Florida Senate - 2023                      CS for CS for SB 1550
       
       
        
       By the Committees on Fiscal Policy; and Health Policy; and
       Senators Brodeur, Rodriguez, Wright, and Perry
       
       
       
       
       594-03810-23                                          20231550c2
    1                        A bill to be entitled                      
    2         An act relating to prescription drugs; providing a
    3         short title; amending s. 499.005, F.S.; specifying
    4         additional prohibited acts related to the Florida Drug
    5         and Cosmetic Act; amending s. 499.012, F.S.; providing
    6         that prescription drug manufacturer and nonresident
    7         prescription drug manufacturer permitholders are
    8         subject to specified requirements; creating s.
    9         499.026, F.S.; defining terms; requiring certain drug
   10         manufacturers to notify the Department of Business and
   11         Professional Regulation of reportable drug price
   12         increases on a specified form on the effective date of
   13         such increase; providing requirements for the form;
   14         providing construction; requiring such manufacturers
   15         to submit certain reports to the department by a
   16         specified date each year; providing requirements for
   17         the reports; authorizing the department to request
   18         certain additional information from the manufacturer
   19         before approving the report; requiring the department
   20         to submit the forms and reports to the Agency for
   21         Health Care Administration to be posted on the
   22         agency’s website; prohibiting the agency from posting
   23         on its website certain submitted information that is
   24         marked as a trade secret; requiring the agency to
   25         compile all information from the submitted forms and
   26         reports and make it available to the Governor and the
   27         Legislature upon request; prohibiting manufacturers
   28         from claiming a public records exemption for trade
   29         secrets for certain information provided in such forms
   30         or reports; providing that department employees remain
   31         protected from liability for releasing the forms and
   32         reports as public records; authorizing the department,
   33         in consultation with the agency, to adopt rules;
   34         providing for emergency rulemaking; amending s.
   35         624.307, F.S.; requiring the Division of Consumer
   36         Services of the Department of Financial Services to
   37         designate an employee as the primary contact for
   38         consumer complaints involving pharmacy benefit
   39         managers; requiring the division to refer certain
   40         complaints to the Office of Insurance Regulation;
   41         amending s. 624.490, F.S.; revising the definition of
   42         the term “pharmacy benefit manager”; amending s.
   43         624.491, F.S.; revising provisions related to pharmacy
   44         audits; amending s. 626.88, F.S.; revising the
   45         definition of the term “administrator”; defining the
   46         term “pharmacy benefit manager”; amending s. 626.8805,
   47         F.S.; providing a grandfathering provision for certain
   48         pharmacy benefit managers operating as administrators;
   49         providing a penalty for certain persons who do not
   50         hold a certificate of authority to act as an
   51         administrator on or after a specified date; requiring
   52         the office to submit a report detailing specified
   53         information to the Governor and the Legislature by a
   54         specified date; providing additional requirements for
   55         pharmacy benefit managers applying for a certificate
   56         of authority to act as an administrator; exempting
   57         pharmacy benefit managers from certain fees; amending
   58         s. 626.8814, F.S.; requiring pharmacy benefit managers
   59         to identify certain ownership affiliations to the
   60         office; requiring pharmacy benefit managers to report
   61         any change in such information to the office within a
   62         specified timeframe; creating s. 626.8825, F.S.;
   63         defining terms; providing requirements for certain
   64         contracts between a pharmacy benefit manager and a
   65         pharmacy benefits plan or program; requiring pharmacy
   66         benefits plans and programs, beginning on a specified
   67         date, to annually submit a certain attestation to the
   68         office; providing requirements for certain contracts
   69         between a pharmacy benefit manager and a participating
   70         pharmacy; requiring the Financial Services Commission
   71         to adopt rules; specifying requirements for certain
   72         administrative appeal procedures that such contracts
   73         with participating pharmacies must include; requiring
   74         pharmacy benefit managers to submit reports on
   75         submitted appeals to the office every 90 days;
   76         creating s. 626.8827, F.S.; specifying prohibited
   77         practices for pharmacy benefit managers; creating s.
   78         626.8828, F.S.; authorizing the office to investigate
   79         administrators that are pharmacy benefit managers and
   80         certain applicants; requiring the office to review
   81         certain referrals and investigate them under certain
   82         circumstances; providing for biennial reviews of
   83         pharmacy benefit managers; requiring the office to
   84         submit an annual report of its examinations to the
   85         Governor and the Legislature by a specified date;
   86         providing requirements for the report, including
   87         specified additional requirements for the biennial
   88         reports; authorizing the office to conduct additional
   89         examinations; requiring the office to conduct an
   90         examination under certain circumstances; providing
   91         procedures and requirements for such examinations;
   92         defining the terms “contracts” and “knowing and
   93         willful”; providing that independent professional
   94         examiners under contract with the office may conduct
   95         examinations of pharmacy benefit managers; requiring
   96         the commission to adopt specified rules; specifying
   97         provisions that apply to such investigations and
   98         examinations; providing recordkeeping requirements for
   99         pharmacy benefit managers; authorizing the office to
  100         order the production of such records and other
  101         specified information; authorizing the office to take
  102         statements under oath; requiring pharmacy benefit
  103         managers and applicants subjected to an investigation
  104         or examination to pay the associated expenses;
  105         specifying covered expenses; providing for collection
  106         of such expenses; providing for the deposit of certain
  107         moneys into the Insurance Regulatory Trust Fund;
  108         authorizing the office to pay examiners,
  109         investigators, and other persons from such fund;
  110         providing administrative penalties; providing grounds
  111         for administrative action against a certificate of
  112         authority; amending s. 626.89, F.S.; requiring
  113         pharmacy benefit managers to notify the office of
  114         specified complaints, settlements, or discipline
  115         within a specified timeframe; requiring pharmacy
  116         benefit managers to annually submit a certain
  117         attestation statement to the office; amending s.
  118         627.42393, F.S.; providing that certain step-therapy
  119         protocol requirements apply to a pharmacy benefit
  120         manager acting on behalf of a health insurer; amending
  121         ss. 627.64741 and 627.6572, F.S.; conforming
  122         provisions to changes made by the act; amending s.
  123         641.31, F.S.; providing that certain step-therapy
  124         protocol requirements apply to a pharmacy benefit
  125         manager acting on behalf of a health maintenance
  126         organization; amending s. 641.314, F.S.; conforming a
  127         provision to changes made by the act; providing
  128         legislative intent, construction, and severability;
  129         providing appropriations and authorizing positions;
  130         providing an effective date.
  131          
  132  Be It Enacted by the Legislature of the State of Florida:
  133  
  134         Section 1. This act may be cited as the “Prescription Drug
  135  Reform Act.”
  136         Section 2. Subsection (29) is added to section 499.005,
  137  Florida Statutes, to read:
  138         499.005 Prohibited acts.—It is unlawful for a person to
  139  perform or cause the performance of any of the following acts in
  140  this state:
  141         (29) Failure to accurately complete and timely submit
  142  reportable drug price increase forms, reports, and documents as
  143  required by s. 499.026 and rules adopted thereunder.
  144         Section 3. Subsection (16) is added to section 499.012,
  145  Florida Statutes, to read:
  146         499.012 Permit application requirements.—
  147         (16)A permit for a prescription drug manufacturer or a
  148  nonresident prescription drug manufacturer is subject to the
  149  requirements of s. 499.026.
  150         Section 4. Section 499.026, Florida Statutes, is created to
  151  read:
  152         499.026 Notification of manufacturer prescription drug
  153  price increases.—
  154         (1)As used in this section, the term:
  155         (a)“Course of therapy” means the recommended daily dose
  156  units of a prescription drug pursuant to its prescribing label
  157  for 30 days or the recommended daily dose units of a
  158  prescription drug pursuant to its prescribing label for a normal
  159  course of treatment which is less than 30 days.
  160         (b)“Manufacturer” means a person holding a prescription
  161  drug manufacturer permit or a nonresident prescription drug
  162  manufacturer permit under s. 499.01.
  163         (c)“Prescription drug” has the same meaning as in s.
  164  499.003 and includes biological products but is limited to those
  165  prescription drugs and biological products intended for human
  166  use.
  167         (d)“Reportable drug price increase” means, for a
  168  prescription drug with a wholesale acquisition cost of at least
  169  $100 for a course of therapy before the effective date of an
  170  increase:
  171         1.Any increase of 15 percent or more of the wholesale
  172  acquisition cost during the preceding 12-month period; or
  173         2.Any cumulative increase of 30 percent or more of the
  174  wholesale acquisition cost during the preceding 3 calendar
  175  years. In calculating the 30 percent threshold, the manufacturer
  176  must base the calculation on the wholesale acquisition cost in
  177  effect at the end of the 3-year period as compared to the
  178  wholesale acquisition cost in effect at the beginning of the
  179  same 3-year period.
  180         (e)“Wholesale acquisition cost” means, with respect to a
  181  prescription drug or biological product, the manufacturer’s list
  182  price for the prescription drug or biological product to
  183  wholesalers or direct purchasers in the United States, not
  184  including prompt pay or other discounts, rebates, or reductions
  185  in price, for the most recent month for which the information is
  186  available, as reported in wholesale price guides or other
  187  publications of drug or biological product pricing data.
  188         (2)On the effective date of a manufacturer’s reportable
  189  drug price increase, the manufacturer must provide notification
  190  of each reportable drug price increase to the department on a
  191  form prescribed by the department. The form must require the
  192  manufacturer to specify all of the following:
  193         (a)The proprietary and nonproprietary names of the
  194  prescription drug, as applicable.
  195         (b)The wholesale acquisition cost before the reportable
  196  drug price increase.
  197         (c)The dollar amount of the reportable drug price
  198  increase.
  199         (d)The percentage amount of the reportable drug price
  200  increase from the wholesale acquisition cost before the
  201  reportable drug price increase.
  202         (e)Whether a change or an improvement in the prescription
  203  drug necessitates the reportable drug price increase.
  204         (f)If a change or an improvement in the prescription drug
  205  necessitates the reportable drug price increase as reported in
  206  paragraph (e), the manufacturer must describe the change or
  207  improvement.
  208         (g)The intended uses of the prescription drug.
  209  
  210  This subsection does not prohibit a manufacturer from notifying
  211  other parties, such as pharmacy benefit managers, of a drug
  212  price increase before the effective date of the drug price
  213  increase.
  214         (3)By April 1 of each year, each manufacturer shall submit
  215  a report to the department on a form prescribed by the
  216  department. A report is not deemed to be submitted until
  217  approved by the department. The report must include all of the
  218  following:
  219         (a)A list of all prescription drugs affected by a
  220  reportable drug price increase during the previous calendar year
  221  and both the dollar amount of each reportable drug price
  222  increase and the percentage increase of each reportable drug
  223  price increase relative to the previous wholesale acquisition
  224  cost of the prescription drug. The prescription drugs must be
  225  identified using their proprietary names and nonproprietary
  226  names, as applicable.
  227         (b)If more than one form has been filed under this section
  228  for previous reportable drug price increases, the percentage
  229  increase of the prescription drug from the earliest form filed
  230  to the most recent form filed.
  231         (c)The intended uses of each prescription drug listed in
  232  the report and whether the prescription drug manufacturer
  233  benefits from market exclusivity for such drug.
  234         (d)The length of time the prescription drug has been
  235  available for purchase.
  236         (e)A listing of the factors contributing to each
  237  reportable drug price increase. As used in this section, the
  238  term “factors” means any of the following: research and
  239  development; manufacturing costs; advertising and marketing;
  240  whether the drug has more competitive value; an increased rate
  241  of inflation or other economic dynamics; changes in market
  242  dynamics; supporting regulatory and safety commitments;
  243  operating patient assistance and educational programs; rebate
  244  increases, including any rebate increase requested by a pharmacy
  245  benefit manager; Medicaid, Medicare, or 340B Drug Pricing
  246  Program offsets; profit; or other factors. An estimated
  247  percentage of the influence of each listed factor must be
  248  provided to equal 100 percent.
  249         (f)A description of the justification for each factor
  250  referenced in paragraph (e) must be provided with such
  251  specificity as to explain the need or justification for each
  252  reportable drug price increase. The department may request
  253  additional information from a manufacturer relating to the need
  254  or justification for any reportable drug price increase before
  255  approving the manufacturer’s report.
  256         (g)Any action that the manufacturer has filed to extend a
  257  patent report after the first extension has been granted.
  258         (4)(a)The department shall submit all forms and reports
  259  submitted by manufacturers to the Agency for Health Care
  260  Administration, to be posted on the agency’s website pursuant to
  261  s. 408.062. The agency may not post on its website any of the
  262  information provided pursuant to paragraph (2)(f), paragraph
  263  (3)(f), or paragraph (3)(g) which is marked as a trade secret.
  264  The agency shall compile all information from the forms and
  265  reports submitted by manufacturers and make it available upon
  266  request to the Governor, the President of the Senate, and the
  267  Speaker of the House of Representatives.
  268         (b)Except for information provided pursuant to paragraph
  269  (2)(f), paragraph (3)(f), or paragraph (3)(g), a manufacturer
  270  may not claim a public records exemption for a trade secret
  271  under s. 119.0715 for any information required by the department
  272  under this section. Department employees remain protected from
  273  liability for release of forms and reports pursuant to s.
  274  119.0715(4).
  275         (5)The department, in consultation with the Agency for
  276  Health Care Administration, shall adopt rules to implement this
  277  section.
  278         (a)The department shall adopt necessary emergency rules
  279  pursuant to s. 120.54(4) to implement this section. If an
  280  emergency rule adopted under this section is held to be
  281  unconstitutional or an invalid exercise of delegated legislative
  282  authority and becomes void, the department may adopt an
  283  emergency rule pursuant to this section to replace the rule that
  284  has become void. If the emergency rule adopted to replace the
  285  void emergency rule is also held to be unconstitutional or an
  286  invalid exercise of delegated legislative authority and becomes
  287  void, the department must follow the nonemergency rulemaking
  288  procedures of the Administrative Procedure Act to replace the
  289  rule that has become void.
  290         (b)For emergency rules adopted under this section, the
  291  department need not make the findings required under s.
  292  120.54(4)(a). Emergency rules adopted under this section are
  293  also exempt from:
  294         1.Sections 120.54(3)(b) and 120.541. Challenges to
  295  emergency rules adopted under this section are subject to the
  296  time schedules provided in s. 120.56(5).
  297         2.Section 120.54(4)(c) and remain in effect until replaced
  298  by rules adopted under the nonemergency rulemaking procedures of
  299  the Administrative Procedure Act.
  300         Section 5. Paragraph (a) of subsection (10) of section
  301  624.307, Florida Statutes, is amended, and paragraph (b) of that
  302  subsection is republished, to read:
  303         624.307 General powers; duties.—
  304         (10)(a) The Division of Consumer Services shall perform the
  305  following functions concerning products or services regulated by
  306  the department or office:
  307         1. Receive inquiries and complaints from consumers.
  308         2. Prepare and disseminate information that the department
  309  deems appropriate to inform or assist consumers.
  310         3. Provide direct assistance to and advocacy for consumers
  311  who request such assistance or advocacy.
  312         4. With respect to apparent or potential violations of law
  313  or applicable rules committed by a person or an entity licensed
  314  by the department or office, report apparent or potential
  315  violations to the office or to the appropriate division of the
  316  department, which may take any additional action it deems
  317  appropriate.
  318         5. Designate an employee of the division as the primary
  319  contact for consumers on issues relating to sinkholes.
  320         6.Designate an employee of the division as the primary
  321  contact for consumers and pharmacies on issues relating to
  322  pharmacy benefit managers. The division must refer to the office
  323  any consumer complaint that alleges conduct that may constitute
  324  a violation of part VII of chapter 626 or for which a pharmacy
  325  benefit manager does not respond in accordance with paragraph
  326  (b).
  327         (b) Any person licensed or issued a certificate of
  328  authority by the department or the office shall respond, in
  329  writing, to the division within 20 days after receipt of a
  330  written request for documents and information from the division
  331  concerning a consumer complaint. The response must address the
  332  issues and allegations raised in the complaint and include any
  333  requested documents concerning the consumer complaint not
  334  subject to attorney-client or work-product privilege. The
  335  division may impose an administrative penalty for failure to
  336  comply with this paragraph of up to $2,500 per violation upon
  337  any entity licensed by the department or the office and $250 for
  338  the first violation, $500 for the second violation, and up to
  339  $1,000 for the third or subsequent violation upon any individual
  340  licensed by the department or the office.
  341         Section 6. Subsection (1) of section 624.490, Florida
  342  Statutes, is amended to read:
  343         624.490 Registration of pharmacy benefit managers.—
  344         (1) As used in this section, the term “pharmacy benefit
  345  manager” has the same meaning as in s. 626.88 means a person or
  346  entity doing business in this state which contracts to
  347  administer prescription drug benefits on behalf of a health
  348  insurer or a health maintenance organization to residents of
  349  this state.
  350         Section 7. Subsections (1) and (5) of section 624.491,
  351  Florida Statutes, are amended to read:
  352         624.491 Pharmacy audits.—
  353         (1) A pharmacy benefits plan or program as defined in s.
  354  626.8825 health insurer or health maintenance organization
  355  providing pharmacy benefits through a major medical individual
  356  or group health insurance policy or a health maintenance
  357  contract, respectively, must comply with the requirements of
  358  this section when the pharmacy benefits plan or program health
  359  insurer or health maintenance organization or any person or
  360  entity acting on behalf of the pharmacy benefits plan or program
  361  health insurer or health maintenance organization, including,
  362  but not limited to, a pharmacy benefit manager as defined in s.
  363  626.88 s. 624.490(1), audits the records of a pharmacy licensed
  364  under chapter 465. The person or entity conducting such audit
  365  must:
  366         (a) Except as provided in subsection (3), notify the
  367  pharmacy at least 7 calendar days before the initial onsite
  368  audit for each audit cycle.
  369         (b) Not schedule an onsite audit during the first 3
  370  calendar days of a month unless the pharmacist consents
  371  otherwise.
  372         (c) Limit the duration of the audit period to 24 months
  373  after the date a claim is submitted to or adjudicated by the
  374  entity.
  375         (d) In the case of an audit that requires clinical or
  376  professional judgment, conduct the audit in consultation with,
  377  or allow the audit to be conducted by, a pharmacist.
  378         (e) Allow the pharmacy to use the written and verifiable
  379  records of a hospital, physician, or other authorized
  380  practitioner, which are transmitted by any means of
  381  communication, to validate the pharmacy records in accordance
  382  with state and federal law.
  383         (f) Reimburse the pharmacy for a claim that was
  384  retroactively denied for a clerical error, typographical error,
  385  scrivener’s error, or computer error if the prescription was
  386  properly and correctly dispensed, unless a pattern of such
  387  errors exists, fraudulent billing is alleged, or the error
  388  results in actual financial loss to the entity.
  389         (g) Provide the pharmacy with a copy of the preliminary
  390  audit report within 120 days after the conclusion of the audit.
  391         (h) Allow the pharmacy to produce documentation to address
  392  a discrepancy or audit finding within 10 business days after the
  393  preliminary audit report is delivered to the pharmacy.
  394         (i) Provide the pharmacy with a copy of the final audit
  395  report within 6 months after the pharmacy’s receipt of the
  396  preliminary audit report.
  397         (j) Calculate any recoupment or penalties based on actual
  398  overpayments and not according to the accounting practice of
  399  extrapolation.
  400         (5) A pharmacy benefits plan or program health insurer or
  401  health maintenance organization that, under terms of a contract,
  402  transfers to a pharmacy benefit manager the obligation to pay a
  403  pharmacy licensed under chapter 465 for any pharmacy benefit
  404  claims arising from services provided to or for the benefit of
  405  an insured or subscriber remains responsible for a violation of
  406  this section.
  407         Section 8. Subsection (1) of section 626.88, Florida
  408  Statutes, is amended, and subsection (6) is added to that
  409  section, to read:
  410         626.88 Definitions.—For the purposes of this part, the
  411  term:
  412         (1) “Administrator” means is any person who directly or
  413  indirectly solicits or effects coverage of, collects charges or
  414  premiums from, or adjusts or settles claims on residents of this
  415  state in connection with authorized commercial self-insurance
  416  funds or with insured or self-insured programs which provide
  417  life or health insurance coverage or coverage of any other
  418  expenses described in s. 624.33(1); or any person who, through a
  419  health care risk contract as defined in s. 641.234 with an
  420  insurer or health maintenance organization, provides billing and
  421  collection services to health insurers and health maintenance
  422  organizations on behalf of health care providers; or a pharmacy
  423  benefit manager. The term does not include, other than any of
  424  the following persons:
  425         (a) An employer or wholly owned direct or indirect
  426  subsidiary of an employer, on behalf of such employer’s
  427  employees or the employees of one or more subsidiary or
  428  affiliated corporations of such employer.
  429         (b) A union on behalf of its members.
  430         (c) An insurance company which is either authorized to
  431  transact insurance in this state or is acting as an insurer with
  432  respect to a policy lawfully issued and delivered by such
  433  company in and pursuant to the laws of a state in which the
  434  insurer was authorized to transact an insurance business.
  435         (d) A health care services plan, health maintenance
  436  organization, professional service plan corporation, or person
  437  in the business of providing continuing care, possessing a valid
  438  certificate of authority issued by the office, and the sales
  439  representatives thereof, if the activities of such entity are
  440  limited to the activities permitted under the certificate of
  441  authority.
  442         (e) An entity that is affiliated with an insurer and that
  443  only performs the contractual duties, between the administrator
  444  and the insurer, of an administrator for the direct and assumed
  445  insurance business of the affiliated insurer. The insurer is
  446  responsible for the acts of the administrator and is responsible
  447  for providing all of the administrator’s books and records to
  448  the insurance commissioner, upon a request from the insurance
  449  commissioner. For purposes of this paragraph, the term “insurer”
  450  means a licensed insurance company, health maintenance
  451  organization, prepaid limited health service organization, or
  452  prepaid health clinic.
  453         (f) A nonresident entity licensed in its state of domicile
  454  as an administrator if its duties in this state are limited to
  455  the administration of a group policy or plan of insurance and no
  456  more than a total of 100 lives for all plans reside in this
  457  state.
  458         (g) An insurance agent licensed in this state whose
  459  activities are limited exclusively to the sale of insurance.
  460         (h) A person appointed as a managing general agent in this
  461  state, whose activities are limited exclusively to the scope of
  462  activities conveyed under such appointment.
  463         (i) An adjuster licensed in this state whose activities are
  464  limited to the adjustment of claims.
  465         (j) A creditor on behalf of such creditor’s debtors with
  466  respect to insurance covering a debt between the creditor and
  467  its debtors.
  468         (k) A trust and its trustees, agents, and employees acting
  469  pursuant to such trust established in conformity with 29 U.S.C.
  470  s. 186.
  471         (l) A trust exempt from taxation under s. 501(a) of the
  472  Internal Revenue Code, a trust satisfying the requirements of
  473  ss. 624.438 and 624.439, or any governmental trust as defined in
  474  s. 624.33(3), and the trustees and employees acting pursuant to
  475  such trust, or a custodian and its agents and employees,
  476  including individuals representing the trustees in overseeing
  477  the activities of a service company or administrator, acting
  478  pursuant to a custodial account which meets the requirements of
  479  s. 401(f) of the Internal Revenue Code.
  480         (m) A financial institution which is subject to supervision
  481  or examination by federal or state authorities or a mortgage
  482  lender licensed under chapter 494 who collects and remits
  483  premiums to licensed insurance agents or authorized insurers
  484  concurrently or in connection with mortgage loan payments.
  485         (n) A credit card issuing company which advances for and
  486  collects premiums or charges from its credit card holders who
  487  have authorized such collection if such company does not adjust
  488  or settle claims.
  489         (o) A person who adjusts or settles claims in the normal
  490  course of such person’s practice or employment as an attorney at
  491  law and who does not collect charges or premiums in connection
  492  with life or health insurance coverage.
  493         (p) A person approved by the department who administers
  494  only self-insured workers’ compensation plans.
  495         (q) A service company or service agent and its employees,
  496  authorized in accordance with ss. 626.895-626.899, serving only
  497  a single employer plan, multiple-employer welfare arrangements,
  498  or a combination thereof.
  499         (r) Any provider or group practice, as defined in s.
  500  456.053, providing services under the scope of the license of
  501  the provider or the member of the group practice.
  502         (s) Any hospital providing billing, claims, and collection
  503  services solely on its own and its physicians’ behalf and
  504  providing services under the scope of its license.
  505         (t) A corporation not for profit whose membership consists
  506  entirely of local governmental units authorized to enter into
  507  risk management consortiums under s. 112.08.
  508  
  509  A person who provides billing and collection services to health
  510  insurers and health maintenance organizations on behalf of
  511  health care providers shall comply with the provisions of ss.
  512  627.6131, 641.3155, and 641.51(4).
  513         (6)“Pharmacy benefit manager” means a person or an entity
  514  doing business in this state which contracts to administer
  515  prescription drug benefits on behalf of a pharmacy benefits plan
  516  or program as defined in s. 626.8825. The term includes, but is
  517  not limited to, a person or an entity that performs one or more
  518  of the following services on behalf of such plan or program:
  519         (a)Pharmacy claims processing.
  520         (b)Administration or management of a pharmacy discount
  521  card program and performance of any other service listed in this
  522  subsection.
  523         (c)Managing pharmacy networks or pharmacy reimbursement.
  524         (d)Paying or managing claims for pharmacist services
  525  provided to covered persons.
  526         (e)Developing or managing a clinical formulary, including
  527  utilization management or quality assurance programs.
  528         (f)Pharmacy rebate administration.
  529         (g)Managing patient compliance, therapeutic intervention,
  530  or generic substitution programs.
  531         (h)Administration or management of a mail-order pharmacy
  532  program.
  533         Section 9. Present subsections (3) through (6) of section
  534  626.8805, Florida Statutes, are redesignated as subsections (4)
  535  through (7), respectively, a new subsection (3) and subsection
  536  (8) are added to that section, and subsection (1) and present
  537  subsection (3) of that section are amended, to read:
  538         626.8805 Certificate of authority to act as administrator.—
  539         (1) It is unlawful for any person to act as or hold himself
  540  or herself out to be an administrator in this state without a
  541  valid certificate of authority issued by the office pursuant to
  542  ss. 626.88-626.894. A pharmacy benefit manager that is
  543  registered with the office under s. 624.490 as of June 30, 2023,
  544  may continue to operate until January 1, 2024, as an
  545  administrator without a certificate of authority and is not in
  546  violation of the requirement to possess a valid certificate of
  547  authority as an administrator during that timeframe. To qualify
  548  for and hold authority to act as an administrator in this state,
  549  an administrator must otherwise be in compliance with this code
  550  and with its organizational agreement. The failure of any
  551  person, excluding a pharmacy benefit manager, to hold such a
  552  certificate while acting as an administrator shall subject such
  553  person to a fine of not less than $5,000 or more than $10,000
  554  for each violation. A person who, on or after January 1, 2024,
  555  does not hold a certificate of authority to act as an
  556  administrator while operating as a pharmacy benefit manager is
  557  subject to a fine of $10,000 per violation per day. By January
  558  15, 2024, the office shall submit to the Governor, the President
  559  of the Senate, and the Speaker of the House of Representatives a
  560  report detailing whether each pharmacy benefit manager operating
  561  in this state on January 1, 2024, obtained a certificate of
  562  authority on or before that date as required by this section.
  563         (3) An applicant that is a pharmacy benefit manager must
  564  also submit all of the following:
  565         (a)A complete biographical statement on forms prescribed
  566  by the commission.
  567         (b)An independent background report as prescribed by the
  568  commission.
  569         (c)A full set of fingerprints of all of the individuals
  570  referenced in paragraph (2)(c) to the office or to a vendor,
  571  entity, or agency authorized by s. 943.053(13). The office,
  572  vendor, entity, or agency, as applicable, shall forward the
  573  fingerprints to the Department of Law Enforcement for state
  574  processing, and the Department of Law Enforcement shall forward
  575  the fingerprints to the Federal Bureau of Investigation for
  576  national processing in accordance with s. 943.053 and 28 C.F.R.
  577  s. 20.
  578         (d)A self-disclosure of any administrative, civil, or
  579  criminal complaints, settlements, or discipline of the
  580  applicant, or any of the applicant’s affiliates, which relate to
  581  a violation of the insurance laws, including pharmacy benefit
  582  manager laws, in any state.
  583         (e)A statement attesting to compliance with the network
  584  requirements in s. 626.8825 beginning January 1, 2024.
  585         (4)(a)(3) The applicant shall make available for inspection
  586  by the office copies of all contracts relating to services
  587  provided by the administrator to insurers or other persons using
  588  the services of the administrator.
  589         (b)An applicant that is a pharmacy benefit manager shall
  590  also make available for inspection by the office:
  591         1.Copies of all contract templates with any pharmacy as
  592  defined in s. 465.003; and
  593         2.Copies of all subcontracts to support its operations.
  594         (8)A pharmacy benefit manager is exempt from fees
  595  associated with the initial application and the annual filing
  596  fees in s. 626.89.
  597         Section 10. Section 626.8814, Florida Statutes, is amended
  598  to read:
  599         626.8814 Disclosure of ownership or affiliation.—
  600         (1) Each administrator shall identify to the office any
  601  ownership interest or affiliation of any kind with any insurance
  602  company responsible for providing benefits directly or through
  603  reinsurance to any plan for which the administrator provides
  604  administrative services.
  605         (2)Pharmacy benefit managers shall also identify to the
  606  office any ownership affiliation of any kind with any pharmacy
  607  which, either directly or indirectly, through one or more
  608  intermediaries:
  609         (a)Has an investment or ownership interest in a pharmacy
  610  benefit manager holding a certificate of authority issued under
  611  this part;
  612         (b)Shares common ownership with a pharmacy benefit manager
  613  holding a certificate of authority issued under this part; or
  614         (c)Has an investor or a holder of an ownership interest
  615  which is a pharmacy benefit manager holding a certificate of
  616  authority issued under this part.
  617         (3)A pharmacy benefit manager shall report any change in
  618  information required by subsection (2) to the office in writing
  619  within 60 days after the change occurs.
  620         Section 11. Section 626.8825, Florida Statutes, is created
  621  to read:
  622         626.8825 Pharmacy benefit manager transparency and
  623  accountability.—
  624         (1)DEFINITIONS.—As used in this section, the term:
  625         (a)“Adjudication transaction fee” means a fee charged by
  626  the pharmacy benefit manager to the pharmacy for electronic
  627  claim submissions.
  628         (b)“Affiliated pharmacy” means a pharmacy that, either
  629  directly or indirectly through one or more intermediaries:
  630         1.Has an investment or ownership interest in a pharmacy
  631  benefit manager holding a certificate of authority issued under
  632  this part;
  633         2.Shares common ownership with a pharmacy benefit manager
  634  holding a certificate of authority issued under this part; or
  635         3.Has an investor or a holder of an ownership interest
  636  which is a pharmacy benefit manager holding a certificate of
  637  authority issued under this part.
  638         (c)“Brand name or generic effective rate” means the
  639  contractual rate set forth by a pharmacy benefit manager for the
  640  reimbursement of covered brand name or generic drugs, calculated
  641  using the total payments in the aggregate, by drug type, during
  642  the performance period. The effective rates are typically
  643  calculated as a discount from industry benchmarks, such as
  644  average wholesale price or wholesale acquisition cost.
  645         (d)“Covered person” means a person covered by,
  646  participating in, or receiving the benefit of a pharmacy
  647  benefits plan or program.
  648         (e)“Direct and indirect remuneration fees” means price
  649  concessions that are paid to the pharmacy benefit manager by the
  650  pharmacy retrospectively and that cannot be calculated at the
  651  point of sale. The term may also include discounts, chargebacks
  652  or rebates, cash discounts, free goods contingent on a purchase
  653  agreement, upfront payments, coupons, goods in kind, free or
  654  reduced-price services, grants, or other price concessions or
  655  similar benefits from manufacturers, pharmacies, or similar
  656  entities.
  657         (f)“Dispensing fee” means a fee intended to cover
  658  reasonable costs associated with providing the drug to a covered
  659  person. This cost includes the pharmacist’s services and the
  660  overhead associated with maintaining the facility and equipment
  661  necessary to operate the pharmacy.
  662         (g)“Effective rate guarantee” means the minimum ingredient
  663  cost reimbursement a pharmacy benefit manager guarantees it will
  664  pay for pharmacist services during the applicable measurement
  665  period.
  666         (h)“Erroneous claims” means pharmacy claims submitted in
  667  error, including, but not limited to, unintended, incorrect,
  668  fraudulent, or test claims.
  669         (i)“Group purchasing organization” means an entity
  670  affiliated with a pharmacy benefit manager or a pharmacy
  671  benefits plan or program which uses purchasing volume aggregates
  672  as leverage to negotiate discounts and rebates for covered
  673  prescription drugs with pharmaceutical manufacturers,
  674  distributors, and wholesale vendors.
  675         (j)“Incentive payment” means a retrospective monetary
  676  payment made as a reward or recognition by the pharmacy benefits
  677  plan or program or pharmacy benefit manager to a pharmacy for
  678  meeting or exceeding predefined pharmacy performance metrics as
  679  related to quality measures, such as Healthcare Effectiveness
  680  Data and Information Set measures.
  681         (k)“Maximum allowable cost appeal pricing adjustment”
  682  means a retrospective positive payment adjustment made to a
  683  pharmacy by the pharmacy benefits plan or program or by the
  684  pharmacy benefit manager pursuant to an approved maximum
  685  allowable cost appeal request submitted by the same pharmacy to
  686  dispute the amount reimbursed for a drug based on the pharmacy
  687  benefit manager’s listed maximum allowable cost price.
  688         (l)“Monetary recoupments” means rescinded or recouped
  689  payments from a pharmacy or provider by the pharmacy benefits
  690  plan or program or by the pharmacy benefit manager.
  691         (m)“Network” means a group of pharmacies that agree to
  692  provide pharmacist services to covered persons on behalf of a
  693  pharmacy benefits plan or program or a group of pharmacy
  694  benefits plans or programs in exchange for payment for such
  695  services. The term includes a pharmacy that generally dispenses
  696  outpatient prescription drugs to covered persons.
  697         (n)“Network reconciliation offsets” means a process during
  698  annual payment reconciliation between a pharmacy benefit manager
  699  and a pharmacy which allows the pharmacy benefit manager to
  700  offset an amount for overperformance or underperformance of
  701  contractual guarantees across guaranteed line items, channels,
  702  networks, or payors, as applicable.
  703         (o)“Participation contract” means any agreement between a
  704  pharmacy benefit manager and pharmacy for the provision and
  705  reimbursement of pharmacist services and any exhibits,
  706  attachments, amendments, or addendums to such agreement.
  707         (p)“Pass-through pricing model” means a payment model used
  708  by a pharmacy benefit manager in which the payments made by the
  709  pharmacy benefits plan or program to the pharmacy benefit
  710  manager for the covered outpatient drugs are:
  711         1.Equivalent to the payments the pharmacy benefit manager
  712  makes to a dispensing pharmacy or provider for such drugs,
  713  including any contracted professional dispensing fee between the
  714  pharmacy benefit manager and its network of pharmacies. Such
  715  dispensing fee would be paid if the pharmacy benefits plan or
  716  program was making the payments directly.
  717         2.Passed through in their entirety by the pharmacy
  718  benefits plan or program or by the pharmacy benefit manager to
  719  the pharmacy or provider that dispenses the drugs, and the
  720  payments are made in a manner that is not offset by any
  721  reconciliation.
  722         (q)“Pharmacist” has the same meaning as in s. 465.003.
  723         (r)“Pharmacist services” means products, goods, and
  724  services or any combination of products, goods, and services
  725  provided as part of the practice of the profession of pharmacy
  726  as defined in s. 465.003 or otherwise covered by a pharmacy
  727  benefits plan or program.
  728         (s)“Pharmacy” has the same meaning as in s. 465.003.
  729         (t)“Pharmacy benefit manager” has the same meaning as in
  730  s. 626.88.
  731         (u)“Pharmacy benefits plan or program” means a plan or
  732  program that pays for, reimburses, covers the cost of, or
  733  provides access to discounts on pharmacist services provided by
  734  one or more pharmacies to covered persons who reside in, are
  735  employed by, or receive pharmacist services from this state. The
  736  term includes, but is not limited to, health maintenance
  737  organizations, health insurers, self-insured employer health
  738  plans, discount card programs, and government-funded health
  739  plans, including the Statewide Medicaid Managed Care program
  740  established pursuant to part IV of chapter 409 and the state
  741  group insurance program pursuant to part I of chapter 110.
  742         (v)“Rebate” means all payments that accrue to a pharmacy
  743  benefit manager or its pharmacy benefits plan or program client
  744  or an affiliated group purchasing organization, directly or
  745  indirectly, from a pharmaceutical manufacturer, including, but
  746  not limited to, discounts, administration fees, credits,
  747  incentives, or penalties associated directly or indirectly in
  748  any way with claims administered on behalf of a pharmacy
  749  benefits plan or program client.
  750         (w)“Spread pricing” is the practice in which a pharmacy
  751  benefit manager charges a pharmacy benefits plan or program a
  752  different amount for pharmacist services than the amount the
  753  pharmacy benefit manager reimburses a pharmacy for such
  754  pharmacist services.
  755         (x)“Usual and customary price” means the amount charged to
  756  cash customers for a pharmacist service exclusive of sales tax
  757  or other amounts claimed.
  758         (2)CONTRACTS BETWEEN A PHARMACY BENEFIT MANAGER AND A
  759  PHARMACY BENEFITS PLAN OR PROGRAM.—In addition to any other
  760  requirements in the Florida Insurance Code, all contractual
  761  arrangements executed, amended, adjusted, or renewed on or after
  762  July 1, 2023, which are applicable to pharmacy benefits covered
  763  on or after January 1, 2024, between a pharmacy benefit manager
  764  and a pharmacy benefits plan or program must:
  765         (a)Use a pass-through pricing model, remaining consistent
  766  with the prohibition in paragraph (3)(c).
  767         (b)Exclude terms that allow for the direct or indirect
  768  engagement in the practice of spread pricing unless the pharmacy
  769  benefit manager passes along the entire amount of such
  770  difference to the pharmacy benefits plan or program as allowable
  771  under paragraph (a).
  772         (c)Ensure that funds received in relation to providing
  773  services for a pharmacy benefits plan or program or a pharmacy
  774  are received by the pharmacy benefit manager in trust for the
  775  pharmacy benefits plan or program or pharmacy, as applicable,
  776  and are used or distributed only pursuant to the pharmacy
  777  benefit manager’s contract with the pharmacy benefits plan or
  778  program or with the pharmacy or as otherwise required by
  779  applicable law.
  780         (d) Require the pharmacy benefit manager to pass 100
  781  percent of all prescription drug manufacturer rebates, including
  782  nonresident manufacturer rebates, received to the pharmacy
  783  benefits plan or program, if the contractual arrangement
  784  delegates the negotiation of rebates to the pharmacy benefit
  785  manager, for the sole purpose of offsetting defined cost sharing
  786  and reducing premiums of covered persons. Any excess rebate
  787  revenue after the pharmacy benefit manager and the pharmacy
  788  benefits plan or program have taken all actions required under
  789  this paragraph must be used for the sole purpose of offsetting
  790  copayments and deductibles of covered persons. This paragraph
  791  does not apply to contracts involving Medicaid managed care
  792  plans.
  793         (e)Include network adequacy requirements that meet or
  794  exceed the Medicare Part D program standards for convenient
  795  access to network pharmacies set forth in 42 C.F.R. s. 423.120,
  796  and that:
  797         1.Do not limit a network to solely include affiliated
  798  pharmacies;
  799         2.Require a pharmacy benefit manager to offer a provider
  800  contract to licensed pharmacies physically located on the
  801  physical site of providers that are:
  802         a.Within the pharmacy benefits plan’s or program’s
  803  geographic service area and that have been specifically
  804  designated as essential providers by the Agency for Health Care
  805  Administration pursuant to s. 409.975(1)(a);
  806         b.Designated as a Cancer Center of Excellence under s.
  807  381.925, regardless of the pharmacy benefits plan’s or program’s
  808  geographic service area;
  809         c.Organ transplant hospitals, regardless of the pharmacy
  810  benefits plan’s or program’s geographic service area;
  811         d.Hospitals licensed as specialty children’s hospitals as
  812  defined in s. 395.002; or
  813         e.Regional perinatal intensive care centers as defined in
  814  s. 383.16(2), regardless of the pharmacy benefits plan’s or
  815  program’s geographic service area.
  816  
  817  Such provider contracts must be solely for the administration or
  818  dispensing of covered prescription drugs, including biological
  819  products, that are administered through infusions, intravenously
  820  injected, inhaled during a surgical procedure, or a covered
  821  parenteral drug, as part of onsite outpatient care;
  822         3.Do not require a covered person to receive a
  823  prescription drug by United States mail, common carrier, local
  824  courier, third-party company or delivery service, or pharmacy
  825  direct delivery unless the prescription drug cannot be acquired
  826  at any retail pharmacy in the pharmacy benefit manager’s network
  827  for the covered person’s pharmacy benefits plan or program. This
  828  subparagraph does not prohibit a pharmacy benefit manager from
  829  operating mail order or delivery programs on an opt-in basis at
  830  the sole discretion of a covered person;
  831         4.Prohibit a requirement for a covered person to receive
  832  pharmacist services from an affiliated pharmacy or an affiliated
  833  health care provider for the in-person administration of covered
  834  prescription drugs; offering or implementing pharmacy networks
  835  that require or provide a promotional item or an incentive,
  836  defined as anything other than a reduced cost-sharing amount or
  837  enhanced quantity limit allowed under the benefit design for a
  838  covered drug, to a covered person to use an affiliated pharmacy
  839  or an affiliated health care provider for the in-person
  840  administration of covered prescription drugs; or advertising,
  841  marketing, or promoting an affiliated pharmacy to covered
  842  persons. Subject to the foregoing, a pharmacy benefit manager
  843  may include an affiliated pharmacy in communications to covered
  844  persons regarding network pharmacies and prices, provided that
  845  the pharmacy benefit manager includes information, such as links
  846  to all nonaffiliated network pharmacies, in such communications
  847  and that the information provided is accurate and of equal
  848  prominence. This paragraph may not be construed to prohibit a
  849  pharmacy benefit manager from entering into an agreement with an
  850  affiliated pharmacy to provide pharmacist services to covered
  851  persons.
  852         (f)Prohibit the ability of a pharmacy benefit manager to
  853  condition participation in one pharmacy network on participation
  854  in any other pharmacy network or penalize a pharmacy for
  855  exercising its prerogative not to participate in a specific
  856  pharmacy network.
  857         (g)Prohibit a pharmacy benefit manager from instituting a
  858  network that requires a pharmacy to meet accreditation standards
  859  inconsistent with or more stringent than applicable federal and
  860  state requirements for licensure and operation as a pharmacy in
  861  this state. However, a pharmacy benefit manager may specify
  862  additional specialty networks that require enhanced standards
  863  related to the safety and competency necessary to meet the
  864  United States Food and Drug Administration’s limited
  865  distribution requirements for dispensing any covered drug, on a
  866  drug-by-drug basis, that requires extraordinary special
  867  handling, provider coordination, clinical care or monitoring, or
  868  patient education when such extraordinary requirements cannot be
  869  met by a network pharmacy. For purposes of this paragraph, drugs
  870  requiring extraordinary special handling include, but are not
  871  limited to, drugs that are subject to a risk evaluation and
  872  mitigation strategy approved by the United States Food and Drug
  873  Administration; require special certification of a health care
  874  provider to prescribe, receive, dispense, or administer; require
  875  special handling due to the molecular complexity or cytotoxic
  876  properties of a biologic or biosimilar product or drug; require
  877  cold chain storage and shipping or specialized equipment to
  878  dispense; or require other conditions of a similar gravity.
  879         (h)1.At a minimum, require the pharmacy benefit manager or
  880  pharmacy benefits plan or program to, upon revising its
  881  formulary of covered prescription drugs during a plan year,
  882  provide a 60-day continuity-of-care period in which the covered
  883  prescription drug that is being revised from the formulary
  884  continues to be provided at the same cost for the patient for a
  885  period of 60 days. The 60-day continuity-of-care period
  886  commences upon notification to the patient. This requirement
  887  does not apply if the covered prescription drug:
  888         a.Has been approved and made available over the counter by
  889  the United States Food and Drug Administration and has entered
  890  the commercial market as such;
  891         b.Has been removed or withdrawn from the commercial market
  892  by the manufacturer; or
  893         c.Is subject to an involuntary recall by state or federal
  894  authorities and is no longer available on the commercial market.
  895         2.Beginning January 1, 2024, and annually thereafter, the
  896  pharmacy benefits plan or program shall submit to the office,
  897  under the penalty of perjury, a statement attesting to its
  898  compliance with the requirements of this subsection.
  899         (3)CONTRACTS BETWEEN A PHARMACY BENEFIT MANAGER AND A
  900  PARTICIPATING PHARMACY.—In addition to other requirements in the
  901  Florida Insurance Code, a participation contract executed,
  902  amended, adjusted, or renewed on or after July 1, 2023, that
  903  applies to pharmacist services on or after January 1, 2024,
  904  between a pharmacy benefit manager and one or more pharmacies or
  905  pharmacists, must include, in substantial form, terms that
  906  ensure compliance with all of the following requirements, and
  907  that, except to the extent not allowed by law, shall supersede
  908  any contractual terms in the participation contract to the
  909  contrary:
  910         (a)At the time of adjudication for electronic claims or
  911  the time of reimbursement for nonelectronic claims, the pharmacy
  912  benefit manager shall provide the pharmacy with a remittance,
  913  including such detailed information as is necessary for the
  914  pharmacy or pharmacist to identify the reimbursement schedule
  915  for the specific network applicable to the claim and which is
  916  the basis used by the pharmacy benefit manager to calculate the
  917  amount of reimbursement paid. This information must include, but
  918  is not limited to, the applicable network reimbursement ID or
  919  plan ID as defined in the most current version of the National
  920  Council for Prescription Drug Programs (NCPDP) Telecommunication
  921  Standard Implementation Guide, or its nationally recognized
  922  successor industry guide. The commission shall adopt rules to
  923  implement this paragraph.
  924         (b)The pharmacy benefit manager must ensure that any basis
  925  of reimbursement information is communicated to a pharmacy in
  926  accordance with the NCPDP Telecommunication Standard
  927  Implementation Guide, or its nationally recognized successor
  928  industry guide, when performing reconciliation for any effective
  929  rate guarantee, and that such basis of reimbursement information
  930  communicated is accurate, corresponds with the applicable
  931  network rate, and may be relied upon by the pharmacy.
  932         (c)A prohibition of financial clawbacks, reconciliation
  933  offsets, or offsets to adjudicated claims. A pharmacy benefit
  934  manager may not charge, withhold, or recoup direct or indirect
  935  remuneration fees, dispensing fees, brand name or generic
  936  effective rate adjustments through reconciliation, or any other
  937  monetary charge, withholding, or recoupments as related to
  938  discounts, multiple network reconciliation offsets, adjudication
  939  transaction fees, and any other instance when a fee may be
  940  recouped from a pharmacy. This prohibition does not apply to:
  941         1.Any incentive payments provided by the pharmacy benefit
  942  manager to a network pharmacy for meeting or exceeding
  943  predefined quality measures, such as Healthcare Effectiveness
  944  Data and Information Set measures; recoupment due to an
  945  erroneous claim, fraud, waste, or abuse; a claim adjudicated in
  946  error; a maximum allowable cost appeal pricing adjustment; or an
  947  adjustment made as part of a pharmacy audit pursuant to s.
  948  624.491.
  949         2.Any recoupment that is returned to the state for
  950  programs in chapter 409 or the state group insurance program in
  951  s. 110.123.
  952         (d)A pharmacy benefit manager may not unilaterally change
  953  the terms of any participation contract.
  954         (e)Unless otherwise prohibited by law, a pharmacy benefit
  955  manager may not prohibit a pharmacy or pharmacist from:
  956         1.Offering mail or delivery services on an opt-in basis at
  957  the sole discretion of the covered person.
  958         2.Mailing or delivering a prescription drug to a covered
  959  person upon his or her request.
  960         3.Charging a shipping or handling fee to a covered person
  961  requesting a prescription drug be mailed or delivered if the
  962  pharmacy or pharmacist discloses to the covered person before
  963  the mailing or delivery the amount of the fee that will be
  964  charged and that the fee may not be reimbursable by the covered
  965  person’s pharmacy benefits plan or program.
  966         (f)The pharmacy benefit manager must provide a pharmacy,
  967  upon its request, a list of pharmacy benefits plans or programs
  968  in which the pharmacy is a part of the network. Updates to the
  969  list must be communicated to the pharmacy within 7 days. The
  970  pharmacy benefit manager may not restrict the pharmacy or
  971  pharmacist from disclosing this information to the public.
  972         (g)The pharmacy benefit manager must ensure that the
  973  Electronic Remittance Advice contains claim level payment
  974  adjustments in accordance with the American National Standards
  975  Institute Accredited Standards Committee, X12 format, and
  976  includes or is accompanied by the appropriate level of detail
  977  for the pharmacy to reconcile any debits or credits, including,
  978  but not limited to, pharmacy NCPDP or NPI identifier, date of
  979  service, prescription number, refill number, adjustment code, if
  980  applicable, and transaction amount.
  981         (h)The pharmacy benefit manager shall provide a reasonable
  982  administrative appeal procedure to allow a pharmacy or
  983  pharmacist to challenge the maximum allowable cost pricing
  984  information and the reimbursement made under the maximum
  985  allowable cost as defined in s. 627.64741 for a specific drug as
  986  being below the acquisition cost available to the challenging
  987  pharmacy or pharmacist.
  988         1.The administrative appeal procedure must include a
  989  telephone number and e-mail address, or a website, for the
  990  purpose of submitting the administrative appeal. The appeal may
  991  be submitted by the pharmacy or an agent of the pharmacy
  992  directly to the pharmacy benefit manager or through a pharmacy
  993  service administration organization. The pharmacy or pharmacist
  994  must be given at least 30 business days after a maximum
  995  allowable cost update or after an adjudication for an electronic
  996  claim or reimbursement for a nonelectronic claim to file the
  997  administrative appeal.
  998         2.The pharmacy benefit manager must respond to the
  999  administrative appeal within 30 business days after receipt of
 1000  the appeal.
 1001         3.If the appeal is upheld, the pharmacy benefit manager
 1002  must:
 1003         a.Update the maximum allowable cost pricing information to
 1004  at least the acquisition cost available to the pharmacy;
 1005         b.Permit the pharmacy or pharmacist to reverse and rebill
 1006  the claim in question;
 1007         c.Provide to the pharmacy or pharmacist the national drug
 1008  code on which the increase or change is based; and
 1009         d.Make the increase or change effective for each similarly
 1010  situated pharmacy or pharmacist who is subject to the applicable
 1011  maximum allowable cost pricing information.
 1012         4.If the appeal is denied, the pharmacy benefit manager
 1013  must provide to the pharmacy or pharmacist the national drug
 1014  code and the name of the national or regional pharmaceutical
 1015  wholesalers operating in this state which have the drug
 1016  currently in stock at a price below the maximum allowable cost
 1017  pricing information.
 1018         5.Every 90 days, a pharmacy benefit manager shall report
 1019  to the office the total number of appeals received and denied in
 1020  the preceding 90-day period, with an explanation or reason for
 1021  each denial, for each specific drug for which an appeal was
 1022  submitted pursuant to this paragraph.
 1023         Section 12. Section 626.8827, Florida Statutes, is created
 1024  to read:
 1025         626.8827 Pharmacy benefit manager prohibited practices.—In
 1026  addition to other prohibitions in this part, a pharmacy benefit
 1027  manager may not do any of the following:
 1028         (1)Prohibit, restrict, or penalize in any way a pharmacy
 1029  or pharmacist from disclosing to any person any information that
 1030  the pharmacy or pharmacist deems appropriate, including, but not
 1031  limited to, information regarding any of the following:
 1032         (a) The nature of treatment, risks, or alternatives
 1033  thereto.
 1034         (b) The availability of alternate treatment, consultations,
 1035  or tests.
 1036         (c) The decision of utilization reviewers or similar
 1037  persons to authorize or deny pharmacist services.
 1038         (d) The process used to authorize or deny pharmacist
 1039  services or benefits.
 1040         (e) Information on financial incentives and structures used
 1041  by the pharmacy benefits plan or program.
 1042         (f) Information that may reduce the costs of pharmacist
 1043  services.
 1044         (g) Whether the cost-sharing obligation exceeds the retail
 1045  price for a covered prescription drug and the availability of a
 1046  more affordable alternative drug, pursuant to s. 465.0244.
 1047         (2) Prohibit, restrict, or penalize in any way a pharmacy
 1048  or pharmacist from disclosing information to the office, the
 1049  Agency for Health Care Administration, Department of Management
 1050  Services, law enforcement, or state and federal governmental
 1051  officials, provided that the recipient of the information
 1052  represents it has the authority, to the extent provided by state
 1053  or federal law, to maintain proprietary information as
 1054  confidential; and before disclosure of information designated as
 1055  confidential, the pharmacist or pharmacy marks as confidential
 1056  any document in which the information appears or requests
 1057  confidential treatment for any oral communication of the
 1058  information.
 1059         (3) Communicate at the point-of-sale, or otherwise require,
 1060  a cost-sharing obligation for the covered person in an amount
 1061  that exceeds the lesser of:
 1062         (a) The applicable cost-sharing amount under the applicable
 1063  pharmacy benefits plan or program; or
 1064         (b) The usual and customary price, as defined in s.
 1065  626.8825, of the pharmacist services.
 1066         (4) Transfer or share records relative to prescription
 1067  information containing patient-identifiable or prescriber
 1068  identifiable data to an affiliated pharmacy for any commercial
 1069  purpose other than the limited purposes of facilitating pharmacy
 1070  reimbursement, formulary compliance, or utilization review on
 1071  behalf of the applicable pharmacy benefits plan or program.
 1072         (5) Fail to make any payment due to a pharmacy for an
 1073  adjudicated claim with a date of service before the effective
 1074  date of a pharmacy’s termination from a pharmacy benefit network
 1075  unless payments are withheld because of actual fraud on the part
 1076  of the pharmacy or except as otherwise required by law.
 1077         (6) Terminate the contract of, penalize, or disadvantage a
 1078  pharmacist or pharmacy due to a pharmacist or pharmacy:
 1079         (a) Disclosing information about pharmacy benefit manager
 1080  practices in accordance with this act;
 1081         (b) Exercising any of its prerogatives under this part; or
 1082         (c) Sharing any portion, or all, of the pharmacy benefit
 1083  manager contract with the office pursuant to a complaint or a
 1084  query regarding whether the contract is in compliance with this
 1085  act.
 1086         (7)Fail to comply with the requirements in s. 626.8825 or
 1087  s. 624.491.
 1088         Section 13. Section 626.8828, Florida Statutes, is created
 1089  to read:
 1090         626.8828Investigations and examinations of pharmacy
 1091  benefit managers; expenses; penalties.—
 1092         (1)The office may investigate administrators who are
 1093  pharmacy benefit managers and applicants for authorization as
 1094  provided in ss. 624.307 and 624.317. The office shall review any
 1095  referral made pursuant to s. 624.307(10) and shall investigate
 1096  any referral that, as determined by the Commissioner of
 1097  Insurance Regulation or his or her designee, reasonably
 1098  indicates a possible violation of this part.
 1099         (2)(a)The office shall examine the business and affairs of
 1100  each pharmacy benefit manager at least biennially. The biennial
 1101  examination of each pharmacy benefit manager must be a
 1102  systematic review for the purpose of determining the pharmacy
 1103  benefit manager’s compliance with all provisions of this part
 1104  and all other laws or rules applicable to pharmacy benefit
 1105  managers and must include a detailed review of the pharmacy
 1106  benefit manager’s compliance with ss. 626.8825 and 626.8827. The
 1107  first 2-year cycle for conducting biennial reviews begins
 1108  January 1, 2025. By January 15, 2026, and each January 15
 1109  thereafter, the office shall submit to the Governor, the
 1110  President of the Senate, and the Speaker of the House of
 1111  Representatives a report summarizing the results of the prior
 1112  year’s examinations which includes detailed descriptions of any
 1113  violations committed by each pharmacy benefit manager and
 1114  detailed reporting of actions taken by the office against each
 1115  pharmacy benefit manager for such violations. Beginning with the
 1116  2027 report, and every 2 years thereafter, the report must
 1117  document the office’s compliance with the examination timeframe
 1118  requirements as provided in this paragraph. The office must
 1119  specify the number and percentage of all examination completed
 1120  within the timeframe.
 1121         (b)The office also may conduct additional examinations as
 1122  often as it deems advisable or necessary for the purpose of
 1123  ascertaining compliance with this part and any other laws or
 1124  rules applicable to pharmacy benefit managers or applicants for
 1125  authorization.
 1126         (c)If a referral made pursuant to s. 624.307(10)
 1127  reasonably indicates a pattern or practice of violations of this
 1128  part by a pharmacy benefit manager, the office must begin an
 1129  examination of the pharmacy benefit manager or include findings
 1130  related to such referral within an ongoing examination.
 1131         (d)Based on the findings of an examination that a pharmacy
 1132  benefit manager or an applicant for authorization has exhibited
 1133  a pattern or practice of knowing and willful violations of s.
 1134  626.8825 or s. 626.8827, the office may, pursuant to chapter
 1135  120, order a pharmacy benefit manager to file all contracts
 1136  between the pharmacy benefit manager and pharmacies or pharmacy
 1137  benefits plans or programs and any policies, guidelines, rules,
 1138  protocols, standard operating procedures, instructions, or
 1139  directives that govern or guide the manner in which the pharmacy
 1140  benefit manager or applicant conducts business related to such
 1141  knowing and willful violations for review and inspection for the
 1142  following 36-month period. Such documents are public records and
 1143  are not trade secrets or otherwise exempt from s. 119.07(1). As
 1144  used in this section, the term:
 1145         1.Contracts” means any contract to which s. 626.8825 is
 1146  applicable.
 1147         2.“Knowing and willful” means any act of commission or
 1148  omission which is committed intentionally, as opposed to
 1149  accidentally, and which is committed with knowledge of the act’s
 1150  unlawfulness or with reckless disregard as to the unlawfulness
 1151  of the act.
 1152         (e)Examinations may be conducted by an independent
 1153  professional examiner under contract to the office, in which
 1154  case payment must be made directly to the contracted examiner by
 1155  the pharmacy benefit manager examined in accordance with the
 1156  rates and terms agreed to by the office and the examiner. The
 1157  commission shall adopt rules providing for the types of
 1158  independent professional examiners who may conduct examinations
 1159  under this section, which types must include, but need not be
 1160  limited to, independent certified public accountants, actuaries,
 1161  investment specialists, information technology specialists, or
 1162  others meeting criteria specified by commission rule. The rules
 1163  must also require that:
 1164         1.The rates charged to the pharmacy benefit manager being
 1165  examined are consistent with rates charged by other firms in a
 1166  similar profession and are comparable with the rates charged for
 1167  comparable examinations.
 1168         2.The firm selected by the office to perform the
 1169  examination has no conflicts of interest which might affect its
 1170  ability to independently perform its responsibilities for the
 1171  examination.
 1172         (3)In making investigations and examinations of pharmacy
 1173  benefit managers and applicants for authorization, the office
 1174  and such pharmacy benefit manager are subject to all of the
 1175  following provisions:
 1176         (a)Section 624.318, as to the conduct of examinations.
 1177         (b)Section 624.319, as to examination and investigation
 1178  reports.
 1179         (c) Section 624.321, as to witnesses and evidence.
 1180         (d) Section 624.322, as to compelled testimony.
 1181         (e) Section 624.324, as to hearings.
 1182         (f) Any other provision of chapter 624 applicable to the
 1183  investigation or examination of a licensee under this part.
 1184         (4)(a) A pharmacy benefit manager must maintain an accurate
 1185  record of all contracts and records with all pharmacies and
 1186  pharmacy benefits plans or programs for the duration of the
 1187  contract, and for 5 years thereafter. Such contracts must be
 1188  made available to the office and kept in a form accessible to
 1189  the office.
 1190         (b)The office may order any pharmacy benefit manager or
 1191  applicant to produce any records, books, files, contracts,
 1192  advertising and solicitation materials, or other information and
 1193  may take statements under oath to determine whether the pharmacy
 1194  benefit manager or applicant is in violation of the law or is
 1195  acting contrary to the public interest.
 1196         (5)(a) Notwithstanding s. 624.307(3), each pharmacy benefit
 1197  manager and applicant for authorization must pay to the office
 1198  the expenses of the examination or investigation. Such expenses
 1199  include actual travel expenses, a reasonable living expense
 1200  allowance, compensation of the examiner, investigator, or other
 1201  person making the examination or investigation, and necessary
 1202  costs of the office directly related to the examination or
 1203  investigation. Such travel expenses and living expense
 1204  allowances are limited to those expenses necessarily incurred on
 1205  account of the examination or investigation and shall be paid by
 1206  the examined pharmacy benefit manager or applicant together with
 1207  compensation upon presentation by the office to such pharmacy
 1208  benefit manager or applicant of such charges and expenses after
 1209  a detailed statement has been filed by the examiner and approved
 1210  by the office.
 1211         (b) All moneys collected from pharmacy benefit managers and
 1212  applicants for authorization pursuant to this subsection shall
 1213  be deposited into the Insurance Regulatory Trust Fund, and the
 1214  office may make deposits from time to time into such fund from
 1215  moneys appropriated for the operation of the office.
 1216         (c) Notwithstanding s. 112.061, the office may pay to the
 1217  examiner, investigator, or person making such examination or
 1218  investigation out of such trust fund the actual travel expenses,
 1219  reasonable living expense allowance, and compensation in
 1220  accordance with the statement filed with the office by the
 1221  examiner, investigator, or other person, as provided in
 1222  paragraph (a).
 1223         (6) In addition to any other enforcement authority
 1224  available to the office, the office shall impose an
 1225  administrative fine of $5,000 for each violation of s. 626.8825
 1226  or s. 626.8827. Each instance of a violation of such sections by
 1227  a pharmacy benefit manager against each individual pharmacy or
 1228  prescription benefits plan or program constitutes a separate
 1229  violation. Notwithstanding any other provision of law, there is
 1230  no limitation on aggregate fines issued pursuant to this
 1231  section. The proceeds from any administrative fine shall be
 1232  deposited into the General Revenue Fund.
 1233         (7) Failure by a pharmacy benefit manager to pay expenses
 1234  incurred or administrative fines imposed under this section is
 1235  grounds for the denial, suspension, or revocation of its
 1236  certificate of authority.
 1237         Section 14. Section 626.89, Florida Statutes, is amended to
 1238  read:
 1239         626.89 Annual financial statement and filing fee; notice of
 1240  change of ownership; pharmacy benefit manager filings.—
 1241         (1) Each authorized administrator shall annually file with
 1242  the office a full and true statement of its financial condition,
 1243  transactions, and affairs within 3 months after the end of the
 1244  administrator’s fiscal year or within such extension of time as
 1245  the office for good cause may have granted. The statement must
 1246  be for the preceding fiscal year and must be in such form and
 1247  contain such matters as the commission prescribes and must be
 1248  verified by at least two officers of the administrator.
 1249         (2) Each authorized administrator shall also file an
 1250  audited financial statement performed by an independent
 1251  certified public accountant. The audited financial statement
 1252  must shall be filed with the office within 5 months after the
 1253  end of the administrator’s fiscal year and be for the preceding
 1254  fiscal year. An audited financial statement prepared on a
 1255  consolidated basis must include a columnar consolidating or
 1256  combining worksheet that must be filed with the statement and
 1257  must comply with the following:
 1258         (a) Amounts shown on the consolidated audited financial
 1259  statement must be shown on the worksheet;
 1260         (b) Amounts for each entity must be stated separately; and
 1261         (c) Explanations of consolidating and eliminating entries
 1262  must be included.
 1263         (3) At the time of filing its annual statement, the
 1264  administrator shall pay a filing fee in the amount specified in
 1265  s. 624.501 for the filing of an annual statement by an insurer.
 1266         (4) In addition, the administrator shall immediately notify
 1267  the office of any material change in its ownership.
 1268         (5) A pharmacy benefit manager shall also notify the office
 1269  within 30 days after any administrative, civil, or criminal
 1270  complaints, settlements, or discipline of the pharmacy benefit
 1271  manager or any of its affiliates which relate to a violation of
 1272  the insurance laws, including pharmacy benefit laws in any
 1273  state.
 1274         (6) A pharmacy benefit manager shall also annually submit
 1275  to the office a statement attesting to its compliance with the
 1276  network requirements of s. 626.8825.
 1277         (7) The commission may by rule require all or part of the
 1278  statements or filings required under this section to be
 1279  submitted by electronic means in a computer-readable form
 1280  compatible with the electronic data format specified by the
 1281  commission.
 1282         Section 15. Subsection (5) is added to section 627.42393,
 1283  Florida Statutes, to read:
 1284         627.42393 Step-therapy protocol.—
 1285         (5)This section applies to a pharmacy benefit manager
 1286  acting on behalf of a health insurer.
 1287         Section 16. Subsections (2), (3), and (4) of section
 1288  627.64741, Florida Statutes, are amended to read:
 1289         627.64741 Pharmacy benefit manager contracts.—
 1290         (2) In addition to the requirements of part VII of chapter
 1291  626, a contract between a health insurer and a pharmacy benefit
 1292  manager must require that the pharmacy benefit manager:
 1293         (a) Update maximum allowable cost pricing information at
 1294  least every 7 calendar days.
 1295         (b) Maintain a process that will, in a timely manner,
 1296  eliminate drugs from maximum allowable cost lists or modify drug
 1297  prices to remain consistent with changes in pricing data used in
 1298  formulating maximum allowable cost prices and product
 1299  availability.
 1300         (3) A contract between a health insurer and a pharmacy
 1301  benefit manager must prohibit the pharmacy benefit manager from
 1302  limiting a pharmacist’s ability to disclose whether the cost
 1303  sharing obligation exceeds the retail price for a covered
 1304  prescription drug, and the availability of a more affordable
 1305  alternative drug, pursuant to s. 465.0244.
 1306         (4) A contract between a health insurer and a pharmacy
 1307  benefit manager must prohibit the pharmacy benefit manager from
 1308  requiring an insured to make a payment for a prescription drug
 1309  at the point of sale in an amount that exceeds the lesser of:
 1310         (a) The applicable cost-sharing amount; or
 1311         (b) The retail price of the drug in the absence of
 1312  prescription drug coverage.
 1313         Section 17. Subsections (2), (3), and (4) of section
 1314  627.6572, Florida Statutes, are amended to read:
 1315         627.6572 Pharmacy benefit manager contracts.—
 1316         (2) In addition to the requirements of part VII of chapter
 1317  626, a contract between a health insurer and a pharmacy benefit
 1318  manager must require that the pharmacy benefit manager:
 1319         (a) Update maximum allowable cost pricing information at
 1320  least every 7 calendar days.
 1321         (b) Maintain a process that will, in a timely manner,
 1322  eliminate drugs from maximum allowable cost lists or modify drug
 1323  prices to remain consistent with changes in pricing data used in
 1324  formulating maximum allowable cost prices and product
 1325  availability.
 1326         (3) A contract between a health insurer and a pharmacy
 1327  benefit manager must prohibit the pharmacy benefit manager from
 1328  limiting a pharmacist’s ability to disclose whether the cost
 1329  sharing obligation exceeds the retail price for a covered
 1330  prescription drug, and the availability of a more affordable
 1331  alternative drug, pursuant to s. 465.0244.
 1332         (4) A contract between a health insurer and a pharmacy
 1333  benefit manager must prohibit the pharmacy benefit manager from
 1334  requiring an insured to make a payment for a prescription drug
 1335  at the point of sale in an amount that exceeds the lesser of:
 1336         (a) The applicable cost-sharing amount; or
 1337         (b) The retail price of the drug in the absence of
 1338  prescription drug coverage.
 1339         Section 18. Paragraph (e) is added to subsection (46) of
 1340  section 641.31, Florida Statutes, to read:
 1341         641.31 Health maintenance contracts.—
 1342         (46)
 1343         (e)This subsection applies to a pharmacy benefit manager
 1344  acting on behalf of a health maintenance organization.
 1345         Section 19. Subsections (2), (3), and (4) of section
 1346  641.314, Florida Statutes, are amended to read:
 1347         641.314 Pharmacy benefit manager contracts.—
 1348         (2) In addition to the requirements of part VII of chapter
 1349  626, a contract between a health maintenance organization and a
 1350  pharmacy benefit manager must require that the pharmacy benefit
 1351  manager:
 1352         (a) Update maximum allowable cost pricing information at
 1353  least every 7 calendar days.
 1354         (b) Maintain a process that will, in a timely manner,
 1355  eliminate drugs from maximum allowable cost lists or modify drug
 1356  prices to remain consistent with changes in pricing data used in
 1357  formulating maximum allowable cost prices and product
 1358  availability.
 1359         (3) A contract between a health maintenance organization
 1360  and a pharmacy benefit manager must prohibit the pharmacy
 1361  benefit manager from limiting a pharmacist’s ability to disclose
 1362  whether the cost-sharing obligation exceeds the retail price for
 1363  a covered prescription drug, and the availability of a more
 1364  affordable alternative drug, pursuant to s. 465.0244.
 1365         (4) A contract between a health maintenance organization
 1366  and a pharmacy benefit manager must prohibit the pharmacy
 1367  benefit manager from requiring a subscriber to make a payment
 1368  for a prescription drug at the point of sale in an amount that
 1369  exceeds the lesser of:
 1370         (a) The applicable cost-sharing amount; or
 1371         (b) The retail price of the drug in the absence of
 1372  prescription drug coverage.
 1373         Section 20. (1)This act establishes requirements for
 1374  pharmacy benefit managers as defined in s. 626.88, Florida
 1375  Statutes, including, without limitation, pharmacy benefit
 1376  managers in their performance of services for or otherwise on
 1377  behalf of a pharmacy benefits plan or program as defined in s.
 1378  626.8825, Florida Statutes, which includes coverage pursuant to
 1379  Titles XVIII, XIX, or XXI of the Social Security Act, 42 U.S.C.
 1380  ss. 1395 et seq., 1396 et seq., and 1397aa et seq., known as
 1381  Medicare, Medicaid, or any other similar coverage under a state
 1382  or Federal Government funded health plan, including the
 1383  Statewide Medicaid Managed Care program established pursuant to
 1384  part IV of chapter 409, Florida Statutes, and the state group
 1385  insurance program pursuant to part I of chapter 110, Florida
 1386  Statutes.
 1387         (2)This act is not intended, nor may it be construed, to
 1388  conflict with existing, relevant federal law.
 1389         (3)If any provision of this act or its application to any
 1390  person or circumstances is held invalid, the invalidity does not
 1391  affect other provisions or applications of this act which can be
 1392  given effect without the invalid provision or application, and
 1393  to this end the provisions of this act are severable.
 1394         Section 21. For the 2023-2024 fiscal year, the sum of
 1395  $980,705 in recurring funds and $146,820 in nonrecurring funds
 1396  from the Insurance Regulatory Trust Fund are appropriated to the
 1397  Office of Insurance Regulation, and 10 full-time equivalent
 1398  positions with associated salary rate of 644,877 are authorized,
 1399  for the purpose of implementing this act.
 1400         Section 22. This act shall take effect July 1, 2023.