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(1) The short title of this section is the Pharmacy Fairness Act.
(2) (a) Starting in 2022, each carrier shall submit to the commissioner, contemporaneously with its rate filing pursuant to section 10-16-107 and in a form and manner specified by the commissioner by rule, a list of all pharmacy benefit managers the carrier contracts with or otherwise uses for claims processing services or other prescription drug or device services under health coverage plans the carrier offers.
(b) The list of PBMs submitted to the commissioner pursuant to this subsection (2) is considered proprietary and confidential information and is not subject to disclosure under the Colorado Open Records Act, part 2 of article 72 of title 24.
(2.5) (a) Starting in 2024, a person shall not establish or operate as a PBM in this state unless the person has registered with the commissioner in accordance with this subsection (2.5) and commissioner rules. Notwithstanding the definition of a PBM in section 10-16-102 (49), this registration requirement applies to all PBMs doing business in this state, including a PBM that is not directly connected with a carrier.
(b) (I) The commissioner shall establish, by rule, the form and manner for a person to register with the commissioner and shall charge application and renewal fees as established by rule. The commissioner shall set registration fees at amounts that are commensurate with the amounts of registration fees assessed in other states.
(II) The commissioner may deny a registration to a PBM; suspend, revoke, or refuse to issue, continue, or renew the registration of a PBM; or issue a cease-and-desist order to a PBM if, after notice to the PBM and after a hearing held in accordance with sections 24-4-104 and 24-4-105, the commissioner finds that the PBM, or an officer, director, or employee of the PBM, has:
(A) Made a material misstatement, misrepresentation, or omission in a registration or registration renewal application;
(B) Fraudulently or deceptively obtained or attempted to obtain a registration or renewal of a registration;
(C) In connection with the administration of prescription drug benefits management services, committed fraud or engaged in illegal or dishonest activities; or
(D) Violated any provision of this title 10.
(III) A determination of the commissioner is a final agency action subject to judicial review pursuant to section 24-4-106.
(c) The commissioner shall transmit any fees collected pursuant to this subsection (2.5) to the state treasurer for deposit in the division of insurance cash fund created in section 10-1-103 (3). The commissioner shall use the fees collected pursuant to this subsection (2.5) to fund the division's costs in administering and enforcing this subsection (2.5) and the requirements and prohibitions on the conduct and actions of PBMs as specified in this article 16.
(3) A PBM or the representative of a PBM shall not:
(a) (I) With regard to individual and group health benefit plans, preclude covered persons from accessing prescription drug benefits under the health benefit plan at an in-network retail pharmacy unless:
(A) The FDA has restricted distribution of the prescription drug; or
(B) The prescription drug requires special handling, provider coordination, or patient education that cannot be provided by a retail pharmacy.
(II) A health benefit plan may impose a different cost-sharing amount for obtaining a covered prescription drug at a retail pharmacy, but all cost sharing must count towards the plan's annual limitation on cost sharing specified in 45 CFR 156.130 and must be accounted for in the plan's actuarial value calculated under 45 CFR 156.135.
(b) Charge a pharmacy or pharmacist a fee related to the adjudication of a pharmacist services claim, other than a one-time, reasonable fee, not to exceed the lesser of twenty-five percent of the pharmacy dispensing fee or twenty-five cents, for receipt and processing of the same pharmacist services claim;
(c) Require pharmacy accreditation standards or certification requirements inconsistent with, more stringent than, or in addition to requirements applicable to similarly situated PBM-affiliated pharmacies within the same PBM network; or
(d) (I) Prohibit a rural independent pharmacy from using a private courier or a delivery service to deliver a prescription drug to a patient; or
(II) Require a rural independent pharmacy to obtain consent from the PBM to use a private courier or delivery service to deliver a prescription drug to a patient.
(4) This section does not apply to the administration or management of the drug assistance program authorized pursuant to section 25-4-1401.
(4.5) With regard to the requirements of this section applicable to PBMs, the commissioner has the authority to enforce this section and to impose a penalty or other remedy against a PBM that fails to comply with this section.
(4.7) The commissioner may adopt rules to implement and enforce this section.
(5) As used in this section and section 10-16-122.9, unless the context otherwise requires:
(a) Claims processing services means the administrative services performed in connection with processing and adjudicating claims related to pharmacist services, which services include:
(I) Receiving payments for pharmacist services; or
(II) Making payments to pharmacies or pharmacists for pharmacist services.
(b) Other prescription drug or device services means services, other than claims processing services, provided directly or indirectly and either in connection with or separate from claims processing services. The term includes:
(I) Managing or participating in incentive programs or arrangements for pharmacist services;
(II) Negotiating or entering into contractual arrangements with pharmacies or pharmacists;
(III) Developing formularies;
(IV) Designing prescription drug benefits programs; and
(V) Advertising or promoting services.
(c) PBM-affiliated pharmacy means a pharmacy or pharmacist that, either directly or indirectly through one or more intermediaries, owns or controls or is owned or controlled by a PBM.
(d) PBM network means a network of pharmacies or pharmacists that are offered an agreement or contract to provide pharmacist services for a health benefit plan.
(e) Pharmacist has the same meaning as set forth in section 12-280-103
(35).
(f) Pharmacist services means products, goods, and services provided as a part of the practice of pharmacy, as defined in section 12-280-103 (39).
(g) Pharmacy has the same meaning as set forth in section 12-280-103
(43).