Chapter 632

632.861(4)(a) (a) Except as provided in par. (b), a disability insurance policy that offers a prescription drug benefit, a self-insured health plan that offers a prescription drug benefit, or a pharmacy benefit manager acting on behalf of a disability insurance policy or self-insured health plan shall provide to an enrollee advanced written notice of a formulary change that removes a prescription drug from the formulary of the policy or plan or that reassigns a prescription drug to a benefit tier for the policy or plan that has a higher deductible, copayment, or coinsurance. The advanced written notice of a formulary change under this paragraph shall be provided no fewer than 30 days before the expected date of the removal or reassignment and shall include information on the procedure for the enrollee to request an exception to the formulary change. The policy, plan, or pharmacy benefit manager is required to provide the advanced written notice under this paragraph only to those enrollees in the policy or plan who are using the drug at the time the notification must be sent according to available claims history.

632.861(4)(b) (b)

632.861(4)(b)1. 1. A disability insurance policy, self-insured health plan, or pharmacy benefit manager is not required to provide advanced written notice under par. (a) if the prescription drug that is to be removed or reassigned is any of the following:

632.861(4)(b)1.a. a. No longer approved by the federal food and drug administration.

632.861(4)(b)1.b. b. The subject of a notice, guidance, warning, announcement, or other statement from the federal food and drug administration relating to concerns about the safety of the prescription drug.

632.861(4)(b)1.c. c. Approved by the federal food and drug administration for use without a prescription.

632.861(4)(b)2. 2. A disability insurance policy, self-insured health plan, or pharmacy benefit manager is not required to provide advanced written notice under par. (a) if, for the prescription drug that is being removed from the formulary or reassigned to a benefit tier that has a higher deductible, copayment, or coinsurance, the policy, plan, or pharmacy benefit manager adds to the formulary a generic prescription drug that is approved by the federal food and drug administration for use as an alternative to the prescription drug or a prescription drug in the same pharmacologic class or with the same mechanism of action at any of the following benefit tiers:

632.861(4)(b)2.a. a. The same benefit tier from which the prescription drug is being removed or reassigned.

632.861(4)(b)2.b. b. A benefit tier that has a lower deductible, copayment, or coinsurance than the benefit tier from which the prescription drug is being removed or reassigned.

632.861(4)(c) (c) A pharmacist or pharmacy shall notify an enrollee in a disability insurance policy or self-insured health plan if a prescription drug for which an enrollee is filling or refilling a prescription is removed from the formulary and the policy or plan or a pharmacy benefit manager acting on behalf of a policy or plan adds to the formulary a generic prescription drug that is approved by the federal food and drug administration for use as an alternative to the prescription drug or a prescription drug in the same pharmacologic class or with the same mechanism of action at any of the following benefit tiers:

632.861(4)(c)1. 1. The same benefit tier from which the prescription drug is being removed or reassigned.

632.861(4)(c)2. 2. A benefit tier that has a lower deductible, copayment, or coinsurance than the benefit tier from which the prescription drug is being removed or reassigned.

632.861(4)(d) (d) If an enrollee has had an adverse reaction to the generic prescription drug or the prescription drug in the same pharmacologic class or with the same mechanism of action that is being substituted for an originally prescribed drug, the pharmacist or pharmacy may extend the prescription order for the originally prescribed drug to fill one 30-day supply of the originally prescribed drug for the cost-sharing amount that applies to the prescription drug at the time of the substitution.

632.861 History History: 2021 a. 9.

632.865 632.865 Pharmacy benefit managers.

632.865(1) (1) Definitions. In this section:

632.865(1)(ae) (ae) “Health benefit plan” has the meaning given in s. 632.745 (11).

632.865(1)(ak) (ak) “Health care provider” has the meaning given in s. 146.81 (1).

632.865(1)(aw) (aw) “Pharmacist” has the meaning given in s. 450.01 (15).

632.865(1)(b) (b) “Pharmacy” means an entity licensed under s. 450.06 or 450.065.

632.865(1)(c) (c) “Pharmacy benefit manager” means an entity doing business in this state that contracts to administer or manage prescription drug benefits on behalf of any of the following:

632.865(1)(c)1. 1. An insurer.

632.865(1)(c)2. 2. A cooperative, as defined in s. 185.01 (2).

632.865(1)(c)3. 3. Another entity that provides prescription drug benefits to residents of this state.

632.865(1)(d) (d) “Prescribed drug or device” has the meaning given in s. 450.01 (18).

632.865(1)(dm) (dm) “Prescription drug” has the meaning given in s. 450.01 (20).

632.865(1)(e) (e) “Prescription drug benefit” means coverage of or payment or assistance for prescribed drugs or devices.

632.865(2) (2) Pricing transparency.

632.865(2)(a) (a) The pharmacy benefit manager shall agree in each contract or renewal to do all of the following:

632.865(2)(a)1. 1. Update maximum allowable cost pricing information for prescribed drugs or devices at least every 7 business days and provide a means by which contracted pharmacies may promptly review pricing updates in a format that is readily available and accessible.

632.865(2)(a)2. 2. Reimburse pharmacists and pharmacies for prescribed drugs or devices subject to maximum allowable cost information that has been updated at least every 7 business days.

632.865(2)(a)3. 3. Eliminate prescribed drugs or devices from the maximum allowable cost information or modify maximum allowable cost in a timely fashion consistent with availability of prescribed drugs or devices and pricing changes in the marketplace.

632.865(2)(b) (b) A pharmacy benefit manger shall include in each contract with a pharmacy a process to appeal, investigate, and resolve disputes regarding maximum allowable cost pricing that includes all of the following:

632.865(2)(b)1. 1. A 21-day limit on the right to appeal following the initial claim.

632.865(2)(b)2. 2. A requirement that the appeal be investigated and resolved within 21 days after the date of the appeal.

632.865(2)(b)3. 3. A dedicated telephone number at which the pharmacy may contact the pharmacy benefit manager to speak to a person responsible for processing appeals.

632.865(2)(b)4. 4. A requirement that a pharmacy benefit manager provide a reason for any appeal denial and the national drug code published in a directory by the federal food and drug administration of a prescribed drug or device that may be purchased by retail network pharmacies at a price at or below the maximum allowable cost.

632.865(2)(b)5. 5. A requirement that a pharmacy benefit manager make a pricing adjustment no later than one day after the date of the final determination of the appeal.

632.865(3) (3) License required. No person may perform any activities of a pharmacy benefit manager without being licensed by the commissioner as an administrator or pharmacy benefit manager under s. 633.14.

632.865(4) (4) Accreditation for network participation. A pharmacy benefit manager or a representative of a pharmacy benefit manager shall provide to a pharmacy, within 30 days of receipt of a written request from the pharmacy, a written notice of any certification or accreditation requirements used by the pharmacy benefit manager or its representative as a determinant of network participation. A pharmacy benefit manager or a representative of a pharmacy benefit manager may change its accreditation requirements no more frequently than once every 12 months.

632.865(5) (5) Retroactive claim reduction. Unless required otherwise by federal law, a pharmacy benefit manager may not retroactively deny or reduce a pharmacist’s or pharmacy’s claim after adjudication of the claim unless any of the following is true:

632.865(5)(a) (a) The original claim was submitted fraudulently.

632.865(5)(b) (b) The payment for the original claim was incorrect. Recovery for an incorrect payment under this paragraph is limited to the amount that exceeds the allowable claim.

632.865(5)(c) (c) The pharmacy services were not rendered by the pharmacist or pharmacy.

632.865(5)(d) (d) In making the claim or performing the service that is the basis for the claim, the pharmacist or pharmacy violated state or federal law.

632.865(5)(e) (e) The reduction is permitted in a contract between a pharmacy and a pharmacy benefit manager and is related to a quality program.

632.865(6) (6) Audits of pharmacies or pharmacists.

632.865(6)(a) (a) Definitions. In this subsection:

632.865(6)(a)1. 1. “Audit” means a review of the accounts and records of a pharmacy or pharmacist by or on behalf of an entity that finances or reimburses the cost of health care services or prescription drugs.

632.865(6)(a)2. 2. “Entity” means a defined network plan, as defined in s. 609.01 (1b), insurer, self-insured health plan, or pharmacy benefit manager or a person acting on behalf of a defined network plan, insurer, self-insured health plan, or pharmacy benefit manager.

632.865(6)(a)3. 3. “Self-insured health plan” has the meaning given in s. 632.85 (1) (c).

632.865(6)(b) (b) Procedures. An entity conducting an on-site or desk audit of pharmacist or pharmacy records shall do all of the following:

632.865(6)(b)1. 1. If the audit is an audit on the premises of the pharmacist or pharmacy, notify the pharmacist or pharmacy in writing of the audit at least 2 weeks before conducting the audit.

632.865(6)(b)2. 2. Refrain from auditing a pharmacist or pharmacy within the first 5 business days of a month unless the pharmacist or pharmacy consents to an audit during that time.

632.865(6)(b)3. 3. If the audit involves clinical or professional judgment, conduct the audit by or in consultation with a pharmacist licensed in any state.

632.865(6)(b)4. 4. Limit the audit review to no more than 250 separate prescriptions. For purposes of this subdivision, a refill of a prescription is not a separate prescription.

632.865(6)(b)5. 5. Limit the audit review to claims submitted no more than 2 years before the date of the audit, unless required otherwise by state or federal law.

632.865(6)(b)6. 6. Allow the pharmacist or pharmacy to use authentic and verifiable records of a hospital, physician, or other health care provider to validate the pharmacist’s or pharmacy’s records relating to delivery of a prescription drug and use any valid prescription that complies with requirements of the pharmacy examining board to validate claims in connection with a prescription, refill of a prescription, or change in prescription.

632.865(6)(b)7. 7. Allow the pharmacy or pharmacist to document the delivery of a prescription drug or pharmacist services to an enrollee under a health benefit plan using either paper or electronic signature logs.

632.865(6)(b)8. 8. Before leaving the pharmacy after concluding the on-site portion of an audit, provide to the representative of the pharmacy or the pharmacist a complete list of the pharmacy records reviewed.

632.865(6)(c) (c) Results of audit. An entity that has conducted an audit of a pharmacist or pharmacy shall do all of the following:

632.865(6)(c)1. 1. Deliver to the pharmacist or pharmacy a preliminary report of the audit within 60 days after the date the auditor departs from an on-site audit or the pharmacy or pharmacist submits paperwork for a desk audit. A preliminary report under this subdivision shall include claim-level information for any discrepancy reported, the estimated total amount of claims subject to recovery, and contact information for the entity or person that completed the audit so the pharmacist or pharmacy subject to the audit may review audit results, procedures, and discrepancies.

632.865(6)(c)2. 2. Allow a pharmacist or pharmacy that is the subject of an audit to provide documentation to address any discrepancy found in the audit within 30 days after the date the pharmacist or pharmacy receives the preliminary report.

632.865(6)(c)3. 3. Deliver to the pharmacist or pharmacy a final audit report, which may be delivered electronically, within 90 days of the date the pharmacist or pharmacy receives the preliminary report or the date of the final appeal of the audit, whichever is later. The final audit report under this subdivision shall include any response provided to the auditor by the pharmacy or pharmacist and consider and address the pharmacy’s or pharmacist’s response.

632.865(6)(c)4. 4. Refrain from assessing a recoupment or other penalty on a pharmacist or pharmacy until the appeal process is exhausted and the final report under subd. 3. is delivered to the pharmacist or pharmacy.

632.865(6)(c)5. 5. Refrain from accruing or charging interest between the time the notice of the audit is given under par. (b) 1. and the final report under subd. 3. has been delivered.

632.865(6)(c)6. 6. Exclude dispensing fees from calculations of overpayments.

632.865(6)(c)7. 7. Establish and follow a written appeals process that allows a pharmacy or pharmacist to appeal the final report of an audit and allow the pharmacy or pharmacist as part of the appeal process to arrange for, at the cost of the pharmacy or pharmacist, an independent audit.

632.865(6)(c)8. 8. Refrain from subjecting the pharmacy or pharmacist to a recoupment or recovery for a clerical or record-keeping error in a required document or record, including a typographical or computer error, unless the error resulted in an overpayment to the pharmacy or pharmacist.

632.865(6)(d) (d) Confidentiality of audit. Information obtained in an audit under this subsection is confidential and may not be shared unless the information is required to be shared under state or federal law and except that the audit may be shared with the entity on whose behalf the audit is performed. An entity conducting an audit may have access to the previous audit reports on a particular pharmacy only if the audit is conducted by the same entity.

632.865(6)(e) (e) Cooperation with audit. If an entity is conducting an audit that is complying with this subsection in auditing a pharmacy or pharmacist, the pharmacy or pharmacist that is the subject of the audit may not interfere with or refuse to participate in the audit.

632.865(6)(f) (f) Payment of auditors. A pharmacy benefit manager or entity conducting an audit may not pay an auditor employed by or contracted with the pharmacy benefit manager or entity based on a percentage of the amount recovered in an audit.

632.865(6)(g) (g) Applicability.

632.865(6)(g)1. 1. This subsection does not apply to an investigative audit that is initiated as a result of a credible allegation of fraud or willful misrepresentation or criminal wrongdoing.

632.865(6)(g)2. 2. If an entity conducts an audit to which a federal law applies that is in conflict with all or part of this subsection, the entity shall comply with this subsection only to the extent that it does not conflict with federal law.

632.865(7) (7) Transparency reports.

632.865(7)(a) (a) Beginning on June 1, 2021, and annually thereafter, every pharmacy benefit manager shall submit to the commissioner a report that contains, from the previous calendar year, the aggregate rebate amount that the pharmacy benefit manager received from all pharmaceutical manufacturers but retained and did not pass through to health benefit plan sponsors and the percentage of the aggregate rebate amount that is retained rebates. Information required under this paragraph is limited to contracts held with pharmacies located in this state.

632.865(7)(b) (b) Reports under this subsection shall be considered a trade secret under the uniform trade secret act under s. 134.90.

632.865(7)(c) (c) The commissioner may not expand upon the reporting requirement under this subsection, except that the commissioner may effectuate this subsection.

632.865 History History: 2015 a. 55; 2021 a. 9.

632.866 632.866 Step therapy protocols.

632.866(1) (1) Definitions. In this section:

632.866(1)(a) (a) “Clinical practice guideline” means a systematically developed statement to assist decision making by health care providers and patients about appropriate health care for specific clinical circumstances and conditions.

632.866(1)(b) (b) “Clinical review criteria” means written screening procedures, decision abstracts, clinical protocols, and clinical practice guidelines used by an insurer, pharmacy benefit manager, or utilization review organization to determine whether health care services are medically necessary and appropriate.

632.866(1)(c) (c) “Exigent circumstances” means when a patient is suffering from a health condition that may seriously jeopardize the patient’s life, health, or ability to regain maximum function.

632.866(1)(d) (d) “Pharmacy benefit manager” has the meaning given in s. 632.865 (1) (c).

632.866(1)(e) (e) “Step therapy protocol” means a protocol or program that establishes the specific sequence in which prescription drugs for a specified medical condition, whether self-administered or physician-administered, that are medically appropriate for a particular patient are covered under a policy or plan.

632.866(1)(f) (f) “Utilization review organization” means an entity that conducts utilization review, other than an insurer or pharmacy benefit manager performing utilization review for its own policy or plan.

632.866(2) (2) Clinical review criteria.