HB 2333

This bill prohibits a pharmacy benefits manager from engaging in any of the following conduct:  Exercis ing authority to modify, restrict, or deny a medication ordered by a n individual authorized by law to prescribe drugs (" healthcare prescriber "") unless the healthcare prescriber has initiated a request for a formulary exception or prior authorization, which such a request must be granted or denied within 24 hours for an exigent or urgent clinical circumstance or within 72 hours for a non-urgent request. If a pharmacy benefits manager fails to respond within such time, then the request is deemed approved.  Impos ing requirements that delay or prevent a healthcare prescriber from prescribing or modifying a medication based solely on clinical judgment .  Enforc ing or requir ing a policy that interferes with the prescribing authority of a healthcare prescriber .  Requir ing a healthcare prescriber to obtain prior approval or perform a utilization management activity that directly alters, delays, or denies a medication unless authorized by a patient's health plan .  Exercis ing, implement ing, or enforc ing any authority restricted under this bill through delegation, incorporation by reference, or contractual authorization contained in a health plan, plan document, or benefit design, unless such authority is expressly permitted by this bill.  Structur ing formularies, cost-sharing requirements, tier placement, or utilization management criteria in a manner that has the purpose or effect of circumventing the prescribing protections of this bill, including through excessive cost-sharing or non-medical formulary exclusions. This bill provides that only a healthcare prescriber may issue, modify, or discontinue a medication. Further, any provision of a health plan or contract that purports to grant a pharmacy benefits manager authority in conflict with this bill is void and unenforceable as contrary to the public policy of this state. If a healthcare prescriber determines that a medication is medically necessary, then this bill requires the pharmacy benefits manager to ensure that a clinically appropriate and affordable access pathway exists for the patient. DISPENSING REQUIREMENTS This bill requires a pharmacist to dispense a medication only upon presentation of a valid prescription issued by a healthcare prescriber. However, a pharmacist is not required to obtain additional approval from a pharmacy benefits manager for dispensing medication. RETALIATORY ACTION PROHIBITED This bill prohibits a pharmacy benefits manager from tak ing retaliatory action against a pharmacy or healthcare prescriber for exercising rights pursuant to this bill. As used in this paragraph, a ""retaliatory action"" includes n etwork termination or exclusion, r eimbursement reductions, t argeted audits, p erformance or quality penalties, or a delay of claims processing. If such a n action as listed in the prior sentence occurs within 180 days of an activity protected pursuant to this bill, then the action i s presumed to be a retaliatory action and the pharmacy benefits manager bears the burden of proving by clear and convincing evidence that the action was not retaliatory. DISCLOSURES This bill authorizes the department of commerce and insurance or the department of health to request a pharmacy benefits manager operating in this state to disclose (i) the terms and conditions of any contract the pharmacy benefits manager has with a pharmacy and payer, including all formulary and prior authorization policies and (ii) a ny rebate and fee arrangements that may influence formulary decisions. If the department of commerce and insurance or the department of health requests such information, th en the pharmacy benefits manager must disclose such information to the requesting department within 10 days. ANNUAL REPORT This bill requires a pharmacy benefits manager operating in this state to report annually to the department of commerce and insurance (i) the average prior authorization response times, ( ii ) t he approval rates compared to the denial rates, ( iii ) t he number of formulary exception requests, and ( iv ) t he aggregate rebate and fee categories. VIOLATIONS This bill provides that a violation of this bill constitutes an unfair trade practice under the Tennessee Unfair Practices and Unfair Claims Settlement Act of 2009 . The department of commerce and insurance may impose a civil penalty not to exceed $10, 000 per violation. A pharmacy or healthcare prescriber harmed by a violation may also bring a civil action for injunctive relief and actual damages. EXEMPTED PLANS This bill provides that its provisions do not apply to or affect a plan governed by the federal Employer Retirement Income Security Act of 1974 (ERISA) or the administrator of such plan. Further, this bill exempts such plans from the entirety of present law relative to pharmacy benefits managers. RULEMAKING This bill authorizes t he department of commerce and insurance and the department of health to promulgate rules to effectuate this bill ."