23 CAR Part 148 — Fair and Reasonable Pharmacy Reimbursements

Chapter I

Subchapter B

Subpart 1

23 CAR § 148-101 Definitions {#sec-23-car-148-101 omnilex-key=us-ar-regs-official--title-23-part-148--23 CAR § 148-101}

23 CAR § 148-101. Definitions.

(a) Unless otherwise defined in this section, the definitions in the Arkansas Pharmacy Benefits Manager Licensure Act, Arkansas Code § 23-92-501 et seq., shall apply to the provisions in this part.

(b) As used in this part:

(1) “Fair and reasonable pharmacy compensation program” means the Insurance Commissioner’s determination of whether a current or proposed health benefit plan’s pharmacy reimbursements result in an adequate network of pharmacies for a health benefit plan; and

(2) “Subscriber” means an insured, enrollee, or certificate holder of a health benefit plan as defined under Arkansas Code § 23-92-503(2).

23 CAR § 148-102 Applicability {#sec-23-car-148-102 omnilex-key=us-ar-regs-official--title-23-part-148--23 CAR § 148-102}

23 CAR § 148-102. Applicability.

(a) This part applies to all:

(1) Health benefit plans as defined in Arkansas Code § 23-92-503(2); and

(2) Healthcare payors as defined in Arkansas Code § 23-92-503(3).

(b) The requirements of this part shall not apply to:

(1) Federally regulated health benefit plans restricted from state regulation under federal law; or

(2) Those health benefit plans that are exempted from state regulation under state law.

23 CAR § 148-103 Fair and reasonable reimbursements {#sec-23-car-148-103 omnilex-key=us-ar-regs-official--title-23-part-148--23 CAR § 148-103}

23 CAR § 148-103. Fair and reasonable reimbursements.

(a)(1) Pursuant to Arkansas Code § 23-92-506(a)(1), the Insurance Commissioner may review and approve the compensation program of a pharmacy benefits manager (PBM) from a health benefit plan to ensure that the reimbursement for pharmacist services paid to a pharmacist or pharmacy is fair and reasonable to provide an adequate pharmacy benefits manager network for a health benefit plan.

(2) The provisions of this part are specifically issued related to cost processes, and not plan benefit design, to help ensure the subject of network adequacy or reasonably sustainable network adequacy of pharmacy services for health benefit plans.

(b) The commissioner finds that current pharmacy reimbursement minimums under the Arkansas Pharmacy Benefits Manager Licensure Act, Arkansas Code § 23-92-501 et seq., or payments within a close range to minimums of National Average Drug Acquisition Cost (NADAC), or maximum allowable cost (MAC), that do not also include a reasonable cost to dispense to pharmacies may impair the sustainability of network adequacy for pharmacy services for health benefit plans.

(c)(1) To ensure an adequate network of pharmacy services for a health benefit plan, or to ensure a reasonably sustainable adequate network for such services, a health benefit plan, through its pharmacy benefits plan or program, may be required to include a fair and reasonable cost to dispense to pharmacies in its administration of drug benefits under its health benefit plan upon and after a review of whether it has a fair and reasonable pharmacy compensation program to ensure an adequate network of pharmacies.

(2) For health benefit plans that are required to pay an additional dispensing cost under this part, a health benefit plan may not require a subscriber to pay for the dispensing cost outside of the amounts the health benefit plan has designated as the copay, coinsurance, and deductible.

(3) Every health benefit plan or healthcare payor subject to the Arkansas Pharmacy Benefits Manager Licensure Act shall file with the commissioner, beginning on November 30, 2024, and no later than by February 17, 2025, a written report describing each healthcare payor’s pharmacy compensation data as required by Bulletin # 18-2024 by the State Insurance Department.

(4) This requirement shall apply to plan year 2025 and thereafter on such dates as mandated by the department’s implementation Bulletin # 18-2024.

(5) Upon receipt of the data as required by Bulletin # 18-2024, the commissioner is authorized to require an additional dispensing cost if the health benefit plan does not already provide a fair and reasonable pharmacy compensation program to ensure an adequate network of pharmacies.

(6) The commissioner shall be authorized to review, approve, or deny such dispensing cost requirement, in consultation with the actuary for the department.

(7) The commissioner shall make his or her decision to approve or deny such cost calculation within twenty (20) working days of receipt of such report from a healthcare payor and notify the submitting healthcare payor of his or her decision in writing.

(8) The commissioner may extend such time periods for his or her decision in the event that the commissioner needs additional data from the healthcare payor.

(9) The commissioner shall issue a bulletin with the promulgation of this part more specifically addressing the format, procedures, and information requirements required for such submissions as required under this section.

(10) Bulletin # 18-2024 is hereby incorporated as part of this part.

(11) Bulletin # 18-2024 shall not be amended without filing such amendments as an amended promulgation of this part.

(d) Confidentiality of data required by department bulletin.

(1) Pursuant to Arkansas Code § 23-92-506(a)(2), all data acquired by the department for review of a pharmacy compensation program under this part or Bulletin # 18-2024 shall be considered proprietary and confidential under Arkansas Code § 23-61-107(a)(4) and § 23-61-207, and shall not be subject to the Freedom of Information Act of 1967, Arkansas Code § 25-19-101 et seq.

(2) However, the average dispensing fee per healthcare payor that is approved will be published annually.

(e) Upon its adoption by the Legislative Council and legal effective date, this permanent rule shall replace any earlier issued emergency rule.

(f)(1) For health plan calendar year 2025, for health benefit plans required to pay an additional dispensing cost under this part, the requirement shall apply only on a going-forward or prospective basis to drug reimbursements by the plan that calendar year, thirty (30) days from the date of the written decision requiring the dispensing cost from the commissioner.

(2) For health plan calendar years 2026 and thereafter, such dispensing costs, if required, shall apply on January 1 of each year for which the review is submitted.

23 CAR § 148-104 Violations {#sec-23-car-148-104 omnilex-key=us-ar-regs-official--title-23-part-148--23 CAR § 148-104}

23 CAR § 148-104. Violations.

Violations of any provision of this part shall be subject to the fines or penalties under Arkansas Code § 23-92-508.