I.
AUTHORITY
This Rule is issued by the Arkansas Insurance Commissioner
("Commissioner") under Ark. Code Ann. §
23-92-509(a)(2)(I), §
23-92-509(a)(2)(D) and §
23-92-509(b)(2)(A). Specifically, under the
permissive rule authority of these code provisions, the Commissioner is
authorized to adopt rules without limitation to implement the Arkansas Pharmacy
Benefits Manager Licensure Act ("PBMLA") for compensation and pharmacy benefits
manager network adequacy. In addition, as it applies to health benefit plans,
this Rule is issued under the authority of Ark. Code Ann. §
23-61-108(b)(1) that permits the promulgation of rules necessary for the
effective regulation of the business of insurance to be in compliance with
federal laws, namely Section 2702(c) of the Public Health Service Act and 45 CFR §
156.230 which require that Qualified Health Plans provide
sufficiently accessible medical providers that include pharmacies.
II
DEFINITIONS
Unless otherwise defined in this Section, the definitions in
the PBMLA shall apply to the provisions in this Rule.
A. "Fair and Reasonable Pharmacy Compensation
Program" shall mean the Arkansas Insurance Commissioner's determination of
whether a current or proposed health benefit plan's pharmacy reimbursements
result in an adequate network of pharmacies for a health benefit
plan.
B. "Subscriber" shall mean an
insured, enrollee or certificate holder of a health benefit plan as defined
under Ark. Code Ann. §
23-92-503(2).
III.
APPLICABILTY
This Rule applies to all health benefit plans as defined in
Ark. Code Ann. § 23-92503(2) and healthcare payors as defined in Ark. Code
Ann. §
23-92-503(3). The requirements of this Rule shall not apply to
federally regulated health benefit plans restricted from state regulation under
federal law or those health benefit plans which are exempted from state
regulation under state law.
IV.
FAIR AND REASONABLE
REIMBURSEMENTS
A. Pursuant to Ark. Code
Ann. §
23-92-506(a)(l), the Commissioner may review and approve the
compensation program of a pharmacy benefits manager ("PBM") from a health
benefit plan to ensure that the reimbursement for pharmacist services paid to a
pharmacist or pharmacy is fair and reasonable to provide an adequate pharmacy
benefits manager network for a health benefit plan. The provisions of this Rule
are specifically issued related to cost processes, and not plan benefit design,
to help ensure the subject of network adequacy or reasonably sustainable
network adequacy of pharmacy services for health benefit plans.
B. The Commissioner finds that current
pharmacy reimbursement minimums under the PBMLA, or payments within a close
range to minimums of National Average Drug Acquisition Cost ("NADAC"), or
maximum allowable cost ("MAC"), that do not also include a reasonable cost to
dispense to pharmacies may impair the sustainability of network adequacy for
pharmacy services for health benefit plans.
C. To ensure an adequate network of pharmacy
services for a health benefit plan, or to ensure a reasonably sustainable
adequate network for such services, a health benefit plan, through its pharmacy
benefits plan or program, may be required to include a fair and reasonable cost
to dispense to pharmacies in its administration of drug benefits under its
health benefit plan upon and after a review of whether it has a fair and
reasonable pharmacy compensation program to ensure an adequate network of
pharmacies. For health benefit plans that are required to pay an additional
dispensing cost under this Rule, a health benefit plan may not require a
subscriber to pay for the dispensing cost outside of the amounts the health
benefit plan has designated as the copay, co-insurance and deductible. Every
health benefit plan or healthcare payor subject to the Arkansas Pharmacy
Benefits Manager Licensure Act shall file with the Commissioner, beginning on
November 30, 2024, and no later than by February 17, 2025, a written report
describing each healthcare payor's pharmacy compensation data as required by
Bulletin # 18-2024 by AID. This requirement shall apply to plan year 2025 and
thereafter on such dates as mandated by the AID implementation Bulletin #
18-2024. Upon receipt of the data as required by AID Bulletin# 18-2024, the
Commissioner is authorized to require an additional dispensing cost if the
health benefit plan does not already provide a fair and reasonable pharmacy
compensation program to ensure an adequate network of pharmacies. The
Commissioner shall be authorized to review, approve or deny such dispensing
cost requirement, in consultation with the actuary for the Arkansas Insurance
Department ("AID"). The Commissioner shall make his or her decision to approve
or deny such cost calculation within twenty (20) working days of receipt of
such report from a healthcare payor and notify the submitting healthcare payor
of his or her decision in writing. The Commissioner may extend such time
periods for his or her decision in the event that the Commissioner needs
additional data from the healthcare payor. The Commissioner shall issue a
bulletin with the promulgation of this Rule more specifically addressing the
format, procedures and information requirements required for such submissions
as required under this Section of this Rule. Bulletin (18-2024) is hereby
incorporated as part of this Rule. This Bulletin shall not be amended without
filing such amendments as an amended promulgation of this Rule.
D. Confidentiality of Data Required By AID
Bulletin. Pursuant to Ark. Code Ann. §
23-92-506(a)(2), all data acquired
by AID for review of a pharmacy compensation program under Rule 128 or this
Bulletin shall be considered proprietary and confidential under Ark. Code Ann.
§
23-61-107(a) (4) and §
23-61-207; and shall not be subject to the
Arkansas Freedom of Information Act of 1967, §
25-19-101 et seq. However,
the average dispensing fee per healthcare payor that is approved will be
published annually.
E. Upon its
adoption by the Arkansas Legislative Council, and legal effective date, this
permanent rule shall replace any earlier issued emergency rule.
F. For health plan calendar year 2025, for
health benefit plans required to pay an additional dispensing cost under this
rule, the requirement shall apply only on a going forward or prospective basis
to drug reimbursements by the plan that calendar year, thirty (30) days from
the date of the written decision requiring the dispensing cost from the
Insurance Commissioner. For health plan calendar years 2026 and thereafter,
such dispensing costs if required, shall apply on 1-1 of each year for which
the review is submitted.
V.
VIOLATIONS
Violations of any provision of this Rule shall be subject to
the fines or penalties under Ark. Code Ann. §
23-92-508.
VI.
EFFECTIVE DATE
This Rule is effective after review and approval by the
Arkansas Legislative Council, ten (10) days after filing of the approved Rule
with the Arkansas Secretary of State.
