N.Y. Comp. Codes R. & Regs. tit. 11 § 459.4

Current through Register Vol. 46, No. 53, December 31, 2024

Section 459.4 - Audit recoupment and fees

(a) A pharmacy benefit manager conducting either an in-person or remote audit of a pharmacy shall not:

(1) include dispensing fees in calculations of overpayments unless the claim is determined to not have been dispensed at all or to have been dispensed in error;

(2) assess a chargeback, recoupment, or other penalty against a pharmacy because a prescription is mailed or delivered at the request of a covered individual;

(3) recoup funds for clerical or record-keeping errors, including typographical errors, scriveners' errors, and computer errors on a required document or record unless a pattern of such errors exists, fraudulent activity in the billing is alleged or the error resulted in overpayment and such recoupment is limited to the amount of the overpayment;

(4) claim actual financial harm to the covered individual or health plan unless there is a direct relationship between the error and a quantifiable sum of money lost by the covered individual or health plan;

(5) collect any recoupments, chargebacks, or penalties until the audit and all appeals thereof are final, unless the individual or entity conducting the audit has a reasonable basis to believe the pharmacy is engaging or has engaged in fraudulent activity or other intentional or willful misrepresentation;

(6) recoup an amount in excess of the actual overpayment or overbilled amount; or

(7) use extrapolation in calculating recoupments, chargebacks, or penalties for audits, unless required by state or federal law.

(b)

(1) A pharmacy benefit manager shall not recoup by setoff any money for an overpayment or retroactive denial of a claim until the pharmacy has an opportunity of not less than 30 business days to review the pharmacy benefit manager's findings pursuant to section 459.3 of this Part and file any appeal thereof.

(2) If a pharmacy appeals a pharmacy benefit manager's finding of overpayment or retroactive denial, the pharmacy benefit manager may not recoup by setoff any money until after all appeals have been exhausted.

(3) Notwithstanding paragraphs (1) and (2) of this subdivision, a pharmacy benefit manager may withhold future payments before the date the final audit report has been delivered to the pharmacy if the identified discrepancy for all disputed claims in a preliminary audit report for an individual audit exceeds $25,000, provided, however, that a pharmacy benefit manager shall not withhold more than 10% of each monthly payment to the pharmacy until the final audit report is issued.

(c) A pharmacy benefit manager that contracts with an independent third party to conduct an audit shall not agree to compensate the independent third party based on a percentage of, or otherwise connected to, the amount of overpayments recovered.

(d) A pharmacy benefit manager shall not disclose information obtained during an audit except to the department or any other government agency, the pharmacy subject to the audit, or the health plan.

N.Y. Comp. Codes R. & Regs. Tit. 11 § 459.4

Adopted New York State Register November 27, 2024/Volume XLVI, Issue 48, eff. 11/27/2024