003.22.24 Ark. Code R. 008

Current through Register Vol. 49, No. 10, October, 2024

Rule 003.22.24-008 - Emergency Rule 128: Fair and Reasonable Pharmacy Reimbursement

I.AUTHORITY

This Rule is issued by the Arkansas Insurance Commissioner ("Commissioner") under Ark. Code Ann. § 23-92-509(a)(2)(I), § 23-92-509(a)(2)(D) and § 23-92-509(b)(2)(A). Specifically, under the permissive rule authority of these code provisions, the Commissioner is authorized to adopt rules without limitation to implement the Arkansas Pharmacy Benefits Manager Licensure Act ("PBMLA") for compensation and pharmacy benefits manager network adequacy.

II.STATEMENT OF EMERGENCY

The Commissioner hereby finds under Ark. Code Ann. § 25-15-204(b)(l) that a public emergency exists to require changes to pharmacy reimbursement standards from health benefit plans in order to ensure reasonably sustainable network adequacy for pharmacy services in this State.

III.DEFINITIONS

Unless otherwise defined in this Section, the definitions in the PBMLA shall apply to the provisions in this Rule.

A. "Fair and reasonable cost to dispense" shall mean the Arkansas Insurance Commissioner's determination of an adequate price or amount for the dispensing of a drug by a pharmacy giving due regard for the cost factors of labor, supplies and other administrative costs of a pharmacy associated with the dispensing of a drug to a subscriber of a health benefit plan.

B. "Subscriber" shall mean an insured, enrollee or certificate holder of a health benefit plan as defined under Ark. Code Ann. § 23-92-503(2).

IV.APPLICABILTY

This Rule applies to all health benefit plans as defined in Ark. Code Ann. § 23-92503(2) and healthcare payors as defined in Ark. Code Ann. § 23-92-503(3).

V.FAIR AND REASONABLE REIMBURSEMENTS

A. Pursuant to Ark. Code Ann. § 23-92-506(a)(l), the Commissioner may review and approve the compensation program of a pharmacy benefits manager ("PBM") from a health benefit plan to ensure that the reimbursement for pharmacist services paid to a pharmacist or pharmacy is fair and reasonable to provide an adequate pharmacy benefits manager network for a health benefit plan. The provisions of this Rule are specifically issued related to cost processes, and not plan benefit design, to help ensure the subject of network adequacy or reasonably sustainable network adequacy of pharmacy services for health benefit plans.

B. The Commissioner finds that current pharmacy reimbursement minimums under the PBMLA, or payments within a close range to minimums of National Average Drug Acquisition Cost ("NADAC"), or maximum allowable cost ("MAC"), that do not also include a reasonable cost to dispense to pharmacies impairs the sustainability of network adequacy for pharmacy services for health benefit plans.

C. To ensure an adequate network of pharmacy services for a health benefit plan, or to ensure a reasonably sustainable adequate network for such services, a health benefit plan, through its pharmacy benefits plan or program, shall include a fair and reasonable cost to dispense to pharmacies in its administration of drug benefits under its health benefit plan. A fair and reasonable cost to dispense shall be calculated commiserate with the time, labor, supplies, and other administrative costs associated with the dispensing of the drug by the pharmacy. This cost to dispense shall be uniform or equally applied to all pharmacies servicing the health benefit plan. No health insurer, and no pharmacy benefits manager ("PBM") administrating drug benefits for health benefit plans shall recoup or recover any increased costs to dispense from a subscriber at the point of sale through increased cost-sharing requirement ratios or percentages ("co-insurance, co-payment, or deductibles") on the health benefits plan member. For the first calendar year for 2025, every health insurer shall file with the Commissioner, no later than by November 30, 2024, a written report describing each healthcare payor's calculation amount, and methodology for such calculation, of the cost to dispense as required by this Rule. This requirement shall apply to plan year 2025 and thereafter, for each succeeding plan year after 2025, a health insurer shall submit such report on or before March 1 to apply for that next plan year. All data and materials submitted for such reports shall be deemed confidential, proprietary and not subject to the Arkansas Freedom of Information Act.

D. The Commissioner shall be authorized to review, approve or deny such cost to dispense calculation, in consultation with the actuary for the Arkansas Insurance Department ("AID"). The Commissioner shall make his or her decision to approve or deny such cost calculation in writing within twenty (20) working days of receipt of such report from a healthcare payor and notify the submitting healthcare payor of his or her decision in writing within twenty (20) working days from receipt of such report. The Commissioner shall issue a bulletin more specifically addressing the procedures, timing, objection procedures, format and other information requirements required for such submissions as required under this Section of this Rule.

E. The Commissioner requests that the health benefit plans and healthcare payors strive to reduce any additional costs, associated with the costs to dispense as required by this Rule, by applying all unused brand name rebates to such costs, remaining after compliance with Act 333 of 2023 under the Healthcare Insurer Share the Savings Act, codified at Ark. Code Ann. § 23-79-2501 et seq., and the Pharmacy Benefits Manager Share the Savings Act, codified at Ark. Code Ann. § 23-92-704 et seq.

VI.VIOLATIONS

Violations of any provision of this Rule shall be subject to the fines or penalties under Ark. Code Ann. § 23-92-508.

VII.EFFECTIVE DATE

This Rule shall be effective upon approval by the Arkansas Legislative Council and thereafter remain in effect for 120 days unless earlier replaced by a permanent Rule.

003.22.24 Ark. Code R. 008

Adopted by Arkansas Register Volume 49, Number 10, Effective 9/23/2024 (EMERGENCY)