W. Va. Code R. § 114-99-8

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 114-99-8 - Penalties and Reimbursement

8.1. If the Commissioner finds that a licensed PBM has violated any provisions of this rule or Article 51, Chapter 33 of the West Virginia Code that are applicable to the PBM, the Commissioner may, in addition to or in lieu of a licensure suspension or revocation, order the PBM to pay a penalty in a sum not to exceed $10,000 per violation. If the PBM fails to pay the penalty within 30 days after notice of the penalty, the Commissioner may revoke or suspend the license of the PBM. This section shall not affect the right of a PBM to make a written demand for a hearing before the Commissioner pursuant to the provisions of W. Va. Code § 33-2-13 or the right of any party to request judicial review of an order of the Commissioner.

8.2. If the Commissioner finds that a registered auditing entity has violated any provisions of this rule or any provisions of Article 51, Chapter 33 of the West Virginia Code, the Commissioner may, in addition to or in lieu of a registration suspension or revocation, order the auditing entity pay a penalty in a sum not to exceed $2,500 per violation. If the auditing entity fails to pay the penalty within 30 days after notice of the penalty, the Commissioner may revoke or suspend the registration of the auditing entity. This section shall not affect the right of an auditing entity to make a written demand for a hearing before the Commissioner pursuant to the provisions of W. Va. Code § 33-2-13 or the right of any party to request judicial review of an order of the Commissioner.

8.3. With respect to any person or entity operating in this state as a PBM without a license, the Commissioner may do one or both of the following:

8.3.1. File a complaint in the Circuit Court of Kanawha County, or in any county in which a PBM has operated without a license, to enjoin the PBM from operating;

8.3.2. After notice and hearing in accordance with W. Va. Code § 33-2-13, assess restitution in an amount sufficient to reimburse any person adversely affected by the operation of the unlicensed PBM and, in addition to or in lieu of restitution, impose a fine in a sum not to exceed $20,000 for each unauthorized act; and

8.3.3. This section shall not affect the right of a PBM to make a written demand for a hearing before the Commissioner pursuant to the provisions of W. Va. Code § 33-2-13 or the right of any party to request judicial review of an order of the Commissioner.

8.4. With respect to any person or entity operating in this state as an auditing entity without being registered or exempted from registration, the Commissioner may do one or both of the following:

8.4.1. File a complaint in the Circuit Court of Kanawha County, or in any county in which an auditing entity has operated without a license, to enjoin the auditing entity from operating;

8.4.2. After notice and hearing in accordance with W. Va. Code § 33-2-13, assess restitution in an amount sufficient to reimburse any person adversely affected by the operation of the unregistered auditing entity and, in addition to or in lieu of restitution, impose a fine in a sum not to exceed $5,000 for each unauthorized act; and

8.4.3. This section shall not affect the right of an auditing entity to make a written demand for a hearing before the Commissioner pursuant to the provisions of W. Va. Code § 33-2-13 or the right of any party to request judicial review of an order of the Commissioner.

8.5. The Commissioner may order reimbursement to an insured, pharmacy, or dispenser who has incurred a monetary loss as a result of a violation of Article 51, Chapter 33 of the West Virginia Code or the provisions of this rule by a PBM.

8.5.1. To seek reimbursement, an insured, pharmacy or dispenser should file a complaint with the Commissioner within one year following the actual or implied discovery of the violation.

8.5.2. The complaint should be filed on a form provided by the Commissioner and state with specificity the following:

8.5.2.a. The statutory provision, if known, which was allegedly violated;

8.5.2.b. The facts and circumstances giving rise to the alleged violation;

8.5.2.c. The name of any individual or other entity involved in the alleged violation;

8.5.2.d. Reference to specific contract language that is relevant to the alleged violation, if known; and

8.5.2.e. Any other information the commissioner may require.

8.5.3. Upon receipt of a sufficiently complete complaint, the Commissioner shall provide a copy to the PBM.

8.5.4. Within 15 working days after receiving a complaint, the PBM must advise the Commissioner in writing of the status of negotiations with the insured, pharmacy or dispenser to resolve the complaint for reimbursement unless the complaint has already been resolved. If the PBM intends to take no action to resolve the complaint, the PBM shall advise the Commissioner accordingly, in writing, and provide the Commissioner with a substantive response to the allegations in the complaint.

8.5.5. After receiving a written response to the complaint from a PBM, the Commissioner shall determine whether to:

8.5.5.a. Close the complaint and take no further action;

8.5.5.b. Order reimbursement be made from the PBM to the insured, pharmacy or dispenser; or

8.5.5.c. Set the matter for administrative hearing and further determination as to whether the allegations in the complaint are meritorious and reimbursement should be ordered.

8.5.6. An insured, pharmacy or dispenser has the right to contest the Commissioner's decision to close a complaint, without hearing, and take no further action thereon to award reimbursement. A PBM has the right to contest the Commissioner's decision to award reimbursement from the PBM to the insured, pharmacy, or dispenser without hearing thereon. This subsection shall not affect the right of a PBM, insured, pharmacy or dispenser to make a written demand for a hearing pursuant to the provisions of W. Va. Code § 33-2-13 or the right of any party to request judicial review of an order of the Commissioner.

8.5.7. A hearing on a complaint shall be scheduled to be held within 90 days from the date of filing the complaint by the insured, pharmacy or dispenser unless continued by agreement of all parties or by the Commissioner for good cause. Good cause includes but is not limited to a determination by the Commissioner that additional investigation is necessary.

8.5.8. The Commissioner shall assign a time and place for a hearing and shall mail written notice of the hearing to the parties at least 10 days in advance thereof.

8.5.9. To the extent such provisions are not in conflict with this rule, hearings shall be conducted in accordance with the procedures set forth in 114CSR13.

8.5.10. The Commissioner may add interest to an award of reimbursement to an insured, pharmacy or dispenser who has incurred a monetary loss as a result of a violation of Article 51, Chapter 33 of the West Virginia Code or the provisions of this rule by a PBM. If an award of interest is made, it shall be calculated from the date the payment to the insured, pharmacy or dispenser was initially due or should have been made and shall be calculated using the U.S. Prime Rate.

W. Va. Code R. § 114-99-8