Bill Text: MS HB1490 | 2012 | Regular Session | Introduced
Bill Title: Pharmacy Audit Integrity Act; revise certain provisions of.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Enrolled - Dead) 2012-04-18 - Due From Governor 04/24/12 [HB1490 Detail]
Download: Mississippi-2012-HB1490-Introduced.html
MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Public Health and Human Services
By: Representative Hamilton
House Bill 1490
AN ACT TO AMEND SECTIONS 73-21-179 AND 73-21-183, MISSISSIPPI CODE OF 1972, TO PRESCRIBE THE PROCEDURES FOR CONDUCTING AN AUDIT UNDER THE PHARMACY AUDIT INTEGRITY ACT; TO CODIFY NEW SECTION 73-21-191, MISSISSIPPI CODE OF 1972, TO AUTHORIZE MONETARY PENALTIES TO BE IMPOSED ON PHARMACY BENEFIT MANAGERS FOR NONCOMPLIANCE WITH THE PHARMACY AUDIT INTEGRITY ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 73-21-179, Mississippi Code of 1972, is amended as follows:
73-21-179. For purposes of Sections 73-21-175 through 73-21-189:
(a) "Entity" means a pharmacy benefit manager, a managed care company, a health plan sponsor, an insurance company, a third-party payor, a state agency, or any company, group or agent that represents or is engaged by those entities.
(b) "Health insurance plan" means benefits consisting of prescription drugs, other products and supplies, and pharmacist services provided directly, through insurance or reimbursement, or otherwise and including items and services paid for as prescription drugs, other products and supplies, and pharmacist services under any hospital or medical service policy or certificate, hospital or medical service plan contract, preferred provider organization agreement, or health maintenance organization contract offered by a health insurance issuer, unless preempted as an employee benefit plan under the Employee Retirement Income Security Act of 1974. However, "health insurance coverage" shall not include benefits due under the workers' compensation laws of this or any other state.
(c) "Pharmacy benefit manager" means a business that administers the prescription drug/device portion of pharmacy benefit management plans or health insurance plans on behalf of plan sponsors, insurance companies, unions and health maintenance organizations. Pharmacy benefit managers may also provide some, all, but may not be limited to, the following services either directly or through outsourcing or contracts with other entities:
(i) Adjudicate drug claims or any portion of the transaction.
(ii) Contract with retail and mail pharmacy networks.
(iii) Establish payment levels for pharmacies.
(iv) Develop formulary or drug list of covered therapies.
(v) Provide benefit design consultation.
(vi) Manage cost and utilization trends.
(vii) Contract for manufacturer rebates.
(viii) Provide fee-based clinical services to improve member care.
(ix) Third-party administration.
(d) "Pharmacy benefit management plan" means an arrangement for the delivery of pharmacist's services in which a pharmacy benefit manager undertakes to administer the payment or reimbursement of any of the costs of pharmacist's services for an enrollee on a prepaid or insured basis that (i) contains one or more incentive arrangements intended to influence the cost or level of pharmacist's services between the plan sponsor and one or more pharmacies with respect to the delivery of pharmacist's services; and (ii) requires or creates benefit payment differential incentives for enrollees to use under contract with the pharmacy benefit manager. A pharmacy benefit management plan does not mean the Mississippi State and School Employees Health Insurance Plan or the programs operated by the Mississippi Division of Medicaid.
(e) "Pharmacist," "pharmacist services" and "pharmacy" or "pharmacies" shall have the same definitions as provided in
Section 73-21-73.
SECTION 2. Section 73-21-183, Mississippi Code of 1972, is amended as follows:
73-21-183. (1) The entity conducting an audit shall follow these procedures:
(a) The pharmacy contract must identify and describe in detail the audit procedures;
(b) The entity conducting the on-site or desk audit must give the pharmacy written notice at least two (2) weeks before conducting the initial on-site or desk audit for each audit cycle;
(c) The entity conducting the on-site or desk audit shall not interfere with the delivery of pharmacist services to a patient and shall utilize every effort to minimize inconvenience and disruption to pharmacy operations during the audit process;
(d) Any audit that involves clinical or professional judgment must be conducted by or in consultation with a pharmacist;
(e) Any clerical or record-keeping error, such as a typographical error, scrivener's error, or computer error, regarding a required document or record shall not necessarily constitute fraud; however, those claims may be subject to recoupment. No such claim shall be subject to criminal penalties without proof of intent to commit fraud;
(f) A pharmacy may use the records of a hospital, physician, or other authorized practitioner of the healing arts for drugs or medicinal supplies written or transmitted by any means of communication for purposes of validating the pharmacy record with respect to orders or refills of a legend or narcotic drug;
(g) A finding of an overpayment or an underpayment may be a projection based on the number of patients served having a similar diagnosis or on the number of similar orders or refills for similar drugs, except that recoupment shall be based on the actual overpayment or underpayment;
(h) A finding of an overpayment shall not include the dispensing fee amount unless a prescription was not dispensed;
(i) Each pharmacy shall be audited under the same standards and parameters as other similarly situated pharmacies audited by the entity;
(j) The period covered by an audit may not exceed two (2) years from the date the claim was submitted to or adjudicated by a managed care company, nonprofit hospital or medical service organization, insurance company, third-party payor, pharmacy benefit manager, a health program administered by a department of the state or any entity that represents those companies, groups, or department; * * *
(k) An audit may not be initiated or scheduled during the first five (5) calendar days of any month due to the high volume of prescriptions filled in the pharmacy during that time unless otherwise consented to by the pharmacy;
(l) Any prescription that complies with state law and rule requirements may be used to validate claims in connection with prescriptions, refills or changes in prescriptions;
(m) An exit interview that provides a pharmacy with an opportunity to respond to questions and comment on and clarify findings must be conducted at the end of an audit. The time of the interview must be agreed to by the pharmacy;
(n) Unless superseded by state or federal law, auditors shall only have access to previous audit reports on a particular pharmacy conducted by the auditing entity for the same pharmacy benefits manager, health plan or insurer. An auditing vendor contracting with multiple pharmacy benefits managers or health insurance plans shall not use audit reports or other information gained from an audit on a particular pharmacy to conduct another audit for a different pharmacy benefits manager or health insurance plan;
(o) Any recoupment may not be deducted against future remittances and must be invoiced to the pharmacy for payment;
(p) The parameters of an audit must comply with consumer-oriented parameters based on manufacturer listings or recommendations for the following:
(i) The day supply for eyedrops must be calculated so that the consumer pays only one (1) thirty-day copayment if the bottle of eyedrops is intended by the manufacturer to be a thirty-day supply.
(ii) The day supply for insulin must be calculated so that the highest dose prescribed is used to determine the day supply and consumer copayment.
(iii) The day supply for a topical product must be determined by the judgment of the pharmacist based upon the treated area;
(q) (i) Where an audit is for a specifically identified problem that has been disclosed to the pharmacy, the audit shall be limited to claims that are identified by prescription number.
(ii) For an audit other than described in subparagraph (i) of this paragraph (q), an audit shall be limited to twenty-five (25) prescriptions that have been randomly selected.
(iii) If an audit reveals the necessity for a review of additional claims, the audit shall be conducted on site.
(iv) Except for audits initiated under paragraph (i), an entity shall not initiate an audit of a pharmacy more than two (2) times in a calendar year;
(r) A recoupment shall not be based on:
(i) Documentation requirements in addition to or exceeding requirements for creating or maintaining documentation prescribed by the State Board of Pharmacy; or
(ii) A requirement that a pharmacy or pharmacist perform a professional duty in addition to or exceeding professional duties prescribed by the State Board of Pharmacy;
(s) Except for Medicare claims, approval of drug, prescriber or patient eligibility upon adjudication of a claim shall not be reversed unless the pharmacy or pharmacist obtained the adjudication by fraud or misrepresentation of claim elements; and
(t) A commission or other payment to an agent or employee of the entity conducting the audit is not based, directly or indirectly, on amounts recouped.
(2) The entity must provide the pharmacy with a written report of the audit and comply with the following requirements:
(a) The preliminary audit report must be delivered to the pharmacy within one hundred twenty (120) days after conclusion of the audit, with a reasonable extension to be granted upon request;
(b) A pharmacy shall be allowed at least thirty (30) days following receipt of the preliminary audit report in which to produce documentation to address any discrepancy found during the audit, with a reasonable extension to be granted upon request;
(c) A final audit report shall be delivered to the pharmacy within one hundred eighty (180) days after receipt of the preliminary audit report or final appeal, as provided for in Section 73-21-185, whichever is later;
(d) The audit report must be signed by the auditor;
(e) Recoupments of any disputed funds, or repayment of funds to the entity by the pharmacy if permitted pursuant to contractual agreement, shall occur after final internal disposition of the audit, including the appeals process as set forth in Section 73-21-185. If the identified discrepancy for an individual audit exceeds Twenty-five Thousand Dollars ($25,000.00), future payments in excess of that amount to the pharmacy may be withheld pending finalization of the audit;
(f) Interest shall not accrue during the audit period; and
(g) Each entity conducting an audit shall provide a copy of the final audit report, after completion of any review process, to the plan sponsor.
(3) Claims that have been submitted and adjudicated at the point of sale shall not be subject to recoupment or criminal penalties except in instances where intent to commit fraud is proven.
SECTION 3. The following provision shall be codified as Section 73-21-191, Mississippi Code of 1972:
73-21-191. (1) The State Board of Pharmacy may impose a monetary penalty on pharmacy benefit managers for noncompliance with the provisions of the Pharmacy Audit Integrity Act, Sections 73-21-175 through 73-21-189, in amounts of not less than One Thousand Dollars ($1,000.00) per violation and not more than Fifty Thousand Dollars ($50,000.00) per violation. Any penalty collected under this subsection (1) shall be deposited into the special fund of the board to support the operations of the Pharmacy Audit Integrity Act.
(2) The board may assess a monetary penalty for those reasonable costs that are expended by the board in the investigation and conduct of a proceeding if the board imposes a monetary penalty under subsection (1) of this section. A monetary penalty assessed and levied under this section shall be paid to the board by the licensee, registrant or permit holder upon the expiration of the period allowed for appeal of those penalties under Section 73-21-101, or may be paid sooner if the licensee, registrant or permit holder elects. Money collected by the board under this subsection (2) shall be deposited to the credit of the special fund of the board.
(3) When payment of a monetary penalty assessed and levied by the board against a licensee, registrant or permit holder in accordance with this section is not paid by the licensee, registrant or permit holder when due under this section, the board shall have the power to institute and maintain proceedings in its name for enforcement of payment in the chancery court of the county and judicial district of residence of the licensee, registrant or permit holder, or if the licensee, registrant or permit holder is a nonresident of the State of Mississippi, in the Chancery Court of the First Judicial District of Hinds County, Mississippi. When those proceedings are instituted, the board shall certify the record of its proceedings, together with all documents and evidence, to the chancery court and the matter shall be heard in due course by the court, which shall review the record and make its determination thereon. The hearing on the matter may, in the discretion of the chancellor, be tried in vacation.
(4) The board shall develop and implement a uniform penalty policy that sets the minimum and maximum penalty for any given violation of board regulations and laws governing the practice of pharmacy. The board shall adhere to its uniform penalty policy except in those cases where the board specifically finds, by majority vote, that a penalty in excess of, or less than, the uniform penalty is appropriate. That vote shall be reflected in the minutes of the board and shall not be imposed unless it appears as having been adopted by the board.
SECTION 4. This act shall take effect and be in force from and after July 1, 2012.
