1     
PHARMACY BENEFIT AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Paul Ray

5     
Senate Sponsor: Evan J. Vickers

6     Cosponsors:
7     Cheryl K. Acton
8     Kyle R. Andersen
9     Patrice M. Arent
10     Melissa G. Ballard
11     Brady Brammer
12     Scott H. Chew
13     Steve R. Christiansen
14     Kay J. Christofferson
15     Kim F. Coleman
16     Jennifer Dailey-Provost
17     Brad M. Daw
18     Susan Duckworth
19     Steve Eliason
20     Joel Ferry
Francis D. Gibson
Stephen G. Handy
Suzanne Harrison
Jon Hawkins
Sandra Hollins
Eric K. Hutchings
Dan N. Johnson
Karianne Lisonbee
Kelly B. Miles
Merrill F. Nelson
Lee B. Perry
Val L. Peterson
Candice B. Pierucci
Stephanie Pitcher
Val K. Potter
Marie H. Poulson
Tim Quinn
Mike Schultz
Lawanna Shurtliff
Robert M. Spendlove
Andrew Stoddard
Keven J. Stratton
Mark A. Strong
Norman K. Thurston
Raymond P. Ward
Christine F. Watkins
Elizabeth Weight
Brad R. Wilson
Mike Winder

21     

22     LONG TITLE
23     General Description:
24          This bill amends the Insurance Code.
25     Highlighted Provisions:
26          This bill:
27          ▸     renames the Pharmacy Benefit Manager Licensing Act as the Pharmacy Benefits

28     Act;
29          ▸     creates and amends definitions;
30          ▸     amends pharmacy benefit manager reporting provisions;
31          ▸     prohibits a pharmacy benefit manager from:
32               •     prohibiting or penalizing a pharmacist's disclosure of certain information
33     regarding a prescription device;
34               •     requiring an insured customer from paying more than a specified amount for a
35     prescription device;
36               •     reducing a pharmacy's total compensation for the sale of a drug, device, or other
37     product or service unless the pharmacy benefit manager provides the pharmacy
38     with at least 30 days notice;
39          ▸     amends provisions related to a pharmacy benefit manager denying or reducing a
40     reimbursement to a pharmacy or a pharmacist after the adjudication of a claim;
41          ▸     prohibits a pharmacy benefit manager from:
42               •     reimbursing a network pharmacy in the aggregate less than a pharmacy benefit
43     manager affiliate in the aggregate in the same network;
44               •     engaging in certain actions related to a pharmacy that mails or delivers a
45     prescription drug to an enrollee as an ancillary service; and
46               •     contracting with a health insurer in certain instances unless the pharmacy benefit
47     manager agrees to regularly report to the insurer detailed, claim-level
48     information regarding pharmaceutical manufacturer rebates received by the
49     pharmacy benefit manager in connection with the contract;
50          ▸     amends provisions related to out-of-state mail service pharmacies;
51          ▸     amends provisions related to a prescription drug or device that is not readily
52     available in all pharmacies;
53          ▸     requires manufacturers and insurers to report certain information on the cost of
54     prescription drugs to the Insurance Department;
55          ▸     requires the Insurance Department to publish prescription drug information reported

56     to the department;
57          ▸     requires the Insurance Department to make rules, as necessary, to promote
58     comparability of information reported to the department; and
59          ▸     makes certain records a protected record under the Government Records Access and
60     Management Act.
61     Money Appropriated in this Bill:
62          None
63     Other Special Clauses:
64          This bill provides a coordination clause.
65     Utah Code Sections Affected:
66     AMENDS:
67          31A-46-101, as enacted by Laws of Utah 2019, Chapter 241
68          31A-46-102, as enacted by Laws of Utah 2019, Chapter 241
69          31A-46-301, as enacted by Laws of Utah 2019, Chapter 241
70          31A-46-302, as renumbered and amended by Laws of Utah 2019, Chapter 241
71          31A-46-303, as renumbered and amended by Laws of Utah 2019, Chapter 241
72          31A-46-304, as enacted by Laws of Utah 2019, Chapter 241
73          63G-2-305, as last amended by Laws of Utah 2019, Chapters 128, 193, 244, and 277
74     ENACTS:
75          31A-46-305, Utah Code Annotated 1953
76          31A-46-306, Utah Code Annotated 1953
77          31A-46-307, Utah Code Annotated 1953
78          31A-47-101, Utah Code Annotated 1953
79          31A-47-102, Utah Code Annotated 1953
80          31A-47-103, Utah Code Annotated 1953
81     RENUMBERS AND AMENDS:
82          31A-46-308, (Renumbered from 58-17b-619, as enacted by Laws of Utah 2004,
83     Chapter 280)

84     Utah Code Sections Affected by Coordination Clause:
85          31A-46-302, as renumbered and amended by Laws of Utah 2019, Chapter 241
86     

87     Be it enacted by the Legislature of the state of Utah:
88          Section 1. Section 31A-46-101 is amended to read:
89     
CHAPTER 46. PHARMACY BENEFITS ACT

90          31A-46-101. Title.
91          This chapter is known as [the] "Pharmacy [Benefit Manager Licensing Act] Benefits
92     Act."
93          Section 2. Section 31A-46-102 is amended to read:
94          31A-46-102. Definitions.
95          As used in this chapter:
96          (1) "Administrative fee" means any payment, other than a rebate, that a pharmaceutical
97     manufacturer makes directly or indirectly to a pharmacy benefit manager.
98          (2) "Contracting insurer" means an insurer [as defined in Section 31A-22-636] with
99     whom a pharmacy benefit manager contracts to provide a pharmacy benefit management
100     service.
101          (3) "Device" means the same as that term is defined in Section 58-17b-102.
102          (4) "Dispense" means the same as that term is defined in Section 58-17b-102.
103          (5) "Drug" means the same as that term is defined in Section 58-17b-102.
104          (6) "Insurer" means the same as that term is defined in Section 31A-22-636.
105          (7) "Patient counseling" means the same as that term is defined in Section 58-17b-102.
106          (8) "Pharmaceutical facility" means the same as that term is defined in Section
107     58-17b-102.
108          (9) "Pharmaceutical manufacturer" means a pharmaceutical facility that manufactures
109     prescription drugs.
110          [(3)] (10) "Pharmacist" means the same as that term is defined in Section 58-17b-102.
111          [(4)] (11) "Pharmacy" means the same as that term is defined in Section 58-17b-102.

112          [(5)] (12) "Pharmacy benefits management service" means any of the following
113     services provided to a health benefit plan, or to a participant of a health benefit plan:
114          (a) negotiating the amount to be paid by a health benefit plan for a prescription drug; or
115          (b) administering or managing a prescription drug benefit provided by the health
116     benefit plan for the benefit of a participant of the health benefit plan, including administering
117     or managing:
118          (i) [a] mail service pharmacy;
119          (ii) a specialty pharmacy;
120          (iii) claims processing;
121          (iv) payment of a claim;
122          (v) retail network management;
123          (vi) clinical formulary development;
124          (vii) clinical formulary management services;
125          (viii) rebate contracting;
126          (ix) rebate administration;
127          (x) a participant compliance program;
128          (xi) a therapeutic intervention program;
129          (xii) a disease management program; or
130          (xiii) a service that is similar to, or related to, a service described in Subsection [(5)]
131     (12)(a) or [(5)] (12)(b)(i) through (xii).
132          [(6)] (13) "Pharmacy benefit manager" means a person licensed under this chapter to
133     provide a pharmacy benefits management service.
134          [(7)] (14) "Pharmacy service" means a product, good, or service provided to an
135     individual by a pharmacy or pharmacist.
136          (15) "Prescription device" means the same as that term is defined in Section
137     58-17b-102.
138          (16) "Prescription drug" means the same as that term is defined in Section 58-17b-102.
139          [(8)] (17) (a) "Rebate" means a refund, discount, or other price concession that is paid

140     by a pharmaceutical manufacturer to a pharmacy benefit manager based on a prescription
141     drug's utilization or effectiveness.
142          (b) "Rebate" does not include an administrative fee.
143          (18) "Retail pharmacy" means the same as that term is defined in Section 58-17b-102.
144          (19) "Wholesale acquisition cost" means the same as that term is defined in 42 U.S.C.
145     Sec. 1395w-3a.
146          Section 3. Section 31A-46-301 is amended to read:
147          31A-46-301. Reporting requirements.
148          (1) Before April 1 of each year, a pharmacy benefit manager operating in the state shall
149     report to the department, for the previous calendar year:
150          (a) any insurer, pharmacy, or pharmacist in the state with which the pharmacy benefit
151     manager had a contract;
152          (b) the total value, in the aggregate, of all rebates and administrative fees that are
153     attributable to enrollees of a contracting insurer; and
154          (c) if applicable, the percentage of aggregate rebates that the pharmacy benefit manager
155     retained under the pharmacy benefit manager's agreement to provide pharmacy benefits
156     management services to a contracting insurer.
157          (2) Records submitted to the commissioner under Subsections (1)(b) and (c) are a
158     protected record under Title 63G, Chapter 2, Government Records Access and Management
159     Act.
160          (3) (a) The department shall publish the information provided by a pharmacy benefit
161     manager under Subsection (1)(c) in the annual report described in Section 31A-2-201.2.
162          (b) The department may not publish information submitted under Subsection (1)(b) or
163     (c) in a manner that:
164          (i) makes a specific submission from a contracting insurer or pharmacy benefit
165     manager identifiable; or
166          (ii) is likely to disclose information that is a trade secret as defined in Section 13-24-2.
167          (c) At least 30 days before the day on which the department publishes the data, the

168     department shall provide a pharmacy benefit manager that submitted data under Subsection
169     (1)(b) or (c) with:
170          (i) a general description of the data that will be published by the department;
171          (ii) an opportunity to submit to the department, within a reasonable period of time and
172     in a manner established by the department by rule made in accordance with Title 63G, Chapter
173     3, Utah Administrative Rulemaking Act:
174          (A) any correction of errors, with supporting evidence and comments; and
175          (B) information that demonstrates that the publication of the data will violate
176     Subsection (3)(b), with supporting evidence and comments.
177          Section 4. Section 31A-46-302 is amended to read:
178          31A-46-302. Direct or indirect remuneration by pharmacy benefit managers --
179     Pharmacist disclosures -- Limit on customer payment for prescription drugs and
180     prescription devices -- 30-day notice required to reduce total compensation.
181          (1) As used in this section:
182          (a) "Allowable claim amount" means the amount paid by an insurer under the
183     customer's health benefit plan.
184          (b) "Cost share" means the amount paid by an insured customer under the customer's
185     health benefit plan.
186          (c) "Direct or indirect remuneration" means any adjustment in the total compensation:
187          (i) received by a pharmacy from a pharmacy benefit manager for the sale of a drug,
188     device, or other product or service; and
189          (ii) that is determined after the sale of the product or service.
190          (d) "Health benefit plan" means the same as that term is defined in Section 31A-1-301.
191          (e) "Pharmacy reimbursement" means the amount paid to a pharmacy by a pharmacy
192     benefit manager for a dispensed prescription drug or prescription device.
193          (f) "Pharmacy services administration organization" means an entity that contracts with
194     a pharmacy to assist with third-party payer interactions and administrative services related to
195     third-party payer interactions, including:

196          (i) contracting with a pharmacy benefit manager on behalf of the pharmacy; and
197          (ii) managing a pharmacy's claims payments from third-party payers.
198          (g) "Pharmacy service entity" means:
199          (i) a pharmacy services administration organization; or
200          (ii) a pharmacy benefit manager.
201          (h) (i) "Reimbursement report" means a report on the adjustment in total compensation
202     for a claim.
203          (ii) "Reimbursement report" does not include a report on adjustments made pursuant to
204     a pharmacy audit or reprocessing.
205          (i) "Sale" means a prescription drug or prescription device claim covered by a health
206     benefit plan.
207          (2) If a pharmacy service entity engages in direct or indirect remuneration with a
208     pharmacy, the pharmacy service entity shall make a reimbursement report available to the
209     pharmacy upon the pharmacy's request.
210          (3) For the reimbursement report described in Subsection (2), the pharmacy service
211     entity shall:
212          (a) include the adjusted compensation amount related to a claim and the reason for the
213     adjusted compensation; and
214          (b) provide the reimbursement report:
215          (i) in accordance with the contract between the pharmacy and the pharmacy service
216     entity;
217          (ii) in an electronic format that is easily accessible; and
218          (iii) within 120 days after the day on which the pharmacy benefit manager receives a
219     report of a sale of a product or service by the pharmacy.
220          (4) A pharmacy service entity shall, upon a pharmacy's request, provide the pharmacy
221     with:
222          (a) the reasons for any adjustments contained in a reimbursement report; and
223          (b) an explanation of the reasons provided in Subsection (4)(a).

224          (5) (a) A pharmacy benefit manager may not prohibit or penalize the disclosure by a
225     pharmacist of:
226          (i) an insured customer's cost share for a covered prescription drug or prescription
227     device;
228          (ii) the availability of any therapeutically equivalent alternative medications or devices;
229     or
230          (iii) alternative methods of paying for the prescription medication or prescription
231     device, including paying the cash price, that are less expensive than the cost share of the
232     prescription drug.
233          (b) Penalties that are prohibited under Subsection (5)(a) include increased utilization
234     review, reduced payments, and other financial disincentives.
235          (6) A pharmacy benefit manager may not require an insured customer to pay, for a
236     covered prescription drug or prescription device, more than the lesser of:
237          (a) the applicable cost share of the prescription drug or prescription device being
238     dispensed;
239          (b) the applicable allowable claim amount of the prescription drug or prescription
240     device being dispensed;
241          (c) the applicable pharmacy reimbursement of the prescription drug or prescription
242     device being dispensed; or
243          (d) the retail price of the prescription drug or prescription device without prescription
244     drug coverage.
245          (7) For a contract entered into or renewed on or after May 12, 2020, a pharmacy benefit
246     manager may not engage in direct or indirect remuneration that results in a reduction in total
247     compensation received by a pharmacy from the pharmacy benefit manager for the sale of a
248     drug, device, or other product or service unless the pharmacy benefit manager provides the
249     pharmacy with at least 30 days notice of the direct or indirect remuneration.
250          Section 5. Section 31A-46-303 is amended to read:
251          31A-46-303. Insurer and pharmacy benefit management services -- Registration

252     -- Maximum allowable cost -- Audit restrictions.
253          (1) As used in this section:
254          (a) "Maximum allowable cost" means:
255          (i) a maximum reimbursement amount for a group of pharmaceutically and
256     therapeutically equivalent drugs; or
257          (ii) any similar reimbursement amount that is used by a pharmacy benefit manager to
258     reimburse pharmacies for multiple source drugs.
259          (b) "Obsolete" means a product that may be listed in national drug pricing compendia
260     but is no longer available to be dispensed based on the expiration date of the last lot
261     manufactured.
262          (c) " Pharmacy benefit manager" means a person or entity that provides pharmacy
263     benefit management services as defined in Section 49-20-502 on behalf of an insurer [as
264     defined in Subsection 31A-22-636(1)].
265          (2) An insurer and an insurer's pharmacy benefit manager is subject to the pharmacy
266     audit provisions of Section 58-17b-622.
267          (3) A pharmacy benefit manager shall not use maximum allowable cost as a basis for
268     reimbursement to a pharmacy unless:
269          (a) the drug is listed as "A" or "B" rated in the most recent version of the United States
270     Food and Drug Administration's approved drug products with therapeutic equivalent
271     evaluations, also known as the "Orange Book," or has an "NR" or "NA" rating or similar rating
272     by a nationally recognized reference; and
273          (b) the drug is:
274          (i) generally available for purchase in this state from a national or regional wholesaler;
275     and
276          (ii) not obsolete.
277          (4) The maximum allowable cost may be determined using comparable and current
278     data on drug prices obtained from multiple nationally recognized, comprehensive data sources,
279     including wholesalers, drug file vendors, and pharmaceutical manufacturers for drugs that are

280     available for purchase by pharmacies in the state.
281          (5) For every drug for which the pharmacy benefit manager uses maximum allowable
282     cost to reimburse a contracted pharmacy, the pharmacy benefit manager shall:
283          (a) include in the contract with the pharmacy information identifying the national drug
284     pricing compendia and other data sources used to obtain the drug price data;
285          (b) review and make necessary adjustments to the maximum allowable cost, using the
286     most recent data sources identified in Subsection (5)(a), at least once per week;
287          (c) provide a process for the contracted pharmacy to appeal the maximum allowable
288     cost in accordance with Subsection (6); and
289          (d) include in each contract with a contracted pharmacy a process to obtain an update
290     to the pharmacy product pricing files used to reimburse the pharmacy in a format that is readily
291     available and accessible.
292          (6) (a) The right to appeal in Subsection (5)(c) shall be:
293          (i) limited to 21 days following the initial claim adjudication; and
294          (ii) investigated and resolved by the pharmacy benefit manager within 14 business
295     days.
296          (b) If an appeal is denied, the pharmacy benefit manager shall provide the contracted
297     pharmacy with the reason for the denial and the identification of the national drug code of the
298     drug that may be purchased by the pharmacy at a price at or below the price determined by the
299     pharmacy benefit manager.
300          (7) The contract with each pharmacy shall contain a dispute resolution mechanism in
301     the event either party breaches the terms or conditions of the contract.
302          (8) This section does not apply to a pharmacy benefit manager when the pharmacy
303     benefit manager is providing pharmacy benefit management services on behalf of the state
304     Medicaid program.
305          Section 6. Section 31A-46-304 is amended to read:
306          31A-46-304. Claims practices.
307          (1) A pharmacy benefit manager shall permit a pharmacy to collect the amount of a

308     customer's cost share from any source.
309          (2) A pharmacy benefit manager may not deny or reduce a reimbursement to a
310     pharmacy or a pharmacist after the adjudication of the claim, unless:
311          (a) the pharmacy or pharmacist submitted the original claim fraudulently;
312          (b) the original reimbursement was incorrect because:
313          (i) the pharmacy or pharmacist had already been paid for the pharmacy service; or
314          (ii) an unintentional error resulted in an incorrect reimbursement; or
315          (c) the pharmacy service was not rendered by the pharmacy or pharmacist.
316          (3) Subsection (2) does not apply if:
317          (a) [an investigative audit] any form of an investigation or audit of pharmacy records
318     for fraud, waste, abuse, or other intentional misrepresentation indicates that the pharmacy or
319     pharmacist engaged in criminal wrongdoing, fraud, or other intentional misrepresentation; or
320          (b) the reimbursement is reduced as the result of the reconciliation of a reimbursement
321     amount under a performance contract if:
322          (i) the performance contract lays out clear performance standards under which the
323     reimbursement for a specific drug may be increased or decreased; and
324          (ii) the agreement between the pharmacy benefit manager and the pharmacy or
325     pharmacist explicitly states, in a separate document that is signed by the pharmacy benefit
326     manager and the pharmacy or pharmacist, that the provisions of Subsection (2) do not apply.
327          Section 7. Section 31A-46-305 is enacted to read:
328          31A-46-305. Pharmacy reimbursement.
329          A pharmacy benefit manager shall reimburse a network pharmacy, in the aggregate, in
330     an amount no less than the amount that the pharmacy benefit manager reimburses an affiliate of
331     the pharmacy benefit manager in the same network, in the aggregate, for providing the same or
332     equivalent pharmacy service.
333          Section 8. Section 31A-46-306 is enacted to read:
334          31A-46-306. Mailing or delivering prescription drugs.
335          (1) A pharmacy benefit manager or an insurer may not, directly or indirectly:

336          (a) prohibit an in-network retail pharmacy from:
337          (i) mailing or delivering a prescription drug to an enrollee as an ancillary service of the
338     in-network retail pharmacy;
339          (ii) charging a shipping or handling fee to an enrollee who requests that the in-network
340     retail pharmacy mail or deliver a prescription drug to the enrollee, as an ancillary service; or
341          (iii) offering or soliciting the ancillary services described in Subsection (1)(a)(i) to an
342     enrollee; or
343          (b) charge an enrollee who uses an in-network retail pharmacy that offers to mail or
344     deliver a prescription drug to an enrollee as an ancillary service a fee or copayment that is
345     higher than the fee or copayment the enrollee would pay if the enrollee used an in-network
346     retail pharmacy that does not offer to mail or deliver a prescription drug to an enrollee as an
347     ancillary service.
348          Section 9. Section 31A-46-307 is enacted to read:
349          31A-46-307. Pharmacy benefit manager reporting.
350          (1) A pharmacy benefit manager may not enter into or renew a contract with an insurer
351     on or after January 1, 2021, to administer or manage rebate contracting or rebate administration
352     unless the pharmacy benefit manager agrees to regularly report to the insurer information
353     regarding pharmaceutical manufacturer rebates received by the pharmacy benefit manager
354     under the contract.
355          (2) The quality and type of information required under Subsection (1) shall be detailed,
356     claims level information unless the pharmacy benefit manager and insurer agree to waive this
357     requirement in a separate written agreement.
358          Section 10. Section 31A-46-308, which is renumbered from Section 58-17b-619 is
359     renumbered and amended to read:
360          [58-17b-619].      31A-46-308. Out-of-state mail service pharmacies -- Drugs
361     not readily available in all pharmacies.
362          (1) As used in this section, "out-of-state mail service pharmacy" means the same as that
363     term is defined in Section 58-17b-102.

364          [(1) Any] (2) Except as provided in Subsection (3), a third party payor [for] of
365     pharmaceutical services within the state, or its agent or contractor, may not require [any] a
366     pharmacy patient to obtain prescription drug benefits from [a specific] one or more out-of-state
367     [pharmacy] mail service pharmacies as a condition of obtaining third party payment
368     prescription drug benefit coverage as defined in rule.
369          [(2) (a) This section does not prohibit any third party payor of pharmaceutical services,
370     who provides for reimbursement to the pharmacy patient or payment on his behalf, from
371     exercising the right to limit the amount reimbursed for the cost of prescription drugs based
372     upon the cost of identical prescription drugs available through a designated out-of-state
373     pharmacy.]
374          [(b) Notwithstanding Subsection (2)(a), any third party payor of pharmaceutical
375     services may restrict the type of outlet where a patient may obtain certain prescriptive drugs
376     and devices, such as injectable medications, that are not readily available in all pharmacies.
377     The payor may also restrict access to no more than one mail-order pharmacy.]
378          [(3) Each third party payor of pharmaceutical services shall identify as a part of the
379     third party agreement or contract the designated out-of-state pharmacy which shall be used as
380     the base line comparison.]
381          (3) For a prescription drug or device that is not readily available in all pharmacies,
382     including an injectable medication, a third party payor of pharmaceutical services may require a
383     pharmacy patient to obtain prescription drug benefits from certain pharmacies, including one or
384     more out-of-state mail service pharmacies.
385          (4) (a) A violation of this section is a class A misdemeanor.
386          (b) Each violation of this section is a separate offense.
387          Section 11. Section 31A-47-101 is enacted to read:
388     
CHAPTER 47. PRESCRIPTION DRUG PRICE TRANSPARENCY ACT

389          31A-47-101. Title.
390          This chapter is known as "Prescription Drug Price Transparency Act."
391          Section 12. Section 31A-47-102 is enacted to read:

392          31A-47-102. Definitions.
393          As used in this chapter:
394          (1) "Drug" means a prescription drug, as defined in Section 58-17b-102.
395          (2) "Insurer" means the same as that term is defined in Section 31A-22-634.
396          (3) "Manufacturer" means a person that is engaged in the manufacturing of a drug that
397     is available for purchase by residents of the state.
398          (4) "Rebate" means the same as that term is defined in Section 31A-46-102.
399          (5) "Wholesale acquisition cost" means the same as that term is defined in 42 U.S.C.
400     Sec. 1395w-3a.
401          Section 13. Section 31A-47-103 is enacted to read:
402          31A-47-103. Manufacturer reports -- Insurer report -- Publication by department.
403          (1) (a) A manufacturer of a drug shall report to the department the information
404     described in Subsection (1)(b) no more than 30 days after the day on which an increase to the
405     wholesale acquisition cost of the drug results in an increase to the wholesale acquisition cost of
406     the drug of:
407          (i) greater than 16% over the preceding two calendar years; or
408          (ii) greater than 10% over the preceding calendar year.
409          (b) The manufacturer shall report:
410          (i) (A) the name of the drug;
411          (B) the dosage form of the drug; and
412          (C) the strength of the drug;
413          (ii) whether the drug is a brand name drug or a generic drug;
414          (iii) the effective date of the increase in the wholesale acquisition cost of the drug;
415          (iv) a written description, suitable for public release, of the factors that led to the
416     increase in the wholesale acquisition cost of the drug and the significance of each factor;
417          (v) the manufacturer's aggregate company-wide research and development costs for the
418     most recent year for which final audit data is available;
419          (vi) the name of each of the manufacturer's drugs approved by the United States Food

420     and Drug Administration during the preceding three calendar years; and
421          (vii) the names of drugs manufactured by the manufacturer that lost patent exclusivity
422     in the United States during the preceding three calendar years.
423          (c) Subsection (1)(a) applies only to a drug with a wholesale acquisition cost of at least
424     $100 for a 30-day supply before the effective date of the increase in the wholesale acquisition
425     cost of the drug.
426          (d) A manufacturer's obligations under this Subsection (1) are fully satisfied by
427     submission of information and data that a manufacturer includes in the manufacturer's annual
428     consolidated report on Securities and Exchange Commission Form 10-K or any other public
429     disclosure.
430          (e) The department shall consult with representatives of manufacturers to establish a
431     single, standardized format for reporting information under this section that minimizes the
432     administrative burden of reporting for manufacturers and the state.
433          (f) Information provided to the department under Subsection (1)(b) may not be released
434     in a manner that:
435          (i) would allow for the identification of an individual drug, therapeutic class of drugs,
436     or manufacturer; or
437          (ii) is likely to compromise the financial, competitive, or proprietary nature of the
438     information.
439          (2) Before August 1 of each year, an insurer shall report to the department in aggregate
440     the following information for the preceding plan year for health benefit plans offered by the
441     insurer:
442          (a) for the 25 drugs for which spending by the insurer was the greatest, after adjusting
443     for rebates:
444          (i) the name of the drug;
445          (ii) the dosage form of the drug; and
446          (iii) the strength of the drug;
447          (b) the percentage increase over the previous year in net spending for all drugs, after

448     adjusting for rebates; and
449          (c) the percentage of the increase in premiums over the previous year attributable to all
450     drugs; and
451          (d) the percentage of the increase in premiums over the previous year attributable to
452     specialty drugs.
453          (3) The department shall publish on the department's website:
454          (a) no later than 60 days after receiving the information, information reported to the
455     department under Subsection (1); and
456          (b) no later than November 1 of each year, information reported to the department
457     under Subsection (2).
458          (4) The department may not publish information under Subsection (3)(b) in a manner
459     that allows the identity of an insurer to be determined.
460          (5) The department shall make rules, as necessary, in accordance with Title 63G,
461     Chapter 3, Utah Administrative Rulemaking Act, to promote comparability of information
462     reported to the department under this chapter.
463          Section 14. Section 63G-2-305 is amended to read:
464          63G-2-305. Protected records.
465          The following records are protected if properly classified by a governmental entity:
466          (1) trade secrets as defined in Section 13-24-2 if the person submitting the trade secret
467     has provided the governmental entity with the information specified in Section 63G-2-309;
468          (2) commercial information or nonindividual financial information obtained from a
469     person if:
470          (a) disclosure of the information could reasonably be expected to result in unfair
471     competitive injury to the person submitting the information or would impair the ability of the
472     governmental entity to obtain necessary information in the future;
473          (b) the person submitting the information has a greater interest in prohibiting access
474     than the public in obtaining access; and
475          (c) the person submitting the information has provided the governmental entity with

476     the information specified in Section 63G-2-309;
477          (3) commercial or financial information acquired or prepared by a governmental entity
478     to the extent that disclosure would lead to financial speculations in currencies, securities, or
479     commodities that will interfere with a planned transaction by the governmental entity or cause
480     substantial financial injury to the governmental entity or state economy;
481          (4) records, the disclosure of which could cause commercial injury to, or confer a
482     competitive advantage upon a potential or actual competitor of, a commercial project entity as
483     defined in Subsection 11-13-103(4);
484          (5) test questions and answers to be used in future license, certification, registration,
485     employment, or academic examinations;
486          (6) records, the disclosure of which would impair governmental procurement
487     proceedings or give an unfair advantage to any person proposing to enter into a contract or
488     agreement with a governmental entity, except, subject to Subsections (1) and (2), that this
489     Subsection (6) does not restrict the right of a person to have access to, after the contract or
490     grant has been awarded and signed by all parties:
491          (a) a bid, proposal, application, or other information submitted to or by a governmental
492     entity in response to:
493          (i) an invitation for bids;
494          (ii) a request for proposals;
495          (iii) a request for quotes;
496          (iv) a grant; or
497          (v) other similar document; or
498          (b) an unsolicited proposal, as defined in Section 63G-6a-712;
499          (7) information submitted to or by a governmental entity in response to a request for
500     information, except, subject to Subsections (1) and (2), that this Subsection (7) does not restrict
501     the right of a person to have access to the information, after:
502          (a) a contract directly relating to the subject of the request for information has been
503     awarded and signed by all parties; or

504          (b) (i) a final determination is made not to enter into a contract that relates to the
505     subject of the request for information; and
506          (ii) at least two years have passed after the day on which the request for information is
507     issued;
508          (8) records that would identify real property or the appraisal or estimated value of real
509     or personal property, including intellectual property, under consideration for public acquisition
510     before any rights to the property are acquired unless:
511          (a) public interest in obtaining access to the information is greater than or equal to the
512     governmental entity's need to acquire the property on the best terms possible;
513          (b) the information has already been disclosed to persons not employed by or under a
514     duty of confidentiality to the entity;
515          (c) in the case of records that would identify property, potential sellers of the described
516     property have already learned of the governmental entity's plans to acquire the property;
517          (d) in the case of records that would identify the appraisal or estimated value of
518     property, the potential sellers have already learned of the governmental entity's estimated value
519     of the property; or
520          (e) the property under consideration for public acquisition is a single family residence
521     and the governmental entity seeking to acquire the property has initiated negotiations to acquire
522     the property as required under Section 78B-6-505;
523          (9) records prepared in contemplation of sale, exchange, lease, rental, or other
524     compensated transaction of real or personal property including intellectual property, which, if
525     disclosed prior to completion of the transaction, would reveal the appraisal or estimated value
526     of the subject property, unless:
527          (a) the public interest in access is greater than or equal to the interests in restricting
528     access, including the governmental entity's interest in maximizing the financial benefit of the
529     transaction; or
530          (b) when prepared by or on behalf of a governmental entity, appraisals or estimates of
531     the value of the subject property have already been disclosed to persons not employed by or

532     under a duty of confidentiality to the entity;
533          (10) records created or maintained for civil, criminal, or administrative enforcement
534     purposes or audit purposes, or for discipline, licensing, certification, or registration purposes, if
535     release of the records:
536          (a) reasonably could be expected to interfere with investigations undertaken for
537     enforcement, discipline, licensing, certification, or registration purposes;
538          (b) reasonably could be expected to interfere with audits, disciplinary, or enforcement
539     proceedings;
540          (c) would create a danger of depriving a person of a right to a fair trial or impartial
541     hearing;
542          (d) reasonably could be expected to disclose the identity of a source who is not
543     generally known outside of government and, in the case of a record compiled in the course of
544     an investigation, disclose information furnished by a source not generally known outside of
545     government if disclosure would compromise the source; or
546          (e) reasonably could be expected to disclose investigative or audit techniques,
547     procedures, policies, or orders not generally known outside of government if disclosure would
548     interfere with enforcement or audit efforts;
549          (11) records the disclosure of which would jeopardize the life or safety of an
550     individual;
551          (12) records the disclosure of which would jeopardize the security of governmental
552     property, governmental programs, or governmental recordkeeping systems from damage, theft,
553     or other appropriation or use contrary to law or public policy;
554          (13) records that, if disclosed, would jeopardize the security or safety of a correctional
555     facility, or records relating to incarceration, treatment, probation, or parole, that would interfere
556     with the control and supervision of an offender's incarceration, treatment, probation, or parole;
557          (14) records that, if disclosed, would reveal recommendations made to the Board of
558     Pardons and Parole by an employee of or contractor for the Department of Corrections, the
559     Board of Pardons and Parole, or the Department of Human Services that are based on the

560     employee's or contractor's supervision, diagnosis, or treatment of any person within the board's
561     jurisdiction;
562          (15) records and audit workpapers that identify audit, collection, and operational
563     procedures and methods used by the State Tax Commission, if disclosure would interfere with
564     audits or collections;
565          (16) records of a governmental audit agency relating to an ongoing or planned audit
566     until the final audit is released;
567          (17) records that are subject to the attorney client privilege;
568          (18) records prepared for or by an attorney, consultant, surety, indemnitor, insurer,
569     employee, or agent of a governmental entity for, or in anticipation of, litigation or a judicial,
570     quasi-judicial, or administrative proceeding;
571          (19) (a) (i) personal files of a state legislator, including personal correspondence to or
572     from a member of the Legislature; and
573          (ii) notwithstanding Subsection (19)(a)(i), correspondence that gives notice of
574     legislative action or policy may not be classified as protected under this section; and
575          (b) (i) an internal communication that is part of the deliberative process in connection
576     with the preparation of legislation between:
577          (A) members of a legislative body;
578          (B) a member of a legislative body and a member of the legislative body's staff; or
579          (C) members of a legislative body's staff; and
580          (ii) notwithstanding Subsection (19)(b)(i), a communication that gives notice of
581     legislative action or policy may not be classified as protected under this section;
582          (20) (a) records in the custody or control of the Office of Legislative Research and
583     General Counsel, that, if disclosed, would reveal a particular legislator's contemplated
584     legislation or contemplated course of action before the legislator has elected to support the
585     legislation or course of action, or made the legislation or course of action public; and
586          (b) notwithstanding Subsection (20)(a), the form to request legislation submitted to the
587     Office of Legislative Research and General Counsel is a public document unless a legislator

588     asks that the records requesting the legislation be maintained as protected records until such
589     time as the legislator elects to make the legislation or course of action public;
590          (21) research requests from legislators to the Office of Legislative Research and
591     General Counsel or the Office of the Legislative Fiscal Analyst and research findings prepared
592     in response to these requests;
593          (22) drafts, unless otherwise classified as public;
594          (23) records concerning a governmental entity's strategy about:
595          (a) collective bargaining; or
596          (b) imminent or pending litigation;
597          (24) records of investigations of loss occurrences and analyses of loss occurrences that
598     may be covered by the Risk Management Fund, the Employers' Reinsurance Fund, the
599     Uninsured Employers' Fund, or similar divisions in other governmental entities;
600          (25) records, other than personnel evaluations, that contain a personal recommendation
601     concerning an individual if disclosure would constitute a clearly unwarranted invasion of
602     personal privacy, or disclosure is not in the public interest;
603          (26) records that reveal the location of historic, prehistoric, paleontological, or
604     biological resources that if known would jeopardize the security of those resources or of
605     valuable historic, scientific, educational, or cultural information;
606          (27) records of independent state agencies if the disclosure of the records would
607     conflict with the fiduciary obligations of the agency;
608          (28) records of an institution within the state system of higher education defined in
609     Section 53B-1-102 regarding tenure evaluations, appointments, applications for admissions,
610     retention decisions, and promotions, which could be properly discussed in a meeting closed in
611     accordance with Title 52, Chapter 4, Open and Public Meetings Act, provided that records of
612     the final decisions about tenure, appointments, retention, promotions, or those students
613     admitted, may not be classified as protected under this section;
614          (29) records of the governor's office, including budget recommendations, legislative
615     proposals, and policy statements, that if disclosed would reveal the governor's contemplated

616     policies or contemplated courses of action before the governor has implemented or rejected
617     those policies or courses of action or made them public;
618          (30) records of the Office of the Legislative Fiscal Analyst relating to budget analysis,
619     revenue estimates, and fiscal notes of proposed legislation before issuance of the final
620     recommendations in these areas;
621          (31) records provided by the United States or by a government entity outside the state
622     that are given to the governmental entity with a requirement that they be managed as protected
623     records if the providing entity certifies that the record would not be subject to public disclosure
624     if retained by it;
625          (32) transcripts, minutes, recordings, or reports of the closed portion of a meeting of a
626     public body except as provided in Section 52-4-206;
627          (33) records that would reveal the contents of settlement negotiations but not including
628     final settlements or empirical data to the extent that they are not otherwise exempt from
629     disclosure;
630          (34) memoranda prepared by staff and used in the decision-making process by an
631     administrative law judge, a member of the Board of Pardons and Parole, or a member of any
632     other body charged by law with performing a quasi-judicial function;
633          (35) records that would reveal negotiations regarding assistance or incentives offered
634     by or requested from a governmental entity for the purpose of encouraging a person to expand
635     or locate a business in Utah, but only if disclosure would result in actual economic harm to the
636     person or place the governmental entity at a competitive disadvantage, but this section may not
637     be used to restrict access to a record evidencing a final contract;
638          (36) materials to which access must be limited for purposes of securing or maintaining
639     the governmental entity's proprietary protection of intellectual property rights including patents,
640     copyrights, and trade secrets;
641          (37) the name of a donor or a prospective donor to a governmental entity, including an
642     institution within the state system of higher education defined in Section 53B-1-102, and other
643     information concerning the donation that could reasonably be expected to reveal the identity of

644     the donor, provided that:
645          (a) the donor requests anonymity in writing;
646          (b) any terms, conditions, restrictions, or privileges relating to the donation may not be
647     classified protected by the governmental entity under this Subsection (37); and
648          (c) except for an institution within the state system of higher education defined in
649     Section 53B-1-102, the governmental unit to which the donation is made is primarily engaged
650     in educational, charitable, or artistic endeavors, and has no regulatory or legislative authority
651     over the donor, a member of the donor's immediate family, or any entity owned or controlled
652     by the donor or the donor's immediate family;
653          (38) accident reports, except as provided in Sections 41-6a-404, 41-12a-202, and
654     73-18-13;
655          (39) a notification of workers' compensation insurance coverage described in Section
656     34A-2-205;
657          (40) (a) the following records of an institution within the state system of higher
658     education defined in Section 53B-1-102, which have been developed, discovered, disclosed to,
659     or received by or on behalf of faculty, staff, employees, or students of the institution:
660          (i) unpublished lecture notes;
661          (ii) unpublished notes, data, and information:
662          (A) relating to research; and
663          (B) of:
664          (I) the institution within the state system of higher education defined in Section
665     53B-1-102; or
666          (II) a sponsor of sponsored research;
667          (iii) unpublished manuscripts;
668          (iv) creative works in process;
669          (v) scholarly correspondence; and
670          (vi) confidential information contained in research proposals;
671          (b) Subsection (40)(a) may not be construed to prohibit disclosure of public

672     information required pursuant to Subsection 53B-16-302(2)(a) or (b); and
673          (c) Subsection (40)(a) may not be construed to affect the ownership of a record;
674          (41) (a) records in the custody or control of the Office of Legislative Auditor General
675     that would reveal the name of a particular legislator who requests a legislative audit prior to the
676     date that audit is completed and made public; and
677          (b) notwithstanding Subsection (41)(a), a request for a legislative audit submitted to the
678     Office of the Legislative Auditor General is a public document unless the legislator asks that
679     the records in the custody or control of the Office of Legislative Auditor General that would
680     reveal the name of a particular legislator who requests a legislative audit be maintained as
681     protected records until the audit is completed and made public;
682          (42) records that provide detail as to the location of an explosive, including a map or
683     other document that indicates the location of:
684          (a) a production facility; or
685          (b) a magazine;
686          (43) information:
687          (a) contained in the statewide database of the Division of Aging and Adult Services
688     created by Section 62A-3-311.1; or
689          (b) received or maintained in relation to the Identity Theft Reporting Information
690     System (IRIS) established under Section 67-5-22;
691          (44) information contained in the Management Information System and Licensing
692     Information System described in Title 62A, Chapter 4a, Child and Family Services;
693          (45) information regarding National Guard operations or activities in support of the
694     National Guard's federal mission;
695          (46) records provided by any pawn or secondhand business to a law enforcement
696     agency or to the central database in compliance with Title 13, Chapter 32a, Pawnshop and
697     Secondhand Merchandise Transaction Information Act;
698          (47) information regarding food security, risk, and vulnerability assessments performed
699     by the Department of Agriculture and Food;

700          (48) except to the extent that the record is exempt from this chapter pursuant to Section
701     63G-2-106, records related to an emergency plan or program, a copy of which is provided to or
702     prepared or maintained by the Division of Emergency Management, and the disclosure of
703     which would jeopardize:
704          (a) the safety of the general public; or
705          (b) the security of:
706          (i) governmental property;
707          (ii) governmental programs; or
708          (iii) the property of a private person who provides the Division of Emergency
709     Management information;
710          (49) records of the Department of Agriculture and Food that provides for the
711     identification, tracing, or control of livestock diseases, including any program established under
712     Title 4, Chapter 24, Utah Livestock Brand and Anti-Theft Act, or Title 4, Chapter 31, Control
713     of Animal Disease;
714          (50) as provided in Section 26-39-501:
715          (a) information or records held by the Department of Health related to a complaint
716     regarding a child care program or residential child care which the department is unable to
717     substantiate; and
718          (b) information or records related to a complaint received by the Department of Health
719     from an anonymous complainant regarding a child care program or residential child care;
720          (51) unless otherwise classified as public under Section 63G-2-301 and except as
721     provided under Section 41-1a-116, an individual's home address, home telephone number, or
722     personal mobile phone number, if:
723          (a) the individual is required to provide the information in order to comply with a law,
724     ordinance, rule, or order of a government entity; and
725          (b) the subject of the record has a reasonable expectation that this information will be
726     kept confidential due to:
727          (i) the nature of the law, ordinance, rule, or order; and

728          (ii) the individual complying with the law, ordinance, rule, or order;
729          (52) the portion of the following documents that contains a candidate's residential or
730     mailing address, if the candidate provides to the filing officer another address or phone number
731     where the candidate may be contacted:
732          (a) a declaration of candidacy, a nomination petition, or a certificate of nomination,
733     described in Section 20A-9-201, 20A-9-202, 20A-9-203, 20A-9-404, 20A-9-405, 20A-9-408,
734     20A-9-408.5, 20A-9-502, or 20A-9-601;
735          (b) an affidavit of impecuniosity, described in Section 20A-9-201; or
736          (c) a notice of intent to gather signatures for candidacy, described in Section
737     20A-9-408;
738          (53) the name, home address, work addresses, and telephone numbers of an individual
739     that is engaged in, or that provides goods or services for, medical or scientific research that is:
740          (a) conducted within the state system of higher education, as defined in Section
741     53B-1-102; and
742          (b) conducted using animals;
743          (54) in accordance with Section 78A-12-203, any record of the Judicial Performance
744     Evaluation Commission concerning an individual commissioner's vote on whether or not to
745     recommend that the voters retain a judge including information disclosed under Subsection
746     78A-12-203(5)(e);
747          (55) information collected and a report prepared by the Judicial Performance
748     Evaluation Commission concerning a judge, unless Section 20A-7-702 or Title 78A, Chapter
749     12, Judicial Performance Evaluation Commission Act, requires disclosure of, or makes public,
750     the information or report;
751          (56) records contained in the Management Information System created in Section
752     62A-4a-1003;
753          (57) records provided or received by the Public Lands Policy Coordinating Office in
754     furtherance of any contract or other agreement made in accordance with Section 63J-4-603;
755          (58) information requested by and provided to the 911 Division under Section

756     63H-7a-302;
757          (59) in accordance with Section 73-10-33:
758          (a) a management plan for a water conveyance facility in the possession of the Division
759     of Water Resources or the Board of Water Resources; or
760          (b) an outline of an emergency response plan in possession of the state or a county or
761     municipality;
762          (60) the following records in the custody or control of the Office of Inspector General
763     of Medicaid Services, created in Section 63A-13-201:
764          (a) records that would disclose information relating to allegations of personal
765     misconduct, gross mismanagement, or illegal activity of a person if the information or
766     allegation cannot be corroborated by the Office of Inspector General of Medicaid Services
767     through other documents or evidence, and the records relating to the allegation are not relied
768     upon by the Office of Inspector General of Medicaid Services in preparing a final investigation
769     report or final audit report;
770          (b) records and audit workpapers to the extent they would disclose the identity of a
771     person who, during the course of an investigation or audit, communicated the existence of any
772     Medicaid fraud, waste, or abuse, or a violation or suspected violation of a law, rule, or
773     regulation adopted under the laws of this state, a political subdivision of the state, or any
774     recognized entity of the United States, if the information was disclosed on the condition that
775     the identity of the person be protected;
776          (c) before the time that an investigation or audit is completed and the final
777     investigation or final audit report is released, records or drafts circulated to a person who is not
778     an employee or head of a governmental entity for the person's response or information;
779          (d) records that would disclose an outline or part of any investigation, audit survey
780     plan, or audit program; or
781          (e) requests for an investigation or audit, if disclosure would risk circumvention of an
782     investigation or audit;
783          (61) records that reveal methods used by the Office of Inspector General of Medicaid

784     Services, the fraud unit, or the Department of Health, to discover Medicaid fraud, waste, or
785     abuse;
786          (62) information provided to the Department of Health or the Division of Occupational
787     and Professional Licensing under Subsection 58-68-304(3) or (4);
788          (63) a record described in Section 63G-12-210;
789          (64) captured plate data that is obtained through an automatic license plate reader
790     system used by a governmental entity as authorized in Section 41-6a-2003;
791          (65) any record in the custody of the Utah Office for Victims of Crime relating to a
792     victim, including:
793          (a) a victim's application or request for benefits;
794          (b) a victim's receipt or denial of benefits; and
795          (c) any administrative notes or records made or created for the purpose of, or used to,
796     evaluate or communicate a victim's eligibility for or denial of benefits from the Crime Victim
797     Reparations Fund;
798          (66) an audio or video recording created by a body-worn camera, as that term is
799     defined in Section 77-7a-103, that records sound or images inside a hospital or health care
800     facility as those terms are defined in Section 78B-3-403, inside a clinic of a health care
801     provider, as that term is defined in Section 78B-3-403, or inside a human service program as
802     that term is defined in Section 62A-2-101, except for recordings that:
803          (a) depict the commission of an alleged crime;
804          (b) record any encounter between a law enforcement officer and a person that results in
805     death or bodily injury, or includes an instance when an officer fires a weapon;
806          (c) record any encounter that is the subject of a complaint or a legal proceeding against
807     a law enforcement officer or law enforcement agency;
808          (d) contain an officer involved critical incident as defined in Subsection
809     76-2-408(1)(d); or
810          (e) have been requested for reclassification as a public record by a subject or
811     authorized agent of a subject featured in the recording;

812          (67) a record pertaining to the search process for a president of an institution of higher
813     education described in Section 53B-2-102, except for application materials for a publicly
814     announced finalist; and
815          (68) an audio recording that is:
816          (a) produced by an audio recording device that is used in conjunction with a device or
817     piece of equipment designed or intended for resuscitating an individual or for treating an
818     individual with a life-threatening condition;
819          (b) produced during an emergency event when an individual employed to provide law
820     enforcement, fire protection, paramedic, emergency medical, or other first responder service:
821          (i) is responding to an individual needing resuscitation or with a life-threatening
822     condition; and
823          (ii) uses a device or piece of equipment designed or intended for resuscitating an
824     individual or for treating an individual with a life-threatening condition; and
825          (c) intended and used for purposes of training emergency responders how to improve
826     their response to an emergency situation;
827          (69) records submitted by or prepared in relation to an applicant seeking a
828     recommendation by the Research and General Counsel Subcommittee, the Budget
829     Subcommittee, or the Audit Subcommittee, established under Section 36-12-8, for an
830     employment position with the Legislature;
831          (70) work papers as defined in Section 31A-2-204;
832          (71) a record made available to Adult Protective Services or a law enforcement agency
833     under Section 61-1-206;
834          (72) a record submitted to the Insurance Department in accordance with Section
835     31A-37-201; and
836          (73) a record described in Section 31A-37-503.
837          (74) any record created by the Division of Occupational and Professional Licensing as
838     a result of Subsection 58-37f-304(5) or 58-37f-702(2)(a)(ii); [and]
839          (75) a record described in Section 72-16-306 that relates to the reporting of an injury

840     involving an amusement ride[.]; and
841          (76) a record submitted to the Insurance Department under Subsection
842     31A-47-103(1)(b).
843          Section 15. Coordinating H.B. 272 with S.B. 138 -- Superseding technical and
844     substantive amendments.
845          If this H.B. 272 and S.B. 138, Pharmacy Benefit Manager Revisions, both pass and
846     become law, it is the intent of the Legislature that the amendments to Subsection
847     31A-46-302(1) in S.B. 138 supersede the amendments to Subsection 31A-46-302(1) in this bill
848     when the Office of Legislative Research and General Counsel prepares the Utah Code database
849     for publication.