1367.52. (a) An enrollee’s defined cost sharing for each prescription drug shall be calculated at the point of sale based on a price that is reduced by an amount equal to at least 90 percent of all rebates received, or to be received, in connection with the dispensing or administration of the drug.
(1) The health care service plan shall pass through to each enrollee at the point of sale a good faith estimate of the enrollee’s decrease in cost sharing required pursuant to this subdivision.
(2) In addition to the pass through at the point of sale described in paragraph (1), the health care service plan shall provide the enrollee
with an end-of-calendar-year reconciliation for any cost-sharing reductions owed to the enrollee pursuant to this subdivision that were not passed on to the enrollee through the estimated amount at the point of sale.
(b) Each health care service plan shall, either directly or indirectly through its agents, calculate the enrollee’s defined cost sharing and provide the dispensing pharmacy with the enrollee’s defined cost sharing for each prescription drug as required pursuant to subdivision (a). Nothing in this subdivision authorizes a health care service plan or its agents to publish or otherwise reveal information prohibited from disclosure pursuant to subdivision (e).
(c) Neither a pharmacy nor a pharmacist licensed pursuant to Chapter 9 (commencing with Section 4000) of
Division 2 of the Business and Professions Code shall have any liability, penalty, or be subject to any disciplinary action if such information has not been provided by the health care service plan providing the benefit to the pharmacy’s customer. A health care service plan nor its contracted agents shall not impose any form of monetary penalty or withhold any payments for a pharmacy that engaged in good faith efforts to comply with this statute.
(d) This section does not prohibit a health care service plan from decreasing an enrollee’s defined cost sharing by an amount greater than that required pursuant to subdivision (a).
(e) A health care service plan shall disclose
information, including, but not limited to, wholesale acquisition cost and actual amounts of rebates, sufficient to show compliance with this section to the director upon request. A health care service plan and the director, and their respective agents, shall not publish or otherwise reveal information regarding the actual amount of rebates the health care service plan receives on a product-specific, manufacturer-specific, or pharmacy-specific basis. That information is protected as a trade secret, is not a public record as defined in the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), and shall not be disclosed directly or indirectly. A health care service plan shall impose the confidentiality protections of this section on a vendor or downstream third party that performs health care or administrative
services on behalf of the health care service plan and that may receive or have access to rebate information.
(f) (1) The director may, after appropriate notice and opportunity for hearing in accordance with the Administrative Procedure Act (Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code), by order, assess a civil penalty not to exceed five thousand dollars ($5,000) for each violation of this section, or, if a violation was determined to be willful, a civil penalty not to exceed ten thousand dollars ($10,000) for each violation of this section.
(2) A violation of this section does not constitute a crime under Section 1390.
(g) This section
shall not be interpreted or implemented in a manner inconsistent with federal law. The provisions of this section are severable. If a provision of this section or its application is held invalid or incapable of being enforced against a health care service plan due to a conflict with federal requirements, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
(h) For purposes of this section:
(1) “Defined cost sharing” means a deductible payment or coinsurance amount imposed on an enrollee for a covered prescription drug under the enrollee’s health care service plan contract.
(2) “Health care service plan” shall have the meaning set forth in
Section 1345 and includes a specialized health care service plan.
(3) “Price protection rebate” means a negotiated price concession that accrues directly or indirectly to a health care service plan, or other party on behalf of the health care service plan, in the event of an increase in the wholesale acquisition cost of a drug above a specified threshold.
(4) “Rebate” means both of the following:
(A) Negotiated price concessions, including base price concessions, whether or not described as a “rebate,” and reasonable, good faith estimates of price protection rebates and performance-based price concessions from a manufacturer, dispensing pharmacy, or other party in connection with the dispensing or administration of a
prescription drug that may accrue directly or indirectly to the health care service
plan, or other party on behalf of the health care service plan, including, but not limited to, health care service plan-owned pharmacy benefit managers, during a calendar year.
(B) Reasonable, good faith estimates of negotiated price concessions, fees, and other administrative costs that are passed through, or are reasonably anticipated to be passed through, to the health care service plan and serve to reduce the health care service plan’s liabilities for a prescription drug.
(i) (1) On or before March 1 each year, the department shall provide a report on this section’s impact on drug prices and health care premium rates to the appropriate policy committees.
(2) The report required to be submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795 of the Government Code.
(j) Subdivisions (a) to (h), inclusive, of this section shall become inoperative on January 1, 2025.
(k) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.