Calculation of contribution to out-of-pocket and cost-sharing requirements - exception - definition - rules

(1) (a) When calculating a covered person's overall contribution to an out-of-pocket maximum or cost-sharing requirement under the covered person's health benefit plan, a carrier or PBM shall include any amount paid by the covered person or by another person on behalf of the covered person for a prescription drug if:

(I) The prescription drug does not have a generic equivalent or, for a prescription drug that is a biological product, the prescription drug does not have a biosimilar drug, as defined in 42 U.S.C. sec. 262 (i)(2), or an interchangeable biological product, as defined in 42 U.S.C. sec. 262 (i)(3); or

(II) The prescription drug has a generic equivalent, a biosimilar drug, or an interchangeable biological product, and the covered person is using the brand-name prescription drug after:

(A) Obtaining prior authorization from the carrier or pharmacy benefit manager;

(B) Complying with a step-therapy protocol required by the carrier or pharmacy benefit manager; or

(C) Receiving approval from the carrier or pharmacy benefit manager through the carrier's or pharmacy benefit manager's exceptions, appeal, or review process.

(b) A covered person is not required to comply with the utilization management processes described in subsection (1)(a)(II) of this section, including prior authorization and step-therapy protocol requirements, when those processes are prohibited under this article 16 or other applicable state law.

(2) If application of subsection (1) of this section would make a covered person's health savings account contributions ineligible under section 223 of the federal Internal Revenue Code of 1986, 26 U.S.C. sec. 223, as amended, subsection (1) of this section applies to the deductible applicable to the covered person's health benefit plan after the covered person has satisfied the minimum deductible amount under 26 U.S.C. sec. 223; except that, with respect to items or services that are preventive care pursuant to 26 U.S.C. sec. 223 (c)(2)(C), subsection

(1) of this section applies, regardless of whether the minimum deductible under 26 U.S.C. sec. 223 has been satisfied.

(3) The commissioner may adopt rules as necessary to implement this section.

(4) As used in this section, cost-sharing requirement means any copayment, coinsurance, deductible, or annual limitation on cost sharing, including a limitation subject to 42 U.S.C. sec. 18022 (c) or 42 U.S.C. sec. 300gg-6 (b), required by or on behalf of a covered person in order to receive a prescription drug covered by the covered person's health benefit plan, whether covered as a medical or pharmacy benefit.