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.
II.
STATEMENT OF EMERGENCY
The Commissioner hereby finds under Ark. Code Ann. §
25-15-204(b)(l)
that a public emergency exists to require changes to pharmacy reimbursement
standards from health benefit plans in order to ensure reasonably sustainable
network adequacy for pharmacy services in this State.
III.
DEFINITIONS
Unless otherwise defined in this Section, the definitions in
the PBMLA shall apply to the provisions in this Rule.
A. "Fair and reasonable cost to dispense"
shall mean the Arkansas Insurance Commissioner's determination of an adequate
price or amount for the dispensing of a drug by a pharmacy giving due regard
for the cost factors of labor, supplies and other administrative costs of a
pharmacy associated with the dispensing of a drug to a subscriber of 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).
IV.
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).
V.
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 impairs 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, shall include a fair and reasonable cost to dispense
to pharmacies in its administration of drug benefits under its health benefit
plan. A fair and reasonable cost to dispense shall be calculated commiserate
with the time, labor, supplies, and other administrative costs associated with
the dispensing of the drug by the pharmacy. This cost to dispense shall be
uniform or equally applied to all pharmacies servicing the health benefit plan.
No health insurer, and no pharmacy benefits manager ("PBM") administrating drug
benefits for health benefit plans shall recoup or recover any increased costs
to dispense from a subscriber at the point of sale through increased
cost-sharing requirement ratios or percentages ("co-insurance, co-payment, or
deductibles") on the health benefits plan member. For the first calendar year
for 2025, every health insurer shall file with the Commissioner, no later than
by November 30, 2024, a written report describing each healthcare payor's
calculation amount, and methodology for such calculation, of the cost to
dispense as required by this Rule. This requirement shall apply to plan year
2025 and thereafter, for each succeeding plan year after 2025, a health insurer
shall submit such report on or before March 1 to apply for that next plan year.
All data and materials submitted for such reports shall be deemed confidential,
proprietary and not subject to the Arkansas Freedom of Information
Act.
D. The Commissioner shall be
authorized to review, approve or deny such cost to dispense calculation, 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 in writing 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 within twenty (20) working days from receipt of
such report. The Commissioner shall issue a bulletin more specifically
addressing the procedures, timing, objection procedures, format and other
information requirements required for such submissions as required under this
Section of this Rule.
E. The
Commissioner requests that the health benefit plans and healthcare payors
strive to reduce any additional costs, associated with the costs to dispense as
required by this Rule, by applying all unused brand name rebates to such costs,
remaining after compliance with Act 333 of 2023 under the Healthcare Insurer
Share the Savings Act, codified at Ark. Code Ann. §
23-79-2501 et seq., and the
Pharmacy Benefits Manager Share the Savings Act, codified at Ark. Code Ann.
§
23-92-704 et
seq.
VI.
VIOLATIONS
Violations of any provision of this Rule shall be subject to
the fines or penalties under Ark. Code Ann. §
23-92-508.
VII.
EFFECTIVE DATE
This Rule shall be effective upon approval by the Arkansas
Legislative Council and thereafter remain in effect for 120 days unless earlier
replaced by a permanent Rule.
