TITLE XXXVII
INSURANCE
Chapter 402-N
PHARMACY BENEFITS MANAGERS
Section 402-N:1
402-N:1 Definitions. –
In this chapter:
I. "Claims processing services" means the administrative services performed in connection with the processing and adjudicating of claims relating to pharmacist services that include:
(a) Receiving payments for pharmacist services.
(b) Making payments to pharmacists or pharmacies for pharmacist services.
II. "Commissioner" means the commissioner of the insurance department.
III. "Health carrier" means "health carrier" as defined in RSA 420-J:3, XXIII.
IV. "Health benefit plan" means "health benefit plan" as defined in RSA 420-J:3, XIX.
V. "Pharmacist" means an individual licensed as a pharmacist by the pharmacy board.
VI. "Pharmacist services" means products, goods, and services, or any combination of products, goods, and services, provided as a part of the practice of pharmacy.
VII. "Pharmacy" means the place licensed by the pharmacy board in which drugs, chemicals, medicines, prescriptions, and poisons are compounded, dispensed, or sold at retail.
VIII. (a) "Pharmacy benefits manager" means a person, business, or other entity, including a wholly or partially owned or controlled subsidiary of a pharmacy benefits manager, that, pursuant to a contract with a health carrier, manages the prescription drug coverage provided by the health carrier, including, but not limited to, providing claims processing services for prescription drugs, performing drug utilization review, processing drug prior authorization requests, adjudication of grievances or appeals related to prescription drug coverage, contracting with network pharmacies, and controlling the cost of covered prescription drugs.
(b) "Pharmacy benefits manager" shall not include any:
(1) Health care facility licensed in this state;
(2) Health care professional licensed in this state;
(3) Consultant who only provides advice as to the selection or performance of a pharmacy benefits manager;
(4) Service provided to the Centers for Medicare and Medicaid Services; or
(5) Health insurer licensed in this state if the health insurer or its subsidiary is providing pharmacy benefits management services exclusively to its own insureds.
IX. "Rebate" means a discount or price concession attributable to the utilization of a prescription drug that is paid by the pharmaceutical manufacturer of the drug directly to a pharmacy benefits manager or health carrier after the pharmacy benefits manager or health carrier processes a claim from a pharmacy for a prescription drug manufactured by such pharmaceutical manufacturer. "Rebate" shall not include bona fide service fees, administrative fees, or any other amount which does not qualify as a rebate under this paragraph.
Source. 2019, 320:2, eff. Jan. 1, 2020.
Section 402-N:2
402-N:2 Registration to do Business; Rulemaking; Penalties. –
I. A person or organization shall not establish or operate as a pharmacy benefits manager in this state for health benefit plans without registering with the insurance commissioner under this chapter.
II. The commissioner shall adopt rules pursuant to RSA 541-A relative to:
(a) Prescribing the application format for registration as a pharmacy benefits manager, including a requirement to submit the registrant's corporate charter, articles of incorporation, or other formation documents.
(b) Establishing application fees and renewal fees, not to exceed $500 per year.
(c) Delineating procedures for handling consumer complaints and coordinating with the department's consumer services unit, including supplying designated contact information to enable the department to reach the pharmacy benefits manager regarding consumer complaints.
III. If the commissioner finds after notice and hearing that any person has violated any provision of this chapter, or rules adopted pursuant to this chapter, the commissioner may order:
(a) For each separate violation, a penalty in the amount of $2,500.
(b) Revocation or suspension of the pharmacy benefits manager registration.
Source. 2019, 320:2, eff. Jan. 1, 2020.
Section 402-N:3
402-N:3 Provider Contract Standards for Pharmacy Benefit Managers. –
I. All contracts between a carrier or pharmacy benefit manager and a contracted pharmacy shall include:
(a) The sources used by the pharmacy benefit manager to calculate the drug product reimbursement paid for covered drugs available under the pharmacy health benefit plan administered by the carrier or pharmacy benefit manager.
(b) A process to appeal, investigate, and resolve disputes regarding the maximum allowable cost pricing. The process shall include the following provisions:
(1) A provision granting the contracted pharmacy or pharmacist at least 30 business days following the initial claim to file an appeal;
(2) A provision requiring the carrier or pharmacy benefit manager to investigate and resolve the appeal within 30 business days;
(3) A provision requiring that, if the appeal is denied, the carrier or pharmacy benefit manager shall:
(A) Provide the reason for the denial; and
(B) Identify the national drug code of a drug product that may be purchased by contracted pharmacies at a price at or below the maximum allowable cost; and
(4) A provision requiring that, if an appeal is granted, the carrier or pharmacy benefits manager shall within 30 business days after granting the appeal:
(A) Make the change in the maximum allowable cost; and
(B) Permit the challenging pharmacy or pharmacist to reverse and rebill the claim in question.
II. For every drug for which the pharmacy benefit manager establishes a maximum allowable cost to determine the drug product reimbursement, the pharmacy benefit manager shall:
(a) Include in the contract with the pharmacy information identifying the national drug pricing compendia or sources used to obtain the drug price data.
(b) Make available to a contracted pharmacy the actual maximum allowable cost for each drug.
(c) Review and make necessary adjustments to the maximum allowable cost for every drug for which the price has changed at least every 14 days.
III. [Repealed.]
Source. 2019, 320:2, eff. Jan. 1, 2020; 320:7, eff. June 30, 2020.
Section 402-N:4
402-N:4 Prescription Drugs. –
I. A pharmacy benefits manager or insurer shall require a contracted pharmacy to charge an enrollee or insured person the pharmacy's usual and customary price of filling the prescription or the contracted copayment, whichever is less.
II. Once it has settled a claim for filling a prescription for an enrollee or insured person and notified the pharmacy of the amount the pharmacy benefits manager or insurer shall pay to the pharmacy for that prescription, the pharmacy benefits manager or insurer shall not lower the amount to be paid to the pharmacy by the pharmacy benefits manager or the insurer for such settled claim; provided, however, that this paragraph shall not apply if the claim was submitted fraudulently or with inaccurate or misrepresented information.
Source. 2019, 320:2, eff. Jan. 1, 2020.
Section 402-N:4-a
402-N:4-a Prohibited Acts. –
A pharmacy benefit manager shall not, either directly or indirectly:
I. Prohibit an in-network retail pharmacy from:
(a) Mailing or delivering a prescription drug to an enrollee as an ancillary service of the in-network retail pharmacy provided that confirmation of delivery is obtained.
(b) Charging a shipping or handling surcharge to an enrollee who requests that the in-network retail pharmacy mail or deliver a prescription drug to the enrollee as an ancillary service provided the enrollee receives a disclosure from the in-network retail pharmacy regarding any surcharge to be charged to the patient for the delivery of a prescription drug, including that the surcharge may not be reimbursable by the plan sponsor or pharmacy benefit manager.
(c) Offering the ancillary services described in subparagraph I(a) to an enrollee.
II. Charge an enrollee who uses an in-network retail pharmacy that offers to mail or deliver a prescription drug to an enrollee as an ancillary service a surcharge for the delivery of a prescription drug or copayment that is higher than the surcharge or copayment the enrollee would pay if the enrollee used an in-network retail pharmacy that does not offer to mail or deliver a prescription drug to an enrollee as an ancillary service.
III. For purposes of this section, a retail pharmacy shall not include a "mail-order pharmacy" as defined in RSA 318:1, VII-b.
Source. 2021, 149:1, eff. Sept. 21, 2021.
Section 402-N:5
402-N:5 Complaints Relative to Pharmacy Benefit Managers. –
I. Consumers may file a complaint related to a registered pharmacy benefit manager pursuant to RSA 400-A:15-e.
II. The commissioner shall adopt rules, pursuant to RSA 541-A, to implement paragraph I. Such rules shall include procedures for addressing complaints, provisions for enforcement, the receipt of complaints referred to the insurance department under RSA 318:47-h, III(b), and for reporting to the board of pharmacy on the status of complaints referred.
Source. 2019, 320:2, eff. Jan. 1, 2020. 2021, 56:5, eff. July 24, 2021.
Section 402-N:6
402-N:6 Pharmacy Benefits Manager Reporting. –
I. Each pharmacy benefits manager shall submit an annual report to the commissioner containing a list of health benefit plans it administered, and the aggregate amount of all rebates it collected from pharmaceutical manufacturers that were attributable to patient utilization in the state of New Hampshire during the prior calendar year.
II. Information reported to the commissioner pursuant to this section shall be confidential and protected from disclosure under the commissioner's examination authority and shall not be considered a public record subject to disclosure under RSA 91-A. Based on this reporting, the commissioner shall make public aggregated data on the overall amount of rebates collected on behalf of covered persons in the state, but shall not release data that identifies a specific insurer or pharmacy benefit manager.
Source. 2019, 320:2, eff. Jan. 1, 2020.
Section 402-N:7
402-N:7 Authority to Examine and Directly Bill Pharmacy Benefits Managers for Certain Examinations. –
The commissioner may examine and directly bill a pharmacy benefits manager required to be registered under this chapter for the costs of any examination pursuant to RSA 400-A:37 as necessary to determine and enforce compliance with this chapter. In addition, if the commissioner finds through an investigation or examination that a carrier has not received information required under RSA 420-J:7-b, XI from a pharmacy benefit manager, the commissioner may require that the pharmacy benefit manager provide the required information, and the commissioner may investigate or examine and directly bill the pharmacy benefit manager for the cost of any portion of the examination or investigation pertaining to obtaining the required information.
Source. 2019, 320:2, eff. Jan. 1, 2020.
Section 402-N:8
402-N:8 Non-Exclusivity. –
Nothing in this chapter shall be interpreted to invalidate or render inapplicable any other provision of Title XXXVII that is otherwise applicable to an entity that qualifies as a pharmacy benefit manager under this chapter.
Source. 2019, 320:2, eff. Jan. 1, 2020.
Section 402-N:9
402-N:9 Severability. –
If any provision of this chapter or the application of this chapter to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provisions or application, and to this end, the provisions of this chapter are declared severable.
Source. 2019, 320:2, eff. Jan. 1, 2020.