Senator Curtis S. Bramble proposes the following substitute bill:


1     
PRESCRIPTION COST AMENDMENTS

2     
2023 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Curtis S. Bramble

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House Sponsor: Karianne Lisonbee

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7     LONG TITLE
8     General Description:
9          This bill enacts provisions related to health benefit plan cost sharing.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     requires an insurer to calculate any amounts paid on behalf of an individual towards
14     the individual's cost sharing requirement;
15          ▸     requires a pharmacy benefit manager to calculate any amounts paid on behalf of an
16     individual towards the individual's cost sharing requirement; and
17          ▸     makes technical changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          31A-46-102, as last amended by Laws of Utah 2020, Chapters 198, 275 and 372
25     ENACTS:
26          31A-46-311, Utah Code Annotated 1953
27     REPEALS AND REENACTS:
28          31A-22-657, as enacted by Laws of Utah 2022, Chapter 198
29     

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 31A-22-657 is repealed and reenacted to read:
32          31A-22-657. Cost sharing requirements for health benefit plans.
33          (1) As used in this section:
34          (a) (i) "Cost sharing requirement" means any copayment, coinsurance, deductible, or
35     annual limitation on cost sharing required by a health benefit plan for a specific health care
36     service covered by the health benefit plan.
37          (ii) "Cost sharing requirement" includes any copayment, coinsurance, deductible, or
38     annual limitation that is subject to 42 U.S.C. Secs. 18022(c) or 300gg-6(b).
39          (b) (i) "Health care service" means an item or service furnished to an individual for the
40     purpose of preventing, alleviating, curing, or healing human illness, injury, or physical
41     disability.
42          (ii) "Health care service" includes a prescription drug.
43          (c) "High deductible health plan" means the same as that term is defined in 26 U.S.C.
44     Sec. 223(c)(2).
45          (d) "Insurer" means the same as that term is defined in Section 31A-22-636.
46          (2) When calculating an enrollee's contribution to any applicable cost sharing
47     requirement for a health care service, an insurer shall include any cost sharing amounts paid:
48          (a) by the enrollee; or
49          (b) on behalf of the enrollee by another person.
50          (3) (a) Except as provided in Subsection (3)(b), an insurer shall calculate cost sharing
51     requirements for a health care service in accordance with Subsection (2) even if the enrollee
52     has not met the enrollee's deductible.
53          (b) An insurer may calculate cost sharing requirements for a health care service in
54     accordance with Subsection (2) after the enrollee has met the enrollee's minimum deductible
55     under 26 U.S.C. Sec. 223 only if:
56          (i) the enrollee is enrolled in a health benefit plan that is a high deductible health plan;
57          (ii) calculating the cost sharing requirements in accordance with Subsection (2) before
58     the enrollee has met the high deductible health plan's minimum deductible under 26 U.S.C.
59     Sec. 223 would result in health savings account ineligibility under 26 U.S.C. Sec. 223; and
60          (iii) the health care service is not preventive care under 26 U.S.C. Sec. 223(c)(2)(C).
61          (4) This section applies to any health benefit plan entered into, amended, extended, or
62     renewed on or after January 1, 2024.
63          (5) The commissioner may make rules in accordance with Title 63G, Chapter 3, Utah
64     Administrative Rulemaking Act, to implement this section.
65          Section 2. Section 31A-46-102 is amended to read:
66          31A-46-102. Definitions.
67          As used in this chapter:
68          (1) "340B drug" means a drug purchased through the 340B drug discount program by a
69     340B entity.
70          (2) "340B drug discount program" means the 340B drug discount program described in
71     42 U.S.C. Sec. 256b.
72          (3) "340B entity" means:
73          (a) an entity participating in the 340B drug discount program;
74          (b) a pharmacy of an entity participating in the 340B drug discount program; or
75          (c) a pharmacy contracting with an entity participating in the 340B drug discount
76     program to dispense drugs purchased through the 340B drug discount program.
77          (4) "Administrative fee" means any payment, other than a rebate, that a pharmaceutical
78     manufacturer makes directly or indirectly to a pharmacy benefit manager.
79          (5) "Allowable claim amount" means the amount paid by an insurer under the
80     [customer's] enrollee's health benefit plan.
81          (6) "Contracting insurer" means an insurer with whom a pharmacy benefit manager
82     contracts to provide a pharmacy benefit management service.
83          (7) "Cost share" means the amount paid by an [insured customer under the customer's]
84     enrollee under the enrollee's health benefit plan.
85          (8) "Cost sharing requirement" means the same as that term is defined in Section
86     31A-22-657.
87          [(8)] (9) "Device" means the same as that term is defined in Section 58-17b-102.
88          [(9)] (10) "Direct or indirect remuneration" means any adjustment in the total
89     compensation:
90          (a) received by a pharmacy from a pharmacy benefit manager for the sale of a drug,
91     device, or other product or service; and
92          (b) that is determined after the sale of the product or service.
93          [(10)] (11) "Dispense" means the same as that term is defined in Section 58-17b-102.
94          [(11)] (12) "Drug" means the same as that term is defined in Section 58-17b-102.
95          (13) "Health care service" means the same as that term is defined in Section
96     31A-22-657.
97          (14) "High deductible health plan" means the same as that term is defined in 26 U.S.C.
98     Sec. 223(c)(2).
99          [(12)] (15) "Insurer" means the same as that term is defined in Section 31A-22-636.
100          [(13)] (16) "Maximum allowable cost" means:
101          (a) a maximum reimbursement amount for a group of pharmaceutically and
102     therapeutically equivalent drugs; or
103          (b) any similar reimbursement amount that is used by a pharmacy benefit manager to
104     reimburse pharmacies for multiple source drugs.
105          [(14)] (17) "Medicaid program" means the same as that term is defined in Section
106     26-18-2.
107          [(15)] (18) "Obsolete" means a product that may be listed in national drug pricing
108     compendia but is no longer available to be dispensed based on the expiration date of the last lot
109     manufactured.
110          [(16)] (19) "Patient counseling" means the same as that term is defined in Section
111     58-17b-102.
112          [(17)] (20) "Pharmaceutical facility" means the same as that term is defined in Section
113     58-17b-102.
114          [(18)] (21) "Pharmaceutical manufacturer" means a pharmaceutical facility that
115     manufactures prescription drugs.
116          [(19)] (22) "Pharmacist" means the same as that term is defined in Section 58-17b-102.
117          [(20)] (23) "Pharmacy" means the same as that term is defined in Section 58-17b-102.
118          [(21)] (24) "Pharmacy benefits management service" means any of the following
119     services provided to a health benefit plan, or to a participant of a health benefit plan:
120          (a) negotiating the amount to be paid by a health benefit plan for a prescription drug; or
121          (b) administering or managing a prescription drug benefit provided by the health
122     benefit plan for the benefit of a participant of the health benefit plan, including administering
123     or managing:
124          (i) an out-of-state mail service pharmacy;
125          (ii) a specialty pharmacy;
126          (iii) claims processing;
127          (iv) payment of a claim;
128          (v) retail network management;
129          (vi) clinical formulary development;
130          (vii) clinical formulary management services;
131          (viii) rebate contracting;
132          (ix) rebate administration;
133          (x) a participant compliance program;
134          (xi) a therapeutic intervention program;
135          (xii) a disease management program; or
136          (xiii) a service that is similar to, or related to, a service described in Subsection [(21)(a)
137     or (21)(b)(i)] (24)(a) or (24)(b)(i) through (xii).
138          [(22)] (25) "Pharmacy benefit manager" means a person licensed under this chapter to
139     provide a pharmacy benefits management service.
140          [(23)] (26) "Pharmacy service" means a product, good, or service provided to an
141     individual by a pharmacy or pharmacist.
142          [(24)] (27) "Pharmacy services administration organization" means an entity that
143     contracts with a pharmacy to assist with third-party payer interactions and administrative
144     services related to third-party payer interactions, including:
145          (a) contracting with a pharmacy benefit manager on behalf of the pharmacy; and
146          (b) managing a pharmacy's claims payments from third-party payers.
147          [(25)] (28) "Pharmacy service entity" means:
148          (a) a pharmacy services administration organization; or
149          (b) a pharmacy benefit manager.
150          [(26)] (29) "Prescription device" means the same as that term is defined in Section
151     58-17b-102.
152          [(27)] (30) "Prescription drug" means the same as that term is defined in Section
153     58-17b-102.
154          [(28)] (31) (a) "Rebate" means a refund, discount, or other price concession that is paid
155     by a pharmaceutical manufacturer to a pharmacy benefit manager based on a prescription
156     drug's utilization or effectiveness.
157          (b) "Rebate" does not include an administrative fee.
158          [(29)] (32) (a) "Reimbursement report" means a report on the adjustment in total
159     compensation for a claim.
160          (b) "Reimbursement report" does not include a report on adjustments made pursuant to
161     a pharmacy audit or reprocessing.
162          [(30)] (33) "Retail pharmacy" means the same as that term is defined in Section
163     58-17b-102.
164          [(31)] (34) "Sale" means a prescription drug or prescription device claim covered by a
165     health benefit plan.
166          [(32)] (35) "Wholesale acquisition cost" means the same as that term is defined in 42
167     U.S.C. Sec. 1395w-3a.
168          Section 3. Section 31A-46-311 is enacted to read:
169          31A-46-311. Cost sharing requirements for pharmacy benefit managers.
170          (1) When calculating an enrollee's contribution to any applicable cost sharing
171     requirement for a health care service, a pharmacy benefit manager shall include any cost
172     sharing amounts paid:
173          (a) by the enrollee; or
174          (b) on behalf of the enrollee by another person.
175          (2) (a) Except as provided in Subsection (2)(b), a pharmacy benefit manager shall
176     calculate cost sharing requirements for a health care service in accordance with Subsection (1)
177     even if the enrollee has not met the enrollee's minimum deductible.
178          (b) A pharmacy benefit manger may calculate cost sharing requirements for a health
179     care service in accordance with Subsection (1) after the enrollee has met the minimum
180     deductible under 26 U.S.C. Sec. 223 only if:
181          (i) the enrollee is enrolled in a health benefit plan that is a high deductible health plan;
182          (ii) calculating the cost sharing requirements in accordance with Subsection (1) before
183     the enrollee has met the high deductible health plan's minimum deductible would result in
184     health savings account ineligibility under 26 U.S.C. Sec. 223; and
185          (iii) the health care service is not preventive care under 26 U.S.C. Sec. 223(c)(2)(C).
186          (3) This section applies to any health benefit plan entered into, amended, extended, or
187     renewed on or after January 1, 2024.
188          (4) The commissioner may make rules in accordance with Title 63G, Chapter 3, Utah
189     Administrative Rulemaking Act, to implement this section.