Originally Appeared on the Tennessee Pharmacists Association website August 8, 2021
Pharmacy’s biggest success during this year’s legislative session was the enactment of Public Chapter 569, one of the most progressive pharmacy benefit manger (PBM) reform bills in the country. This law was a collaborative effort between TPA and a coalition of providers and patient advocacy groups to bring much-needed changes to the regulation of PBMs. By working together and placing Tennessee patients first, TPA members sent a loud and clear message to legislators and the PBM industry that patients deserve the right to choose their pharmacy provider, and protecting the pharmacy profession from Fortune 20 prescription drug middlemen is essential to the state of Tennessee. More information about the current status of the PBM law, as well as a recap of other pieces of legislation, is found below.
TPA recognizes and thanks the Legislative and Regulatory Committee members of TPA and the Tennessee Society of Health-System Pharmacists, legislative members of the Tennessee General Assembly, and especially all of our dedicated TPA members, for your ongoing efforts to improve the health and lives of fellow Tennesseans! Grassroots engagement by pharmacy advocates remains the driving force behind our legislative victories.
We want to also recognize and thank the Tennessee Pharmacists Political Action Committee (PharmPAC) leaders and contributors. Without your generous contributions, advancements in pharmacy practice in Tennessee would not be possible.
There is still much work to be done in the future. Advocacy efforts continue, and financial support for PharmPAC is NEEDED and GREATLY APPRECIATED throughout the year. PharmPAC Chair Leslie Shephard Wolfe and Vice-Chair Lacey Sexton continue to work to encourage active engagement in legislative efforts through support for PharmPAC. Giving to PharmPAC is a direct investment in your professional future. All contributions are appreciated, and no amount is too great or too small! We will need your support to ensure our legislative victories continue to make an impact. Please give today!
The legislative fight to advance, promote, and protect patient access to high-quality, pharmacist-provided care in Tennessee is a year round effort, and TPA encourages each of you to get active, to engage with your legislators, and to play a leading role in moving pharmacy forward!
PHARMACY LEGISLATION ENACTED IN 2021
2021 PBM Reform Law
TPA worked with several organizations in the Patients for Access, Choice and Transparency Coalition to get this piece of legislation passed. Through a number of amendments and weeks of discussion, the bill ended with a final House floor vote of 88 ayes, 1 nay, and 1 present not voting, and a final Senate floor vote of 28 ayes, 4 nays, and 1 present not voting. Your collective voice as a pharmacy community sent a clear message that patients deserve access and choice, and that pharmacies deserve fairness, protection, and transparency with regard to PBM practices in the state.
Law: Public Chapter 569
House Sponsor(s): Helton, Clemmons, Smith, Rudder, Faison, Bricken, Lafferty, Powers, Sparks, Mannis, Littleton, Grills, Warner, Hurt, Terry, Whitson, Garringer, Kumar, Moon, Eldridge, Hall, Hakeem, Ramsey, T. Hicks, Mitchell, Cepicky, Hawk, Sherrell, Griffey, Casada, Weaver, Alexander, Moody, Crawford, Reedy, Hodges, Russell, Cochran, Leatherwood, J. Sexton, Wright, Calfee, Farmer, Garrett, Freeman, Beck, Lynn, Zachary, Jernigan, Windle, Powell, Curtis Johnson, Darby, Rudd, Doggett, Ogles, Williams, Haston, Vaughan, Howell, Ragan, Harris, Shaw, Towns, Hardaway, Chism, White, Marsh, Carr, Gant, Keisling, Gloria Johnson, Lamberth, Todd, Miller, Camper
Senate Sponsor(s): Reeves, Bell, Yager, Haile, Swann, Briggs, Campbell, Jackson
Effective Date: July 1, 2021
Description: This act prevents discrimination by PBMs against 340B entities, prevents patient steering to only certain contracted pharmacists, prevents spread pricing, prevents reimbursements below cost, and increases transparency by allowing for real-time benefits analysis. Click here for a detailed summary of the sections of the bill. Key elements of note can be found below:
Section 2(b) of the act states, “A pharmacy benefits manager or a covered entity shall not interfere with the patient’s right to choose a contracted pharmacy or contracted provider of choice in a manner that violates §56-7-2359 or by other means, including inducement, steering, or offering financial or other incentives.”
A covered entity is defined in §56-7-3102. It includes a variety of health insurance issuers, including health programs administered by the state (i.e., state employee health plan), self-insured entities (i.e., ERISA plans), and all other corporations, entities or persons, or an employer, labor union, or other group of persons organized in the state that provides health coverage to covered individuals who are employed or reside in the state.
§56-7-2359 is considered the “any willing pharmacy” statute in the state of Tennessee. It states that no health insurance issuer and no managed health insurance issuer can deny any licensed pharmacy or licensed pharmacist the right to participate as a provider in any policy, contract or plan on the same terms and conditions as are offered to any other provider of pharmacy services under the policy, contract or plan.
In the Rutledge vs PCMA Supreme Court case, there was only a determination that ERISA plans were not exempt from state regulations around cost of prescriptions, with no mention of any willing pharmacy statutes in the state. However, on July 8, 2021, the Tennessee Department of Commerce and Insurance (TDCI) issued a bulletin stating that they believe the legislative intent is for ERISA plans to be included in the requirements of the act and will enforce accordingly.
TPA staff met earlier this week with TDCI staff. They reported that 147 complaints were received by their office from July 1 through August 1. Before a complaint is submitted to their office, the pharmacy should first go through the MAC appeal process with the PBM. In many cases, this process occurs with the assistance of the pharmacy’s PSAO. Additionally, some of the complaints have come in incomplete. It is important that the complaint contains the claim number, BIN, date of service, and any other pertinent information. Pharmacies can submit one complaint form and attach spreadsheets, as long as the PBMs are listed separately. Finally, all complaints must be submitted through the standard online form, and e-mailed complaints will just cause duplication and delay. TDCI did ask for patience as they navigate this piece of legislation. They hope to have complaints resolved within 45 days, but this is the first time the Department has regulated ERISA plans of any sort, and the rationale they are receiving for non-compliance is different from what they have traditionally handled. TPA will continue to work with TDCI to come up with solutions and top priorities.
Please note that this act does not apply to Medicare or Medicaid. Medicare plans cannot be regulated by state policy. Additionally, this act does not apply to Medicaid (TennCare). TennCare already must follow the “any willing pharmacy” law in the state, and was excluded from Section 3 of the bill that dealt with actual cost.
TPA continues to work on implementation of this bill. In August, TPA met with TDCI and will meet later this month with PBM lobbyists in the state. TPA is also working with the Community Pharmacy Enhanced Services Network (CPESN)-TN and CPESN-Northeast Tennessee on materials for pharmacists and patients.
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