Florida Senate - 2019 CS for CS for SB 1180 By the Committees on Health Policy; and Banking and Insurance; and Senators Mayfield and Harrell 588-04046-19 20191180c2 1 A bill to be entitled 2 An act relating to prescription drug formulary 3 consumer protection; creating s. 627.42393, F.S.; 4 requiring insurers issuing individual or group health 5 insurance policies to provide certain notices to 6 current and prospective insureds within a certain 7 timeframe before the effective date of any change to a 8 prescription drug formulary during a policy year; 9 specifying requirements for a notice of medical 10 necessity that an insured’s treating physician may 11 submit to the insurer within a certain timeframe; 12 specifying means by which the notice is to be 13 submitted; requiring the Financial Services Commission 14 to adopt a certain rule; specifying a requirement and 15 prohibited acts relating to coverage changes by an 16 insurer if the treating physician provides certain 17 certification; providing construction and 18 applicability; amending s. 627.6699, F.S.; requiring 19 small employer carriers to comply with certain 20 requirements for any change to a prescription drug 21 formulary under the health benefit plan; amending s. 22 641.31, F.S.; requiring health maintenance 23 organizations to provide certain notices to current 24 and prospective subscribers within a certain timeframe 25 before the effective date of any change to a 26 prescription drug formulary during a contract year; 27 specifying requirements for a notice of medical 28 necessity that a subscriber’s treating physician may 29 submit to the health maintenance organization within a 30 certain timeframe; specifying means by which the 31 notice is to be submitted; requiring the commission to 32 adopt a certain rule; specifying a requirement and 33 prohibited acts relating to coverage changes by a 34 health maintenance organization if the treating 35 physician provides certain certification; providing 36 construction and applicability; providing a 37 declaration of important state interest; providing an 38 effective date. 39 40 Be It Enacted by the Legislature of the State of Florida: 41 42 Section 1. Section 627.42393, Florida Statutes, is created 43 to read: 44 627.42393 Health insurance policies; changes to 45 prescription drug formularies; requirements.— 46 (1) At least 60 days before the effective date of any 47 change to a prescription drug formulary during a policy year, an 48 insurer issuing individual or group health insurance policies in 49 this state shall: 50 (a) Provide general notification of the change in the 51 formulary to current and prospective insureds in a readily 52 accessible format on the insurer’s website; and 53 (b) Notify, electronically or by first-class mail, any 54 insured currently receiving coverage for a prescription drug for 55 which the formulary change modifies coverage and the insured’s 56 treating physician, including information on the specific drugs 57 involved and a statement that the submission of a notice of 58 medical necessity by the insured’s treating physician to the 59 insurer at least 30 days before the effective date of the 60 formulary change will result in continuation of coverage at the 61 existing level. 62 (2) The notice provided by the treating physician to the 63 insurer must include a completed one-page form in which the 64 treating physician certifies to the insurer that coverage of the 65 prescription drug for the insured is medically necessary. The 66 treating physician shall submit the notice electronically or by 67 first-class mail. The insurer may provide the treating physician 68 with access to an electronic portal through which the treating 69 physician may electronically file the notice. The commission 70 shall prescribe a form by rule for the notice. 71 (3) If the treating physician certifies to the insurer, in 72 accordance with subsection (2), that the prescription drug is 73 medically necessary for the insured, the insurer: 74 (a) Must authorize coverage for the prescribed drug based 75 solely on the treating physician’s certification that coverage 76 is medically necessary; and 77 (b) May not modify the coverage related to the covered drug 78 by: 79 1. Increasing the out-of-pocket costs for the covered drug; 80 2. Moving the covered drug to a more restrictive tier; or 81 3. Denying an insured coverage of the drug for which the 82 insured has been previously approved for coverage by the 83 insurer. 84 (4) This section does not: 85 (a) Prohibit the addition of prescription drugs to the list 86 of drugs covered under the policy during the policy year. 87 (b) Apply to a grandfathered health plan as defined in s. 88 627.402 or to benefits specified in s. 627.6513(1)-(14). 89 (c) Alter or amend s. 465.025, which provides conditions 90 under which a pharmacist may substitute a generically equivalent 91 drug product for a brand name drug product. 92 (d) Alter or amend s. 465.0252, which provides conditions 93 under which a pharmacist may dispense a substitute biological 94 product for the prescribed biological product. 95 (e) Apply to a Medicaid managed care plan under part IV of 96 chapter 409. 97 Section 2. Paragraph (e) of subsection (5) of section 98 627.6699, Florida Statutes, is amended to read: 99 627.6699 Employee Health Care Access Act.— 100 (5) AVAILABILITY OF COVERAGE.— 101 (e) All health benefit plans issued under this section must 102 comply with the following conditions: 103 1. For employers who have fewer than two employees, a late 104 enrollee may be excluded from coverage for no longer than 24 105 months if he or she was not covered by creditable coverage 106 continually to a date not more than 63 days before the effective 107 date of his or her new coverage. 108 2. Any requirement used by a small employer carrier in 109 determining whether to provide coverage to a small employer 110 group, including requirements for minimum participation of 111 eligible employees and minimum employer contributions, must be 112 applied uniformly among all small employer groups having the 113 same number of eligible employees applying for coverage or 114 receiving coverage from the small employer carrier, except that 115 a small employer carrier that participates in, administers, or 116 issues health benefits pursuant to s. 381.0406 which do not 117 include a preexisting condition exclusion may require as a 118 condition of offering such benefits that the employer has had no 119 health insurance coverage for its employees for a period of at 120 least 6 months. A small employer carrier may vary application of 121 minimum participation requirements and minimum employer 122 contribution requirements only by the size of the small employer 123 group. 124 3. In applying minimum participation requirements with 125 respect to a small employer, a small employer carrier shall not 126 consider as an eligible employee employees or dependents who 127 have qualifying existing coverage in an employer-based group 128 insurance plan or an ERISA qualified self-insurance plan in 129 determining whether the applicable percentage of participation 130 is met. However, a small employer carrier may count eligible 131 employees and dependents who have coverage under another health 132 plan that is sponsored by that employer. 133 4. A small employer carrier shall not increase any 134 requirement for minimum employee participation or any 135 requirement for minimum employer contribution applicable to a 136 small employer at any time after the small employer has been 137 accepted for coverage, unless the employer size has changed, in 138 which case the small employer carrier may apply the requirements 139 that are applicable to the new group size. 140 5. If a small employer carrier offers coverage to a small 141 employer, it must offer coverage to all the small employer’s 142 eligible employees and their dependents. A small employer 143 carrier may not offer coverage limited to certain persons in a 144 group or to part of a group, except with respect to late 145 enrollees. 146 6. A small employer carrier may not modify any health 147 benefit plan issued to a small employer with respect to a small 148 employer or any eligible employee or dependent through riders, 149 endorsements, or otherwise to restrict or exclude coverage for 150 certain diseases or medical conditions otherwise covered by the 151 health benefit plan. 152 7. An initial enrollment period of at least 30 days must be 153 provided. An annual 30-day open enrollment period must be 154 offered to each small employer’s eligible employees and their 155 dependents. A small employer carrier must provide special 156 enrollment periods as required by s. 627.65615. 157 8. A small employer carrier shall comply with s. 627.42393 158 for any change to a prescription drug formulary. 159 Section 3. Subsection (36) of section 641.31, Florida 160 Statutes, is amended to read: 161 641.31 Health maintenance contracts.— 162 (36) Except as provided in paragraphs (a), (b), and (c), a 163 health maintenance organization may increase the copayment for 164 any benefit, or delete, amend, or limit any of the benefits to 165 which a subscriber is entitled under the group contract only, 166 upon written notice to the contract holder at least 45 days in 167 advance of the time of coverage renewal. The health maintenance 168 organization may amend the contract with the contract holder, 169 with such amendment to be effective immediately at the time of 170 coverage renewal. The written notice to the contract holder must 171
shallspecifically identify any deletions, amendments, or 172 limitations to any of the benefits provided in the group 173 contract during the current contract period which will be 174 included in the group contract upon renewal. This subsection 175 does not apply to any increases in benefits. The 45-day notice 176 requirement does shallnot apply if benefits are amended, 177 deleted, or limited at the request of the contract holder. 178 (a) At least 60 days before the effective date of any 179 change to a prescription drug formulary during a contract year, 180 the health maintenance organization shall: 181 1. Provide general notification of the change in the 182 formulary to current and prospective subscribers in a readily 183 accessible format on the health maintenance organization’s 184 website; and 185 2. Notify, electronically or by first-class mail, any 186 subscriber currently receiving coverage for a prescription drug 187 for which the formulary change modifies coverage and the 188 subscriber’s treating physician, including information on the 189 specific drugs involved and a statement that the submission of a 190 notice of medical necessity by the subscriber’s treating 191 physician to the health maintenance organization at least 30 192 days before the effective date of the formulary change will 193 result in continuation of coverage at the existing level. 194 (b) The notice provided by the treating physician to the 195 insurer must include a completed one-page form in which the 196 treating physician certifies to the health maintenance 197 organization that coverage of the prescription drug for the 198 subscriber is medically necessary. The treating physician shall 199 submit the notice electronically or by first-class mail. The 200 health maintenance organization may provide the treating 201 physician with access to an electronic portal through which the 202 treating physician may electronically file the notice. The 203 commission shall prescribe a form by rule for the notice. 204 (c) If the treating physician certifies to the health 205 maintenance organization, in accordance with paragraph (b), that 206 the prescription drug is medically necessary for the subscriber, 207 the health maintenance organization: 208 1. Must authorize coverage for the prescribed drug based 209 solely on the treating physician’s certification that coverage 210 is medically necessary; and 211 2. May not modify the coverage related to the covered drug 212 by: 213 a. Increasing the out-of-pocket costs for the covered drug; 214 b. Moving the covered drug to a more restrictive tier; or 215 c. Denying a subscriber coverage of the drug for which the 216 subscriber has been previously approved for coverage by the 217 health maintenance organization. 218 (d) Paragraphs (a), (b), and (c) do not: 219 1. Prohibit the addition of prescription drugs to the list 220 of drugs covered under the contract during the contract year. 221 2. Apply to a grandfathered health plan as defined in s. 222 627.402 or to benefits specified in s. 627.6513(1)-(14). 223 3. Alter or amend s. 465.025, which provides conditions 224 under which a pharmacist may substitute a generically equivalent 225 drug product for a brand name drug product. 226 4. Alter or amend s. 465.0252, which provides conditions 227 under which a pharmacist may dispense a substitute biological 228 product for the prescribed biological product. 229 5. Apply to a Medicaid managed care plan under part IV of 230 chapter 409. 231 Section 4. The Legislature finds that this act fulfills an 232 important state interest. 233 Section 5. This act shall take effect January 1, 2020.