W. Va. Code R. § 114-99-9

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

Section 114-99-9 - Consumer Choice for Pharmacy Benefits

9.1. Applicability.

9.1.1. Section 9 of this rule applies to all PBMs and health benefit plans providing pharmaceutical services or pharmacy benefits, including but not limited to prescription drugs, to any resident of West Virginia.

9.1.2. Section 9 of this rule does not apply to any entity that has its own facility, employs or contracts with physicians, pharmacists, nurses and other health care personnel, and that dispenses prescription drugs from its own pharmacy to its employees and dependents enrolled in its health benefit plan.

9.1.3. Section 9 of this rule applies to an entity otherwise excluded under subsection 9.1.2 of this rule that contracts with an outside pharmacy or group of pharmacies to provide prescription drugs and services.

9.2. Prohibitions.

9.2.1. A PBM or health benefit plan may not:

9.2.1.a. Prohibit or limit any covered individual from selecting a pharmacy or pharmacist of his or her choice who has agreed to participate in the health benefit plan's network according to the terms offered by the health benefit plan;

9.2.1.b. Deny a pharmacy or pharmacist the right to participate as a contract provider under the health insurance policy or health benefit plan's network if the pharmacy or pharmacist agrees to provide pharmacy services or benefits, including but not limited to prescription drugs, that meet the terms and requirements set forth by the insurer or health benefit plan under the health insurance policy or health benefit plan's network and agrees to the terms of reimbursement set forth by the insurer or health benefit plan;

9.2.1.c. Impose upon a pharmacy or pharmacist, as a condition of participation in a health benefit plan's network, any course of study, accreditation, certification, or credentialing that is inconsistent with, more stringent than, or in addition to state requirements for licensure or certification as provided for in W. Va. Code § 30-5-1et seq. and legislative rules of the Board of Pharmacy.

9.2.1.d. Impose upon a beneficiary of pharmacy services under a health benefit plan any co-payment, fee or condition that is not equally imposed upon all beneficiaries in the same benefit category, class or co-payment level under the health benefit plan's network when receiving services from a contract provider;

9.2.1.e. Impose a monetary advantage or penalty under a health benefit plan that would affect a beneficiary's choice among those pharmacies or pharmacists who have agreed to participate in the health benefit plan's network according to the terms offered by the insurer or health benefit plan. For purposes of this subdivision, "monetary advantage or penalty" includes higher co-payment, a reduction in reimbursement for services or the promotion of one participating pharmacy over another by these methods;

9.2.1.f. Reduce allowable reimbursement for pharmacy services to a beneficiary under a health benefit plan because the beneficiary selects a pharmacy of his or her choice, so long as that pharmacy has enrolled as a network provider with the health benefit plan under the terms offered to all pharmacies in the plan coverage area;

9.2.1.g. Prohibit or otherwise limit a beneficiary's access to prescription drugs from a pharmacy or pharmacist enrolled with the health benefit plan under the terms offered to all pharmacies in the plan coverage area by unreasonably designating the covered prescription drug as a specialty drug. Any beneficiary or pharmacy impacted by an alleged violation of this subsection may file a complaint with the Commissioner, who shall, in consultation with the West Virginia Board of Pharmacy, make a determination as to whether the covered prescription drug meets the definition of a specialty drug;

9.2.1.h. Limit a beneficiary's access to specialty drugs;

9.2.1.i. Require a beneficiary, as a condition of payment or reimbursement, to purchase pharmacy services, including but not limited to prescription drugs, exclusively through a mail-order pharmacy; or

9.2.1.j. Impose upon a beneficiary any co-payment, amount of reimbursement, restriction upon the number of days of a drug supply for which reimbursement will be allowed, or any other payment or condition relating to purchasing pharmacy services from any pharmacy, including but not limited to prescription drugs, that is more costly or more restrictive to the beneficiary than that which would be imposed upon the beneficiary if such services were purchased from a mail-order pharmacy or any other pharmacy that is willing to provide the same services or products for the same cost and copayment as any mail-order service.

9.3. Notification.

9.3.1. If a health benefit plan restricts pharmacy participation through a network, the health benefit plan shall notify, in writing, all pharmacies within the geographic coverage area of the health benefit plan and offer those pharmacies the opportunity to participate in the health benefit plan's network. Notification shall be provided at least 60 days prior to the effective date of the health benefit plan, or, if the plan is in effect at the time this rule becomes effective, at least 60 days prior to the plan's renewal.

9.3.2. All pharmacies in the coverage area shall be eligible to participate in the network under identical reimbursement terms for providing pharmacy services, including prescription drugs.

9.3.3. Participating pharmacies shall be entitled to 30 business days effective date notice for any subsequent contract amendment or provider manual change by a health benefit plan or a PBM.

9.3.4. A health benefit plan shall inform the beneficiaries of the plan of the names and locations of pharmacies that are participating in the health benefit plan's network. Notification to beneficiaries should be provided through reasonable means, on a timely basis and at regular intervals. For purposes of this subsection, "reasonable means" may include written or electronic communications to beneficiaries by a health benefit plan, as well as publication on the health benefit plan's publicly available website. For purposes of this subsection, "regular intervals" should include notification to beneficiaries during a health benefit plan's open enrollment period and at least on a quarterly basis.

9.3.5. Participating pharmacies shall be entitled to announce their participation in a health benefit plan's network to their customers through a means acceptable to the pharmacy and the health benefit plan.

9.3.6. The notification provisions of this section shall not apply when an individual or group is enrolled in a health benefit plan, but when the health benefit plan enters a new county of the state.

9.4. Injunctive relief.

9.4.1. Any covered individual or pharmacy injured by a violation of section 9 of this rule may maintain a cause of action against a PBM or health benefit plan to enjoin the continuance of any such violation by filing a complaint in the Circuit Court of Kanawha County, or in any county in which the PBM or health benefit plan has committed the violation.

9.4.2. The Commissioner does not need to be made party to any complaint for injunctive relief filed against a PBM or health benefit plan, but may intervene in the lawsuit if he or she deems intervention necessary to enforce the provisions of this rule or of Article 51, Chapter 33 of the West Virginia Code.

9.4.3. The covered individual or pharmacy filing for injunctive relief shall provide a courtesy copy of the lawsuit to the Commissioner in order for the Commissioner to make a decision on intervention and to ensure administrative enforcement of this rule or of Article 51, Chapter 33 of the West Virginia Code.

9.4.4. The filing of an injunction against a health benefit plan for alleged violations of Article 51, Chapter 33 of the West Virginia Code or this rule does not alone affect any license or Certificate of Authority held by an insurer otherwise duly licensed in this state without separate regulatory action undertaken by the Commissioner.

W. Va. Code R. § 114-99-9