87R3428 JES-F
 
  By: Lucio III H.B. No. 1093
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the regulation of pharmacy benefit managers and health
  benefit plan issuers in relation to prescription drug coverage.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 1369, Insurance Code, is amended by
  adding Subchaper A-1 to read as follows:
  SUBCHAPTER A-1. COMPLAINTS
         Sec. 1369.021.  COMPLAINTS AGAINST PHARMACY BENEFIT
  MANAGERS. (a) The commissioner may receive and review written
  complaints alleging violations of this chapter by a pharmacy
  benefit manager.
         (b)  Based on review under Subsection (a), if the
  commissioner has reason to believe that a pharmacy benefit manager
  engaged in a course of conduct exhibited through a pattern or
  practice that violates this chapter or constitutes improper,
  fraudulent, or dishonest contract performance with the pharmacist
  or pharmacy, the commissioner may conduct any investigation
  necessary to determine whether the pattern or practice exists.
         (c)  The commissioner shall take appropriate disciplinary
  action as provided by this code against the pharmacy benefit
  manager if the commissioner finds, based on an investigation
  authorized by Subsection (b), that the pharmacy benefit manager
  engaged in a course of conduct exhibited through a pattern or
  practice that violates this chapter or constitutes improper,
  fraudulent, or dishonest contract performance with the pharmacist
  or pharmacy.
         (d)  The commissioner may exercise the subpoena authority
  under Section 36.152 in an investigation under this section.
         SECTION 2.  Chapter 1369, Insurance Code, is amended by
  adding Subchapter I to read as follows:
  SUBCHAPTER I. RELATIONSHIP TO PHARMACISTS AND PHARMACIES
         Sec. 1369.551.  DEFINITIONS. In this subchapter:
               (1)  "Affiliated pharmacist of pharmacy" means a
  pharmacist or pharmacy that directly, or indirectly through one or
  more intermediaries, controls or is controlled by, or is under
  common control with, a pharmacy benefit manager.
               (2)  "Pharmacy benefit manager" means a person, other
  than a pharmacist or pharmacy, who acts as an administrator in
  connection with pharmacy benefits.
         Sec. 1369.552.  APPLICABILITY OF SUBCHAPTER. (a) This
  subchapter applies only to a health benefit plan that provides
  benefits for medical or surgical expenses incurred as a result of a
  health condition, accident, or sickness, including an individual,
  group, blanket, or franchise insurance policy or insurance
  agreement, a group hospital service contract, or an individual or
  group evidence of coverage or similar coverage document that is
  offered by:
               (1)  an insurance company;
               (2)  a group hospital service corporation operating
  under Chapter 842;
               (3)  a health maintenance organization operating under
  Chapter 843;
               (4)  an approved nonprofit health corporation that
  holds a certificate of authority under Chapter 844;
               (5)  a multiple employer welfare arrangement that holds
  a certificate of authority under Chapter 846;
               (6)  a stipulated premium company operating under
  Chapter 884;
               (7)  a fraternal benefit society operating under
  Chapter 885;
               (8)  a Lloyd's plan operating under Chapter 941; or
               (9)  an exchange operating under Chapter 942.
         (b)  Notwithstanding any other law, this subchapter applies
  to:
               (1)  a small employer health benefit plan subject to
  Chapter 1501, including coverage provided through a health group
  cooperative under Subchapter B of that chapter;
               (2)  a standard health benefit plan issued under
  Chapter 1507;
               (3)  health benefits provided by or through a church
  benefits board under Subchapter I, Chapter 22, Business
  Organizations Code;
               (4)  group health coverage made available by a school
  district in accordance with Section 22.004, Education Code;
               (5)  a regional or local health care program operated
  under Section 75.104, Health and Safety Code; and
               (6)  a self-funded health benefit plan sponsored by a
  professional employer organization under Chapter 91, Labor Code.
         (c)  This subchapter does not apply to an issuer or provider
  of health benefits under or a pharmacy benefit manager
  administering pharmacy benefits under a workers' compensation
  insurance policy or other form of providing medical benefits under
  Title 5, Labor Code.
         Sec. 1369.553.  REDUCTION OF CERTAIN CLAIM PAYMENT AMOUNTS
  PROHIBITED. (a) A health benefit plan issuer or pharmacy benefit
  manager may not directly or indirectly reduce the amount of a claim
  payment to a pharmacist or pharmacy after adjudication of the claim
  through the use of an aggregated effective rate, a quality
  assurance program, other direct or indirect remuneration fee, or
  otherwise, except in accordance with an audit performed under
  Subchapter F.
         (b)  Nothing in this section prohibits a health benefit plan
  issuer or pharmacy benefit manager from increasing a claim payment
  amount after adjudication of the claim.
         (c)  Notwithstanding any other law, this section applies to
  the Medicaid managed care program operated under Chapter 533,
  Government Code.
         Sec. 1369.554.  PROFESSIONAL STANDARDS AND SCOPE OF PRACTICE
  REQUIREMENTS. A health benefit plan issuer or pharmacy benefit
  manager may not as a condition of a contract with a pharmacist or
  pharmacy:
               (1)  require pharmacist or pharmacy accreditation
  standards or recertification requirements inconsistent with, more
  stringent than, or in addition to federal and state requirements;
  or
               (2)  prohibit a licensed pharmacist or pharmacy from
  dispensing any drug, including a specialty drug, that may be
  dispensed under the pharmacist's or pharmacy's license unless
  applicable state or federal law prohibits the pharmacist or
  pharmacy from dispensing the drug.
         Sec. 1369.555.  RESTRICTIONS ON MAIL ORDER PHARMACY
  SERVICES. A pharmacy benefit manager may not require an enrollee to
  use a mail order pharmacy.
         Sec. 1369.556.  DELIVERY OF DRUGS. Except in a case in which
  the health benefit plan issuer or pharmacy benefit manager makes a
  credible allegation of fraud against the pharmacist or pharmacy and
  provides reasonable notice of the allegation and the basis of the
  allegation to the pharmacist or pharmacy, a health benefit plan
  issuer or pharmacy benefit manager may not as a condition of a
  contract with a pharmacist or pharmacy prohibit the pharmacist or
  pharmacy from:
               (1)  mailing or delivering a drug to a patient on the
  patient's request, to the extent permitted by law; or
               (2)  charging a shipping and handling fee to a patient
  requesting a prescription be mailed or delivered if the pharmacist
  or pharmacy discloses to the patient before the delivery:
                     (A)  the fee that will be charged; and
                     (B)  that the fee may not be reimbursable by the
  health benefit plan issuer or pharmacy benefit manager.
         Sec. 1369.557.  PROHIBITION ON CERTAIN REFERRALS. (a) A
  health benefit plan issuer or pharmacy benefit manager may not
  steer or direct a patient to use an affiliated pharmacist or
  pharmacy through:
               (1)  any oral or written communication, including:
                     (A)  online messaging regarding the pharmacist or
  pharmacy; or
                     (B)  patient- or prospective patient-specific
  advertising, marketing, or promotion of the pharmacist or pharmacy;
  or
               (2)  offering or implementing a health benefit plan
  design that requires or induces a patient to use an affiliated
  pharmacist or pharmacy, including by providing for reduced
  cost-sharing amounts if the patient uses the pharmacist or
  pharmacy.
         (b)  This section does not prohibit a health benefit plan
  issuer or pharmacy benefit manager from including an affiliated
  pharmacist or pharmacy in the issuer's or manager's patient
  communications, including in a patient- or prospective
  patient-specific communication, if the communication:
               (1)  is regarding in-network pharmacies and prices for
  a health benefit plan;
               (2)  is accurate; and
               (3)  includes in-network pharmacists or pharmacies
  that are not affiliated pharmacists or pharmacies.
         (c)  An affiliated pharmacist or pharmacy may not present a
  claim for payment to any individual or entity, including to a
  third-party payor, health benefit plan, or pharmacy benefit
  manager, for a health care service or supply provided to a patient
  who was improperly steered or directed to use the affiliated
  pharmacist or pharmacy in violation of Subsection (a).
         Sec. 1369.558.  PROHIBITION ON SHARING PATIENT INFORMATION
  FOR CERTAIN PURPOSES. (a) In this section, "commercial purpose"
  does not include pharmacy reimbursement, formulary compliance,
  pharmaceutical care, utilization review by a health care provider,
  or a public health activity authorized by law.
         (b)  A health benefit plan issuer or pharmacy benefit manager
  may not transfer to or receive from an affiliated pharmacist or
  pharmacy a record containing patient- or prescriber-identifiable
  prescription information for a commercial purpose.
         SECTION 3.  The change in law made by this Act applies only
  to a contract entered into or renewed on or after the effective date
  of this Act. A contract entered into or renewed before the
  effective date of this Act 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 4.  This Act takes effect September 1, 2021.