House File 160 - Introduced



                                       HOUSE FILE       
                                       BY  BELL


    Passed House,  Date               Passed Senate, Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act relating to the regulation of pharmacy benefits managers
  2    and providing for civil relief.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  4 TLSB 1013YH 81
  5 pf/gg/14

PAG LIN



  1  1    Section 1.  NEW SECTION.  155B.1  DEFINITIONS.
  1  2    As used in this chapter unless the context otherwise
  1  3 requires:
  1  4    1.  "Commissioner" means the commissioner of insurance.
  1  5    2.  "Covered entity" means a nonprofit hospital or medical
  1  6 services corporation, health insurer, health benefit plan, or
  1  7 health maintenance organization; a health program administered
  1  8 by the state in the capacity of provider of health coverage;
  1  9 or an employer, labor union, or other group of persons
  1 10 organized in the state that provides health coverage to
  1 11 covered individuals who are employed or reside in the state.
  1 12 "Covered entity" does not include a self=funded plan that is
  1 13 exempt from state regulation pursuant to the federal Employee
  1 14 Retirement Income Security Act of 1974 (ERISA), as codified at
  1 15 29 U.S.C. } 1001 et seq., a plan issued for coverage for
  1 16 federal employees, or a health plan that provides coverage
  1 17 only for accidental injury, specified disease, hospital
  1 18 indemnity, Medicare supplemental, disability income, long=
  1 19 term care, or other limited benefit health insurance policies
  1 20 and contracts.
  1 21    3.  "Covered individual" means a member, participant,
  1 22 enrollee, contract holder, policyholder, or beneficiary of a
  1 23 covered entity who is provided health coverage by the covered
  1 24 entity.  "Covered individual" includes a dependent or other
  1 25 person provided health coverage through a policy, contract, or
  1 26 plan for a covered individual.
  1 27    4.  "Generic drug" means a chemically equivalent copy of a
  1 28 brand=name drug with an expired patent.
  1 29    5.  "Labeler" means an entity or person that receives
  1 30 prescription drugs from a manufacturer or wholesaler and
  1 31 repackages those drugs for later retail sale and that has a
  1 32 labeler code from the federal food and drug administration
  1 33 under 21 C.F.R. } 270.20l.
  1 34    6.  "Pharmacy benefits management" means the procurement of
  1 35 prescription drugs at a negotiated rate for dispensing within
  2  1 this state to covered individuals, the administration or
  2  2 management of prescription drug benefits provided by a covered
  2  3 entity for the benefit of covered individuals, or any of the
  2  4 following services provided with regard to the administration
  2  5 of the following pharmacy benefits:
  2  6    a.  Mail service pharmacy.
  2  7    b.  Claims processing, retail network management, or
  2  8 payment of claims to pharmacies for prescription drugs
  2  9 dispensed to covered individuals.
  2 10    c.  Clinical formulary development and management services.
  2 11    d.  Rebate contracting and administration.
  2 12    e.  Certain patient compliance, therapeutic intervention,
  2 13 or generic substitution programs.
  2 14    f.  Disease management programs involving prescription drug
  2 15 utilization.
  2 16    7.  "Pharmacy benefits manager" means an entity that
  2 17 performs pharmacy benefits management services.  "Pharmacy
  2 18 benefits manager" includes a person or entity acting for a
  2 19 pharmacy benefits manager in a contractual or employment
  2 20 relationship in the performance of pharmacy benefits
  2 21 management services for a covered entity.  "Pharmacy benefits
  2 22 manager" does not include a health insurance carrier or its
  2 23 subsidiary when the health insurance carrier or its subsidiary
  2 24 is providing pharmacy benefits management services to its own
  2 25 insureds; or a public self=funded pool or a private single
  2 26 employer self=funded plan that provides such benefits or
  2 27 services directly to its beneficiaries.
  2 28    8.  "Prescription drug" means prescription drug as defined
  2 29 in section 155A.3.
  2 30    9.  "Prescription drug order" means a written order from a
  2 31 practitioner or an oral order from a practitioner or the
  2 32 practitioner's authorized agent who communicates the
  2 33 practitioner's instructions for a prescription drug or device
  2 34 to be dispensed.
  2 35    10.  "Proprietary information" means information on
  3  1 pricing, costs, revenue, taxes, market share, negotiating
  3  2 strategies, customers, or personnel held by private entities
  3  3 and used for that private entity's business purposes.
  3  4    11.  "Trade secret"  means information, including a
  3  5 formula, pattern, compilation, program, device, method,
  3  6 technique, or process, that meets all of the following
  3  7 conditions:
  3  8    a.  Derives independent economic value, actual or
  3  9 potential, from not being generally known to, and not being
  3 10 readily ascertainable by proper means by, other persons who
  3 11 can obtain economic value from its disclosure or use.
  3 12    b.  Is the subject of efforts that are reasonable under the
  3 13 circumstances to maintain its secrecy.
  3 14    Sec. 2.  NEW SECTION.  155B.2  PHARMACY BENEFITS MANAGER ==
  3 15 LICENSE.
  3 16    1.  A person shall not perform or act as a pharmacy
  3 17 benefits manager in this state without obtaining an annual
  3 18 license to do business in this state from the commissioner
  3 19 under this section.
  3 20    2.  The commissioner shall adopt rules, pursuant to chapter
  3 21 17A, relating to the issuance of a license under this section.
  3 22 The rules shall include but are not limited to inclusion of
  3 23 all of the following:
  3 24    a.  Definition of terms.
  3 25    b.  Use of prescribed forms.
  3 26    c.  Reporting requirements.
  3 27    d.  Enforcement procedures.
  3 28    e.  Protection of proprietary information and trade
  3 29 secrets.
  3 30    Sec. 3.  NEW SECTION.  155B.3  MANAGER TO PERFORM DUTIES IN
  3 31 GOOD FAITH.
  3 32    Each pharmacy benefits manager shall perform its duties
  3 33 exercising good faith and fair dealing toward the covered
  3 34 entity and covered individuals.
  3 35    Sec. 4.  NEW SECTION.  155B.4  DISCLOSURE OF REVENUES
  4  1 RECEIVED FROM PHARMACEUTICAL MANUFACTURER OR LABELER UNDER
  4  2 CONTRACT WITH MANAGER == CONTENT == FEES.
  4  3    1.  A covered entity may request that any pharmacy benefits
  4  4 manager with which it has a pharmacy benefits management
  4  5 services contract disclose to the covered entity, the amount
  4  6 of all rebate revenues and the nature, type, and amounts of
  4  7 all other revenues that the pharmacy benefits manager receives
  4  8 from each pharmaceutical manufacturer or labeler with whom the
  4  9 pharmacy benefits manager has a contract.  The pharmacy
  4 10 benefits manager shall disclose all of the following in
  4 11 writing:
  4 12    a.  The aggregate amount and, for a list of drugs to be
  4 13 specified in the contract, the specific amount, of all rebates
  4 14 and other retrospective utilization discounts received by the
  4 15 pharmacy benefits manager, directly or indirectly, from each
  4 16 pharmaceutical manufacturer or labeler that is earned in
  4 17 connection with the dispensing of prescription drugs to
  4 18 covered individuals of the health benefit plans issued by the
  4 19 covered entity or for which the covered entity is the
  4 20 designated administrator.
  4 21    b.  The nature, type, and amount of all other revenue
  4 22 received by the pharmacy benefits manager directly or
  4 23 indirectly from each pharmaceutical manufacturer or labeler
  4 24 for any other products or services provided to the
  4 25 pharmaceutical manufacturer or labeler by the pharmacy
  4 26 benefits manager with respect to programs that the covered
  4 27 entity offers or provides to its enrollees.
  4 28    c.  Any prescription drug utilization information requested
  4 29 by the covered entity relating to covered individuals.
  4 30    2.  A pharmacy benefits manager shall provide the
  4 31 information requested by the covered entity for such
  4 32 disclosure within thirty days of receipt of the request.  If
  4 33 requested, the information shall be provided no less than once
  4 34 each year.  The contract entered into between the pharmacy
  4 35 benefits manager and the covered entity shall specify any fees
  5  1 to be charged for drug utilization reports requested by the
  5  2 covered entity.
  5  3    Sec. 5.  NEW SECTION.  155B.5  PERMISSION OF ENTITY
  5  4 REQUIRED TO CONTACT COVERED INDIVIDUAL == EXCEPTION.
  5  5    A pharmacy benefits manager, unless authorized pursuant to
  5  6 the terms of its contract with a covered entity, shall not
  5  7 contact any covered individual without the express written
  5  8 permission of the covered entity.
  5  9    Sec. 6.  NEW SECTION.  155B.6  CONFIDENTIALITY OF
  5 10 INFORMATION == INJUNCTION == DAMAGES.
  5 11    1.  With the exception of utilization information, a
  5 12 covered entity shall maintain any information disclosed in
  5 13 response to a request pursuant to section 155B.4 as
  5 14 confidential and proprietary information, and shall not use
  5 15 such information for any other purpose or disclose such
  5 16 information to any other person except as provided in this
  5 17 chapter or in the pharmacy benefits management services
  5 18 contract between the parties.
  5 19    2.  A covered entity that discloses information in
  5 20 violation of this section is subject to an action for
  5 21 injunctive relief and is liable for any damages which are the
  5 22 direct and proximate result of such disclosure.
  5 23    3.  This section does not prohibit a covered entity from
  5 24 disclosing confidential or proprietary information to the
  5 25 commissioner, upon request.  Any such information obtained by
  5 26 the commissioner is confidential and privileged and is not
  5 27 open to public inspection or disclosure.
  5 28    Sec. 7.  NEW SECTION.  155B.7  AUDITS OF MANAGER'S RECORDS.
  5 29    1.  A covered entity may have the pharmacy benefits
  5 30 manager's records related to the rebates or other information
  5 31 described in section 155B.4 audited, to the extent the
  5 32 information relates directly or indirectly to such covered
  5 33 entity's contract, in accordance with the terms of the
  5 34 pharmacy benefits management services contract between the
  5 35 parties.  However, if the parties have not expressly provided
  6  1 for audit rights and the pharmacy benefits manager has advised
  6  2 the covered entity that other reasonable options are available
  6  3 and subject to negotiation, the covered entity may have such
  6  4 records audited as follows:
  6  5    a.  An audit may be conducted no more frequently than once
  6  6 in each twelve=month period upon not less than thirty business
  6  7 days' written notice to the pharmacy benefits manager.
  6  8    b.  The covered entity may select an independent firm to
  6  9 conduct the audit, and the independent firm shall sign a
  6 10 confidentiality agreement with the covered entity and the
  6 11 pharmacy benefits manager ensuring that all information
  6 12 obtained during the audit will be treated as confidential.
  6 13 The firm may not use, disclose, or otherwise reveal any such
  6 14 information in any manner or form to any person or entity
  6 15 except as otherwise permitted under the confidentiality
  6 16 agreement.  The covered entity shall treat all information
  6 17 obtained as a result of the audit as confidential, and may not
  6 18 use or disclose such information except as may be otherwise
  6 19 permitted under the terms of the contract between the covered
  6 20 entity and the pharmacy benefits manager or if ordered by a
  6 21 court of competent jurisdiction for good cause shown.
  6 22    c.  Any audit shall be conducted at the pharmacy benefits
  6 23 manager's office where such records are located, during normal
  6 24 business hours, without undue interference with the pharmacy
  6 25 benefits manager's business activities, and in accordance with
  6 26 reasonable audit procedures.
  6 27    Sec. 8.  NEW SECTION.  155B.8  DISPENSING OF SUBSTITUTE
  6 28 PRESCRIPTION DRUG FOR PRESCRIBED DRUG.
  6 29    1.  With regard to the dispensing of a substitute
  6 30 prescription drug for a prescribed drug to a covered
  6 31 individual, when the pharmacy benefits manager requests a
  6 32 substitution, the following provisions shall apply:
  6 33    a.  The pharmacy benefits manager may request the
  6 34 substitution of a lower=priced generic and therapeutically
  6 35 equivalent drug for a higher=priced prescribed drug.
  7  1    b.  With regard to substitutions in which the substitute
  7  2 drug's net cost is more for the covered individual or the
  7  3 covered entity than the prescribed drug, the substitution
  7  4 shall be made only for medical reasons that benefit the
  7  5 covered individual.
  7  6    2.  If a substitution is being requested pursuant to this
  7  7 section, the pharmacy benefits manager shall obtain the
  7  8 approval of the prescribing health professional prior to the
  7  9 substitution.
  7 10    3.  A pharmacy benefits manager shall not substitute an
  7 11 equivalent drug product contrary to a prescription drug order
  7 12 that prohibits a substitution.
  7 13    Sec. 9.  NEW SECTION.  155B.9  CIVIL ACTION == ENFORCEMENT
  7 14 OF CHAPTER == DAMAGES.
  7 15    A covered entity may bring a civil action to enforce the
  7 16 provisions of this chapter or to seek civil damages for the
  7 17 violation of the provisions of this chapter.
  7 18    Sec. 10.  NEW SECTION.  155B.10  APPLICATION OF CHAPTER TO
  7 19 CERTAIN CONTRACTS.
  7 20    The provisions of this chapter apply only to pharmacy
  7 21 benefits management services contracts entered into or renewed
  7 22 on or after July 1, 2005.
  7 23                           EXPLANATION
  7 24    This bill provides for the regulation of pharmacy benefits
  7 25 managers.  The bill provides definitions, requires that a
  7 26 pharmacy benefits manager in this state obtain an annual
  7 27 license from the commissioner of insurance, and directs the
  7 28 commissioner of insurance to adopt rules related to defining
  7 29 of terms, use of prescribed forms, reporting requirements,
  7 30 enforcement procedures, and protection of proprietary
  7 31 information and trade secrets.
  7 32    The bill requires pharmacy benefits managers to perform
  7 33 their duties exercising good faith and fair dealing toward the
  7 34 covered entity and covered individuals.
  7 35    The bill provides that a covered entity may request that a
  8  1 pharmacy benefits manager with which it has a pharmacy
  8  2 benefits management services contract disclose to the covered
  8  3 entity the amount of all rebate revenues and the nature, type,
  8  4 and amounts of all other revenues that the pharmacy benefits
  8  5 manager receives from each pharmaceutical manufacturer or
  8  6 labeler with whom the pharmacy benefits manager has a
  8  7 contract.  The bill specifies the information that the
  8  8 pharmacy benefits manager is to disclose in writing, requires
  8  9 the pharmacy benefits manager to provide the information
  8 10 requested by the covered entity within 30 days of receipt of
  8 11 the request, provides that if requested, the information is to
  8 12 be provided no less than once each year, and requires that the
  8 13 contract entered into between the pharmacy benefits manager
  8 14 and the covered entity specify any fees to be charged for drug
  8 15 utilization reports requested by the covered entity.
  8 16    The bill prohibits a pharmacy benefits manager from
  8 17 contacting a covered individual without the express written
  8 18 permission of the covered entity, unless authorized pursuant
  8 19 to the terms of its contract with a covered entity.
  8 20    The bill provides that with the exception of utilization
  8 21 information, a covered entity is required to maintain any
  8 22 information disclosed in response to a request as confidential
  8 23 and proprietary information, and prohibits the covered entity
  8 24 from using any such information for any other purpose or
  8 25 disclosing such information to any other person except as
  8 26 provided in the bill or in the pharmacy benefits management
  8 27 services contract between the parties.  The bill provides that
  8 28 any covered entity who discloses information in violation of
  8 29 the bill is subject to an action for injunctive relief and is
  8 30 liable for any damages which are the direct and proximate
  8 31 result of such disclosure.  The bill provides that the
  8 32 prohibition against disclosure of information provided does
  8 33 not prohibit a covered entity from disclosing confidential or
  8 34 proprietary information to the commissioner of insurance, upon
  8 35 request, but also provides that any such information obtained
  9  1 by the commissioner is confidential and privileged and is not
  9  2 open to public inspection or disclosure.
  9  3    The bill provides for auditing of the pharmacy benefits
  9  4 manager's records to the extent the information included in
  9  5 the records relates directly or indirectly to the covered
  9  6 entity's contract.
  9  7    The bill provides that a pharmacy benefits manager may
  9  8 request a substitution for a prescribed drug to a covered
  9  9 individual and provides certain limitations on the
  9 10 substitution.
  9 11    The bill provides that a covered entity may bring a civil
  9 12 action to enforce the provisions of the bill or to seek civil
  9 13 damages for a violation of the bill.  The bill provides that
  9 14 the provisions of the bill apply only to pharmacy benefits
  9 15 management services contracts entered into or renewed on or
  9 16 after July 1, 2005.
  9 17 LSB 1013YH 81
  9 18 pf/gg/14