02-031 C.M.R. ch. 210, § 5 - Oversight and Contracting Responsibilities

1. Fiduciary Duty

A. A carrier that contracts with a PBM must ensure that the contract specifies that the PBM acts as the carrier's agent in administering the carrier's prescription drug benefits, and owes a fiduciary duty to the carrier that obligates the PBM to:

(1) Act prudently and solely in the best interest of the carrier in its management of activities related to the carrier's prescription drug benefits;

(2) Account for and disclose to the carrier all compensation that it receives so that the carrier may use it in compliance with subsection 2; and

(3) Ensure compliance with all other requirements of this rule and other applicable law.

B. A carrier that contracts with a PBM shall file proof, satisfactory to the Superintendent, that the contract complies with this subsection. An image of a signed Agreement Concerning Fiduciary Obligations in a form specified by the Superintendent shall constitute sufficient proof of compliance. Proof of compliance shall be filed within 30 days after entering into a contractual relationship with a PBM, or within 30 days after the effective date of this rule for existing relationships. Contractual language filed in accordance with this paragraph may not be rescinded or amended without advance notice to the Superintendent.

2. Compensation for the Benefit of Covered Persons

All compensation remitted directly or indirectly by a pharmaceutical manufacturer, developer, or labeler to a carrier, or to a PBM under contract with a carrier, including but not limited to spread pricing or pharmaceutical rebates, must either be applied directly to reduce the covered person's out-of-pocket cost or used by the carrier in its plan design to reduce premiums.

3. Covered Person's Right to Waive Coverage and Pay Cash

A carrier, a PBM under contract with a carrier, or any other person acting on a carrier's behalf must allow a pharmacy provider to accept the provider's cash price from a covered person for a prescription drug, in lieu of filing a claim with the covered person's carrier, if the cash price is less than the covered person's cost sharing amount.

4. Pharmacy Provider's Right to Provide Information

A carrier, a PBM under contract with a carrier, or any other person acting on a carrier's behalf may not prevent or restrict a pharmacy provider from providing information required by law to a state or federal agency, a law enforcement agency, or the Superintendent.

Notes

02-031 C.M.R. ch. 210, § 5