharmacist
  or pharmacy a procedure for the pharmacist or pharmacy to appeal a
  maximum allowable cost price of a drug on or before the 10th day
  after the date a pharmacy benefit claim for the drug is made.
         (b)  The health benefit plan issuer or pharmacy benefit
  manager shall respond to an appeal described by Subsection (a) in a
  documented communication not later than the 10th day after the date
  the appeal is received by the health benefit plan issuer or pharmacy
  benefit manager.
         (c)  If the appeal is successful, the health benefit plan
  issuer or pharmacy benefit manager shall:
               (1)  adjust the maximum allowable cost price that is
  the subject of the appeal effective on the day after the date the
  appeal is decided;
               (2)  apply the adjusted maximum allowable cost price to
  all similarly situated pharmacists and pharmacies as determined by
  the health benefit plan issuer or pharmacy benefit manager; and
               (3)  allow the pharmacist or pharmacy that succeeded in
  the appeal to reverse and rebill the pharmacy benefit claim giving
  rise to the appeal.
         (d)  If the appeal is not successful, the health benefit plan
  issuer or pharmacy benefit manager shall disclose to the pharmacist
  or pharmacy:
               (1)  each reason the appeal is denied; and
               (2)  the national drug code number from the national or
  regional wholesalers from which the drug is generally available for
  purchase by pharmacists and pharmacies in this state at the maximum
  allowable cost price that is the subject of the appeal.
         Sec. 1369.358.  CONFIDENTIALITY OF MAXIMUM ALLOWABLE COST
  LIST. A maximum allowable cost list that applies to a pharmacist or
  pharmacy and is maintained by a health benefit plan issuer or
  pharmacy benefit manager is confidential.  This section may not be
  construed to alter a health benefit plan issuer's or pharmacy
  benefit manager's obligations under Section 1369.356.
         Sec. 1369.359.  WAIVER PROHIBITED. The provisions of this
  subchapter may not be waived, voided, or nullified by contract.
         Sec. 1369.360.  REMEDIES NOT EXCLUSIVE. This subchapter may
  not be construed to waive a remedy at law available to a pharmacist
  or pharmacy.
         Sec. 1369.361.  ENFORCEMENT. The commissioner shall enforce
  this subchapter.
         Sec. 1369.362.  LEGISLATIVE DECLARATION. It is the intent
  of the legislature that, except with respect to the benefits
  excluded under Section 1369.352, the requirements contained in this
  subchapter apply to all health benefit plan issuers and pharmacy
  benefit managers unless otherwise prohibited by federal law.
         SECTION 2.  This Act applies only to a contract between a
  health benefit plan issuer or a pharmacy benefit manager and a
  pharmacist or pharmacy entered into or renewed on or after January
  1, 2016. A contract entered into or renewed before January 1, 2016,
  is governed by the law as it existed immediately before the
  effective date of this Act, and that law is continued in effect for
  that purpose.
         SECTION 3.  This Act takes effect January 1, 2016.