MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Insurance
By: Representative Hobgood-Wilkes
AN ACT TO AMEND SECTION 73-21-153, MISSISSIPPI CODE OF 1972, TO DEFINE NEW TERMS AND REVISE THE DEFINITIONS OF EXISTING TERMS UNDER THE PHARMACY BENEFIT PROMPT PAY ACT; TO AMEND SECTION 73-21-155, MISSISSIPPI CODE OF 1972, TO PROHIBIT PHARMACY BENEFIT MANAGERS FROM CHARGING A PLAN SPONSOR MORE FOR A PRESCRIPTION DRUG THAN THE NET AMOUNT IT PAYS A PHARMACY FOR THE PRESCRIPTION DRUG; TO AMEND SECTION 73-21-156, MISSISSIPPI CODE OF 1972, TO REQUIRE PHARMACY BENEFIT MANAGERS TO PROVIDE A REASONABLE ADMINISTRATIVE APPEAL PROCEDURE TO ALLOW PHARMACIES TO CHALLENGE A REIMBURSEMENT FOR A SPECIFIC DRUG OR DRUGS AS BEING BELOW THE REIMBURSEMENT RATE REQUIRED BY THE PRECEDING PROVISION; TO PROVIDE THAT IF THE APPEAL IS UPHELD, THE PHARMACY BENEFIT MANAGER SHALL MAKE THE CHANGE IN THE PAYMENT TO THE REQUIRED REIMBURSEMENT RATE; TO PROVIDE THAT A PATIENT SHALL NOT PAY A COPAYMENT FOR A PRESCRIPTION THAT EXCEEDS THE TOTAL REIMBURSEMENT PAID BY THE PHARMACY BENEFIT MANAGER TO THE PHARMACY; TO AMEND SECTION 73-21-157, MISSISSIPPI CODE OF 1972, TO REQUIRE THAT A PHARMACY BENEFIT MANAGER LICENSE BE RENEWED ANNUALLY; THAT A PHARMACY SERVICES ADMINISTRATIVE ORGANIZATION TO PROVIDE TO A PHARMACY OR PHARMACIST A COPY OF ANY CONTRACT ENTERED INTO ON BEHALF OF THE PHARMACY OR PHARMACIST BY THE PHARMACY SERVICES ADMINISTRATIVE ORGANIZATION; TO AMEND SECTION 73-21-161, MISSISSIPPI CODE OF 1972, TO PROHIBIT PHARMACIES, PHARMACY BENEFIT MANAGERS AND PHARMACY BENEFIT MANAGER AFFILIATES FROM ORDERING A PATIENT TO USE AN AFFILIATE PHARMACY OF ANOTHER PHARMACY BENEFIT MANAGER, OR OFFERING OR IMPLEMENTING PLAN DESIGNS THAT PENALIZE A PATIENT WHEN A PATIENT CHOOSES NOT TO USE AN AFFILIATE PHARMACY OR THE AFFILIATE PHARMACY OF ANOTHER PHARMACY BENEFIT MANAGER, OR INTERFERING WITH THE PATIENT'S RIGHT TO CHOOSE THE PATIENT'S PHARMACY OR PROVIDER OF CHOICE; TO CREATE NEW SECTION 73-21-162, MISSISSIPPI CODE OF 1972, TO PROHIBIT PHARMACY BENEFIT MANAGERS AND PHARMACY BENEFIT MANAGER AFFILIATES FROM PENALIZING OR RETALIATING AGAINST A PHARMACIST, PHARMACY OR PHARMACY EMPLOYEE FOR EXERCISING ANY RIGHTS UNDER THIS ACT, INITIATING ANY JUDICIAL OR REGULATORY ACTIONS, OR APPEARING BEFORE ANY GOVERNMENTAL AGENCY, LEGISLATIVE MEMBER OR BODY OR ANY JUDICIAL AUTHORITY; TO AMEND SECTION 73-21-163, MISSISSIPPI CODE OF 1972, TO AUTHORIZE THE BOARD OF PHARMACY, FOR THE PURPOSES OF CONDUCTING INVESTIGATIONS, TO CONDUCT EXAMINATIONS OF PHARMACY BENEFIT MANAGERS AND TO ISSUE SUBPOENAS TO OBTAIN DOCUMENTS OR RECORDS THAT IT DEEMS RELEVANT TO THE INVESTIGATION; TO PROVIDE THAT MONIES FROM PENALTIES SHALL BE DEPOSITED IN A SPECIAL FUND FOR PURPOSES OF THE BOARD IN REGULATING PHARMACY BENEFIT MANAGERS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 73-21-153, Mississippi Code of 1972, is amended as follows:
73-21-153. For purposes of Sections 73-21-151 through 73-21-163, the following words and phrases shall have the meanings ascribed herein unless the context clearly indicates otherwise:
(a) "Board" means the State Board of Pharmacy.
(b) "Clean claim" means a completed billing instrument, paper or electronic, received by a pharmacy benefit manager from a pharmacist or pharmacies or the insured, which is accepted and payment remittance advice is provided by the pharmacy benefit manager. A clean claim includes resubmitted claims with previously identified deficiencies corrected.
( * * *c) "Commissioner" means the
Mississippi Commissioner of Insurance.
( * * *d) "Day" means a calendar
day, unless otherwise defined or limited.
( * * *e) "Electronic claim" means
the transmission of data for purposes of payment of covered prescription drugs,
other products and supplies, and pharmacist services in an electronic data
format specified by a pharmacy benefit manager and approved by the department.
( * * *f) "Electronic adjudication"
means the process of electronically receiving * * * and reviewing an electronic claim
and either accepting and providing payment remittance advice for the electronic
claim or rejecting an electronic claim.
( * * *g) "Enrollee" means an
individual who has been enrolled in a pharmacy benefit management plan or a health
insurance plan or both.
( * * *h) "Health insurance plan"
means benefits consisting of prescription drugs, other products and supplies,
and pharmacist services provided directly, through insurance or reimbursement,
or otherwise and including items and services paid for as prescription drugs,
other products and supplies, and pharmacist services under any hospital or
medical service policy or certificate, hospital or medical service plan
contract, preferred provider organization agreement, or health maintenance
organization contract offered by a health insurance issuer.
(i) "Payment remittance advice" means the claim detail that the pharmacy receives when successfully processing an electronic or paper claim. The claim detail shall contain, but is not limited to:
(i) The amount that the pharmacy benefit manager will reimburse for product ingredient; and
(ii) The amount that the pharmacy benefit manager will reimburse for product dispensing fee; and
(iii) The amount that the pharmacy benefit manager dictates the patient must pay.
(j) "Pharmacist," "pharmacist services" and "pharmacy" or "pharmacies" shall have the same definitions as provided in Section 73-21-73.
( * * *k) "Pharmacy benefit manager" * * * includes
those entities defined as a pharmacy benefit manager in Section 73-21-179 and
also includes those entities sponsoring or providing cash discount cards as defined
in Section 83-9-6.1. * * * However, through June 30, 2014, the term "pharmacy benefit manager"
shall not include an insurance company that provides an integrated health
benefit plan and that does not separately contract for pharmacy benefit
management services. From and after July 1, 2014, The term "pharmacy
benefit manager" shall not include:
(i) An
insurance company unless the insurance company is providing services as a
pharmacy benefit manager as defined in Section 73-21-179, in which case the
insurance company shall be subject to Sections 73-21-151 through * * * 73-21-163 only for
those pharmacy benefit manager services * * *; and
(ii) The * * * Mississippi Division of
Medicaid or its contractors when performing pharmacy benefit manager services
for the Division of Medicaid.
(l) "Pharmacy benefit management plan" means an arrangement for the delivery of pharmacist's services in which a pharmacy benefit manager undertakes to administer the payment or reimbursement of any of the costs of pharmacist's services for an enrollee or participant on a prepaid or insured basis or otherwise that:
(i) Contains one or more incentive arrangements intended to influence the cost or level of pharmacist's services between the plan sponsor and one or more pharmacies with respect to the delivery of pharmacist's services; and
(ii) Requires or creates benefit payment differential incentives for enrollees to use under contract with the pharmacy benefit manager.
( * * *m) "Pharmacy benefit manager
affiliate" means * * * an entity that directly or
indirectly, * * * owns or controls, is owned or controlled
by, or is under common ownership or control with a pharmacy benefit manager.
* * *
(n) "Pharmacy services administrative organization" means any entity that contracts with a pharmacy or pharmacist to assist with third-party payer interactions and that may provide a variety of other administrative services, including contracting with pharmacy benefits managers on behalf of pharmacies and managing pharmacies' claims payments for third-party payers.
(o) "Plan sponsors" means the employers, insurance companies, unions and health maintenance organizations that contract with a pharmacy benefit manager for delivery of prescription services.
( * * *p) "Uniform claim form"
means a form prescribed by rule by the State Board of Pharmacy; however,
for purposes of Sections 73-21-151 through * * * 73-21-163, the board
shall adopt the same definition or rule where the State Department of Insurance
has adopted a rule covering the same type of claim. The board may modify the
terminology of the rule and form when necessary to comply with the provisions
of Sections 73-21-151 through * * * 73-21-163.
* * *
(q) "Wholesale acquisition cost" means the wholesale acquisition cost of the drug as defined in 42 USC Section 1395w-3a(c)(6)(B).
SECTION 2. Section 73-21-155, Mississippi Code of 1972, is amended as follows:
73-21-155. (1) Reimbursement under a contract to a pharmacist or pharmacy for prescription drugs and other products and supplies that is calculated according to a formula that uses Medi-Span, Gold Standard or a nationally recognized reference that has been approved by the board in the pricing calculation shall use the most current reference price or amount in the actual or constructive possession of the pharmacy benefit manager, its agent, or any other party responsible for reimbursement for prescription drugs and other products and supplies on the date of electronic adjudication or on the date of service shown on the nonelectronic claim.
(2) Any contract that provides for less than reimbursement provided in subsection (1) of this section violates the public policy of the state and is void.
( * * *3) Pharmacy benefit managers, their
agents and other parties responsible for reimbursement for prescription drugs
and other products and supplies shall be required to update the nationally
recognized reference prices or amounts used for calculation of reimbursement
for prescription drugs and other products and supplies no less than every three
(3) business days.
( * * *4) (a) All benefits payable under a
pharmacy benefit management plan shall be paid within seven (7) days after
receipt of * * * a clean electronic claim where * * * the claim was electronically
adjudicated, and shall be paid within thirty-five (35) days after receipt
of due written proof of a clean claim where claims are submitted in paper
format. Benefits due under the plan and claims are overdue if not paid within
seven (7) days or thirty-five (35) days, whichever is applicable, after the
pharmacy benefit manager receives a clean claim containing necessary
information essential for the pharmacy benefit manager to administer
preexisting condition, coordination of benefits and subrogation provisions
under the plan sponsor's health insurance plan. * * *
* * *
( * * *b) * * *
If an electronic claim is denied, the pharmacy benefit manager
shall * * *
notify the pharmacist or pharmacy * * *
of the reasons why the claim or portion thereof is not clean and will not be
paid and what substantiating documentation and information is required to
adjudicate the claim as clean. If a written claim is denied, the pharmacy
benefit manager shall notify the pharmacy or pharmacies. * * * No later than thirty-five (35)
days * * * of receipt
of such claim, the pharmacy benefit manager shall * * * provide the pharmacist or
pharmacy * * * the reasons why the
claim or portion thereof is not clean and will not be paid and what
substantiating documentation and information is required to adjudicate the
claim as clean. Any claim or portion thereof resubmitted with the supporting
documentation and information requested by the pharmacy benefit manager shall
be paid within twenty (20) days after receipt.
(c) A claim for pharmacist services may not be retroactively denied or reduced after adjudication of the claim unless the:
(i) Original claim was submitted fraudulently;
(ii) Original claim payment was incorrect because the pharmacy or pharmacist had already been paid for the pharmacist services;
(iii) Pharmacist services were not rendered by the pharmacy or pharmacist; or
(iv) Adjustment was agreed upon by the pharmacy prior to the denial or reduction.
( * * *5) If the board finds that any
pharmacy benefit manager, agent or other party responsible for reimbursement
for prescription drugs and other products and supplies has not paid ninety-five
percent (95%) of clean claims * * * received
from all pharmacies in a calendar quarter, he shall be subject to administrative
penalty of not more than Twenty-five Thousand Dollars ($25,000.00) to be
assessed by the State Board of Pharmacy.
(a) Examinations to determine
compliance with this * * *
section may be conducted by the board. The board may contract with
qualified impartial outside sources to assist in examinations to determine compliance.
The expenses of any such examinations shall be paid by the pharmacy benefit
manager examined and deposited into a special fund that is created in the State
Treasury, which shall be used by the board, upon appropriation by the Legislature,
to support the operations of the board relating to the regulation of pharmacy
benefit managers.
(b) Nothing in the provisions of this section shall require a pharmacy benefit manager to pay claims that are not covered under the terms of a contract or policy of accident and sickness insurance or prepaid coverage.
(c) If the claim is not denied for valid and proper reasons by the end of the applicable time period prescribed in this provision, the pharmacy benefit manager must pay the pharmacy (where the claim is owed to the pharmacy) or the patient (where the claim is owed to a patient) interest on accrued benefits at the rate of one and one-half percent (1-1/2%) per month accruing from the day after payment was due on the amount of the benefits that remain unpaid until the claim is finally settled or adjudicated. Whenever interest due pursuant to this provision is less than One Dollar ($1.00), such amount shall be credited to the account of the person or entity to whom such amount is owed.
(d) Any pharmacy
benefit manager and a pharmacy may enter into an express written agreement containing
timely claim payment provisions which differ from, but are at least as
stringent as, the provisions set forth under subsection ( * * *4) of this section, and in such case,
the provisions of the written agreement shall govern the timely payment of claims
by the pharmacy benefit manager to the pharmacy. If the express written
agreement is silent as to any interest penalty where claims are not paid in
accordance with the agreement, the interest penalty provision of * * * paragraph
(c) of this subsection shall apply.
(e) The State Board of Pharmacy may adopt rules and regulations necessary to ensure compliance with this subsection.
( * * *6) (a) For purposes of this subsection
( * * *6),
"network pharmacy" means a licensed pharmacy in this state that has a
contract with a pharmacy benefit manager to provide covered drugs at a
negotiated reimbursement rate. A network pharmacy or pharmacist may decline to
provide a brand name drug, multisource generic drug, or service, if the network
pharmacy or pharmacist is paid less than that network pharmacy's * * *
cost for the * * * prescription. If the network
pharmacy or pharmacist declines to provide such drug or service, the pharmacy or
pharmacist shall provide the customer with adequate information as to where the
prescription for the drug or service may be filled.
(b) The State Board of
Pharmacy shall adopt rules and regulations necessary to implement and ensure
compliance with this subsection, including, but not limited to, rules and
regulations that address access to pharmacy services in rural or underserved
areas in cases where a network pharmacy or pharmacist declines to provide a
drug or service under paragraph (a) of this subsection. * * *
( * * *7) A pharmacy benefit manager shall
not directly or indirectly retroactively deny or reduce a claim or aggregate of
claims after the claim or aggregate of claims has been adjudicated.
SECTION 3. Section 73-21-156, Mississippi Code of 1972, is amended as follows:
73-21-156. (1) As used in this section, the following terms shall be defined as provided in this subsection:
(a) "Maximum allowable cost list" means a listing of drugs or other methodology used by a pharmacy benefit manager, directly or indirectly, setting the maximum allowable payment to a pharmacy or pharmacist for a generic drug, brand-name drug, biologic product or other prescription drug. The term "maximum allowable cost list" includes without limitation:
(i) Average acquisition cost, including national average drug acquisition cost;
(ii) Average manufacturer price;
(iii) Average wholesale price;
(iv) Brand effective rate or generic effective rate;
(v) Discount indexing;
(vi) Federal upper limits;
(vii) Wholesale acquisition cost; and
(viii) Any other term that a pharmacy benefit manager or a health care insurer may use to establish reimbursement rates to a pharmacist or pharmacy for pharmacist services.
(b) "Pharmacy acquisition cost" means the amount that a pharmaceutical wholesaler charges for a pharmaceutical product as listed on the pharmacy's billing invoice.
(2) Before a pharmacy benefit manager places or continues a particular drug on a maximum allowable cost list, the drug:
(a) If * * * a generic equivalent drug product as
defined in 73-21-73, shall be listed as therapeutically equivalent and pharmaceutically
equivalent "A" or "B" rated in the United States Food and Drug
Administration's most recent version of the "Orange Book" or "Green
Book" or have an NR or NA rating by Medi-Span, Gold Standard, or a similar
rating by a nationally recognized reference approved by the board;
(b) Shall be available for purchase by each pharmacy in the state from national or regional wholesalers operating in Mississippi; and
(c) Shall not be obsolete.
(3) A pharmacy benefit manager shall:
(a) Provide access to its maximum allowable cost list to each pharmacy subject to the maximum allowable cost list;
(b) Update its maximum allowable cost list on a timely basis, but in no event longer than three (3) calendar days; and
(c) Provide a process for each pharmacy subject to the maximum allowable cost list to receive prompt notification of an update to the maximum allowable cost list.
(4) A pharmacy benefit manager shall:
(a) Provide a reasonable administrative appeal procedure to allow pharmacies to challenge a maximum allowable cost list and reimbursements made under a maximum allowable cost list for a specific drug or drugs as:
(i) Not meeting the requirements of this section; or
(ii) Being below the pharmacy acquisition cost.
(b) The reasonable administrative appeal procedure shall include the following:
(i) A dedicated telephone number, email address and website for the purpose of submitting administrative appeals;
(ii) The ability to submit an administrative appeal directly to the pharmacy benefit manager regarding the pharmacy benefit management plan or through a pharmacy service administrative organization; and
(iii) A period of no
less than * * *
forty-five (45) business days to file an administrative appeal.
(c) The pharmacy benefit
manager shall respond to the challenge under paragraph (a) of this subsection (4)
within * * *
forty-five (45) business days after receipt of the challenge.
(d) If a challenge is made
under paragraph (a) of this subsection (4), the pharmacy benefit manager shall within * * * forty-five (45) business days
after receipt of the challenge either:
(i) * * * Uphold the appeal * * * and:
1. Make the change in the maximum allowable cost list payment to at least the pharmacy acquisition cost;
2. Permit the challenging pharmacy or pharmacist to reverse and rebill the claim in question if necessary;
3. Provide the National Drug Code that the increase or change is based on to the pharmacy or pharmacist; and
4. Make the change under item 1 of this subparagraph (i) effective for each similarly situated pharmacy as defined by the payor subject to the maximum allowable cost list; or
(ii) * * * Deny the appeal * * * and:
1. Provide
the challenging pharmacy or pharmacist the National Drug Code and the name of the
national or regional pharmaceutical wholesalers operating in Mississippi that have
the drug currently in stock at a price below the maximum allowable cost as listed
on the maximum allowable cost list; * * * and
* * *2. If the National Drug Code provided
by the pharmacy benefit manager is not available below the pharmacy acquisition
cost from the pharmaceutical wholesaler from whom the pharmacy or pharmacist purchases
the majority of prescription drugs for resale, then the pharmacy benefit manager
shall adjust the maximum allowable cost as listed on the maximum allowable cost
list above the challenging pharmacy's pharmacy acquisition cost and permit the pharmacy
to reverse and rebill each claim affected by the inability to procure the drug at
a cost that is equal to or less than the previously challenged maximum allowable
cost.
(5) (a) The board may conduct an audit or audits of appeals denied under the provisions of subsection (4) of this section to ensure compliance with its requirements. In conducting audits, the board is empowered to request production of documents pertaining to compliance with the provisions of this section, and documents so requested shall be produced within seven (7) days of the request unless extended by the board or its duly authorized staff.
(b) The pharmacy benefit manager being audited shall pay all costs of such audit. The cost of the audit examination shall be deposited into the special fund created in Section 73-21-155, and shall be used by the board to support the operations of the board relating to the regulation of pharmacy benefit managers.
(c) The board is authorized to hire independent consultants to conduct appeal audits of a pharmacy benefit manager and expend funds collected under this section to pay the cost of performing audit examination services.
( * * *6) (a) A pharmacy benefit manager
shall not reimburse a pharmacy or pharmacist in the state an amount less than
the amount that the pharmacy benefit manager reimburses a pharmacy benefit
manager affiliate for providing the same pharmacist services.
(b) The amount shall be calculated on a per unit basis based on the same brand and generic product identifier or brand and generic code number.
(7) A pharmacy benefit manager or third-party payer may not charge or cause a patient to pay a copayment that exceeds the total reimbursement paid by the pharmacy benefit manager to the pharmacy.
SECTION 4. Section 73-21-157, Mississippi Code of 1972, is amended as follows:
73-21-157. (1) Before beginning to do business as a pharmacy benefit manager, a pharmacy benefit manager shall obtain a license to do business from the board. This license shall be renewed annually on or before the anniversary date of the license. To obtain a license or to renew a license, the applicant shall submit an application to the board on a form to be prescribed by the board.
(2) Each pharmacy benefit manager providing pharmacy management benefit plans in this state shall file a statement with the board annually by March 1 or within sixty (60) days of the end of its fiscal year if not a calendar year. The statement shall be verified by at least two (2) principal officers and shall cover the preceding calendar year or the immediately preceding fiscal year of the pharmacy benefit manager.
(3) The statement shall be on forms prescribed by the board and shall include:
(a) A financial statement of the organization, including its balance sheet and income statement for the preceding year; and
(b) Any other information relating to the operations of the pharmacy benefit manager required by the board under this section.
(4) (a) Any information required to be submitted to the board pursuant to licensure application that is considered proprietary by a pharmacy benefit manager shall be marked as confidential when submitted to the board. All such information shall not be subject to the provisions of the federal Freedom of Information Act or the Mississippi Public Records Act and shall not be released by the board unless subject to an order from a court of competent jurisdiction. The board shall destroy or delete or cause to be destroyed or deleted all such information thirty (30) days after the board determines that the information is no longer necessary or useful.
(b) Any person who knowingly releases, causes to be released or assists in the release of any such information shall be subject to a monetary penalty imposed by the board in an amount not exceeding Fifty Thousand Dollars ($50,000.00) per violation. When the board is considering the imposition of any penalty under this paragraph (b), it shall follow the same policies and procedures provided for the imposition of other sanctions in the Pharmacy Practice Act. Any penalty collected under this paragraph (b) shall be deposited into the special fund, and shall be used by the board, upon appropriation of the Legislature, to support the operations of the board relating to the regulation of pharmacy benefit managers.
(c) All employees of the board who have access to the information described in paragraph (a) of this subsection shall be fingerprinted, and the board shall submit a set of fingerprints for each employee to the Department of Public Safety for the purpose of conducting a criminal history records check. If no disqualifying record is identified at the state level, the Department of Public Safety shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history records check.
(5) If the pharmacy benefit manager is audited annually by an independent certified public accountant, a copy of the certified audit report shall be filed annually with the board by June 30 or within thirty (30) days of the report being final.
(6) The board may extend the time prescribed for any pharmacy benefit manager for filing annual statements or other reports or exhibits of any kind for good cause shown. However, the board shall not extend the time for filing annual statements beyond sixty (60) days after the time prescribed by subsection (1) of this section. The board may waive the requirements for filing financial information for the pharmacy benefit manager if an affiliate of the pharmacy benefit manager is already required to file such information under current law with the Commissioner of Insurance and allow the pharmacy benefit manager to file a copy of documents containing such information with the board in lieu of the statement required by this section.
(7) The expense of administering this section shall be assessed annually by the board against all pharmacy benefit managers operating in this state.
(8) A pharmacy benefit manager or third-party payor may not require pharmacy accreditation standards or recertification requirements inconsistent with, more stringent than, or in addition to federal and state requirements for licensure as a pharmacy in this state.
(9) A pharmacy or pharmacist that belongs to a pharmacy services administrative organization shall be provided with a true and correct copy of any contract that the pharmacy services administrative organization enters into with a pharmacy benefit manager or third-party payer on the pharmacy's or pharmacist's behalf.
SECTION 5. Section 73-21-161, Mississippi Code of 1972, is amended as follows:
73-21-161. (1) As used in this section, the term "referral" means:
(a) Ordering of a patient to a pharmacy benefit manager affiliate by a pharmacy benefit manager or a pharmacy benefit manager affiliate either orally or in writing, including online messaging, or any form of communication;
(b) Requiring a patient to use an affiliate pharmacy of another pharmacy benefit manager;
( * * *c) Offering or implementing plan designs
that require patients to use affiliated pharmacies or affiliated pharmacies
of another pharmacy benefit manager or that penalize a patient, including
requiring a patient to pay the full cost for a prescription or a higher cost-share,
when a patient chooses not to use an affiliate pharmacy or the affiliate
pharmacy of another pharmacy benefit manager; or
( * * *d) Patient or prospective patient specific
advertising, marketing, or promotion of a pharmacy by * * * a pharmacy benefit manager or pharmacy
benefit manager affiliate.
The term "referral" does not include a pharmacy's inclusion by a pharmacy benefit manager or a pharmacy benefit manager affiliate in communications to patients, including patient and prospective patient specific communications, regarding network pharmacies and prices, provided that the pharmacy benefit manager or a pharmacy benefit manager affiliate includes information regarding eligible nonaffiliate pharmacies in those communications and the information provided is accurate.
(2) A pharmacy, pharmacy benefit manager, or pharmacy benefit manager affiliate licensed or operating in Mississippi shall be prohibited from:
(a) Making referrals;
(b) Transferring or sharing
records relative to prescription information containing patient identifiable and
prescriber identifiable data to or from a pharmacy benefit manager affiliate for
any commercial purpose; however, nothing in this section shall be construed to prohibit
the exchange of prescription information between a pharmacy and its affiliate for
the limited purposes of pharmacy reimbursement; formulary compliance; pharmacy care;
public health activities otherwise authorized by law; or utilization review by a
health care provider; * * *
(c) Presenting a claim
for payment to any individual, third-party payor, affiliate, or other entity for
a service furnished pursuant to a referral from * * * a pharmacy benefit manager or pharmacy
benefit manager affiliate * * *; or
(d) Interfering with the patient's right to choose the patient's pharmacy or provider of choice, including inducement, required referrals or offering financial or other incentives or measures that would constitute a violation of Section 83-9-6.
(3) This section shall not be construed to prohibit a pharmacy from entering into an agreement with a pharmacy benefit manager affiliate to provide pharmacy care to patients, provided that the pharmacy does not receive referrals in violation of subsection (2) of this section and the pharmacy provides the disclosures required in subsection (1) of this section.
(4) If a pharmacy licensed or holding a nonresident pharmacy permit in this state has an affiliate, it shall annually file with the board a disclosure statement identifying all such affiliates.
(5) In addition to any other remedy provided by law, a violation of this section by a pharmacy shall be grounds for disciplinary action by the board under its authority granted in this chapter.
(6) A pharmacist who fills a prescription that violates subsection (2) of this section shall not be liable under this section.
SECTION 6. The following shall be codified as Section 73-21-162, Mississippi Code of 1972:
73-21-162. (1) Retaliation is prohibited.
(a) A pharmacy benefit manager may not retaliate against a pharmacist or pharmacy based on the pharmacist's or pharmacy's exercise of any right or remedy under this chapter. Retaliation prohibited by this section includes, but is not limited to:
(i) Terminating or refusing to renew a contract with the pharmacist or pharmacy;
(ii) Subjecting the pharmacist or pharmacy to an increased frequency of audits, number of claims audited, or amount of monies for claims audited; or
(iii) Failing to promptly pay the pharmacist or pharmacy any money owed by the pharmacy benefit manager to the pharmacist or pharmacy.
(b) For the purposes of this section, a pharmacy benefit manager is not considered to have retaliated against a pharmacy if the pharmacy benefit manager:
(i) Takes an action in response to a credible allegation of fraud against the pharmacist or pharmacy; and
(ii) Provides reasonable notice to the pharmacist or pharmacy of the allegation of fraud and the basis of the allegation before initiating an action.
(2) A pharmacy benefit manager or pharmacy benefit manager affiliate shall not penalize or retaliate against a pharmacist, pharmacy or pharmacy employee for exercising any rights under this chapter, initiating any judicial or regulatory actions or discussing or disclosing information pertaining to an agreement with a pharmacy benefit manager or a pharmacy benefit manager affiliate when testifying or otherwise appearing before any governmental agency, legislative member or body or any judicial authority.
SECTION 7. Section 73-21-163, Mississippi Code of 1972, is amended as follows:
73-21-163. (1) Whenever the board has reason to believe that a pharmacy benefit manager or pharmacy benefit manager affiliate is using, has used, or is about to use any method, act or practice prohibited in Sections 73-21-151 through 73-21-163 and that proceedings would be in the public interest, it may bring an action in the name of the board against the pharmacy benefit manager or pharmacy benefit manager affiliate to restrain by temporary or permanent injunction the use of such method, act or practice. The action shall be brought in the Chancery Court of the First Judicial District of Hinds County, Mississippi. The court is authorized to issue temporary or permanent injunctions to restrain and prevent violations of Sections 73-21-151 through 73-21-163 and such injunctions shall be issued without bond.
(2) The board may impose a monetary
penalty on a pharmacy benefit manager or a pharmacy benefit manager affiliate for
noncompliance with the provisions of the Sections 73-21-151 through 73-21-163, in
amounts of not less than One Thousand Dollars ($1,000.00) per violation and not
more than Twenty-five Thousand Dollars ($25,000.00) per violation. Each day that
a violation continues * * * is a separate violation. The board shall
prepare a record entered upon its minutes that states the basic facts upon which
the monetary penalty was imposed. Any penalty collected under this subsection (2)
shall be deposited into the special fund of the board created in Section 73-21-155,
and shall be used by the board to support the operations of the board relating
to the regulation of pharmacy benefit managers.
(3) For the purposes of conducting investigations, the board, through its executive director, may conduct examinations of a pharmacy benefit manager and may also issue subpoenas to any individual, pharmacy, pharmacy benefit manager, or any other entity having documents or records that it deems relevant to the investigation. The board may contract with qualified impartial outside sources to assist in examinations to determine noncompliance with the provisions of Sections 73-21-151 through 73-21-163. Money collected by the board under subsection (2) of this section may be used to pay the cost of conducting or contracting for such examinations.
( * * *4) The board may assess a monetary penalty
for those reasonable costs that are expended by the board in the investigation and
conduct of a proceeding if the board imposes a monetary penalty under subsection
(2) of this section. A monetary penalty assessed and levied under this section
shall be paid to the board by the licensee, registrant or permit holder upon the
expiration of the period allowed for appeal of those penalties under Section 73-21-101,
or may be paid sooner if the licensee, registrant or permit holder elects. Any
penalty collected by the board under this subsection ( * * *4) shall be deposited into the special fund
of the board created in Section 73-21-155, and shall be used by the board to
support the operations of the board relating to the regulation of pharmacy
benefit managers.
( * * *5) When payment of a monetary penalty assessed
and levied by the board against a licensee, registrant or permit holder in accordance
with this section is not paid by the licensee, registrant or permit holder when
due under this section, the board shall have the power to institute and maintain
proceedings in its name for enforcement of payment in the chancery court of the
county and judicial district of residence of the licensee, registrant or permit
holder, or if the licensee, registrant or permit holder is a nonresident of the
State of Mississippi, in the Chancery Court of the First Judicial District of Hinds
County, Mississippi. When those proceedings are instituted, the board shall certify
the record of its proceedings, together with all documents and evidence, to the
chancery court and the matter shall be heard in due course by the court, which shall
review the record and make its determination thereon in accordance with the provisions
of Section 73-21-101. The hearing on the matter may, in the discretion of the chancellor,
be tried in vacation.
( * * *6) The board shall develop and implement
a uniform penalty policy that sets the minimum and maximum penalty for any given
violation of Sections 73-21-151 through 73-21-163. The board shall adhere to its
uniform penalty policy except in those cases where the board specifically finds,
by majority vote, that a penalty in excess of, or less than, the uniform penalty
is appropriate. That vote shall be reflected in the minutes of the board and shall
not be imposed unless it appears as having been adopted by the board.
SECTION 8. This act shall take effect and be in force from and after July 1, 2024.