OLR Bill Analysis
sSB 445 (File 519, as amended by House "A" and Senate "A")*
AN ACT CONCERNING FAIRNESS IN PHARMACY AND PHARMACY BENEFITS MANAGER CONTRACTS.
This bill includes numerous provisions affecting hospitals and health systems, health care providers, and health carriers (e.g., insurers and HMOs). Specifically, it:
1. prohibits certain pharmacy services contracts from containing a provision prohibiting or penalizing a pharmacist's disclosure of certain information (e.g., therapeutic alternatives or less expensive purchasing methods) to an individual purchasing prescription medication (§ 1);
2. allows indirect purchasers to recover against drug manufacturers for antitrust violations, and allows defendants to avoid duplicative liability if they can prove that the alleged overcharge was passed on by someone else (§ 2);
3. prohibits contracts between a health care provider and certain vendors or agents a health carrier (e.g., insurer or HMO) retains from prohibiting disclosure of (a) billed or allowed amounts, reimbursement rates, or out-of-pocket costs or (b) data related to the all-payer claims database (§ 3);
4. makes changes to hospital electronic health record (EHR) requirements, such as specifically requiring hospitals to send or receive EHRs if requested by a patient or provider under certain conditions (§ 4); and
5. modifies patient notification requirements concerning facility fees charged by hospitals and health systems for outpatient services provided at hospital-based facilities (§ 5).
The bill also makes various minor, technical, and conforming changes.
*Senate Amendment “A” replaces the original bill (File 519) and adds the provisions on antitrust cases against drug manufacturers, contracts between health care providers and health carriers, surprise billing, facility fees, and hospital electronic health records.
*House Amendment “A” removes the provisions in Senate Amendment “A” on (1) surprise billing and (2) changes to annual reporting requirements, definitions, and allowable limits related to facility fees. It also modifies provisions on notification requirements for facility fees and makes a minor change to the provisions on hospital electronic health records.
EFFECTIVE DATE: October 1, 2017, except that the provision on antitrust violations takes effect upon passage.
§ 1 — PHARMACY SERVICES CONTRACTS
Starting January 1, 2018, the bill prohibits a pharmacy services contract entered into between a (1) pharmacist or pharmacy and (2) health carrier (e.g., insurer or HMO) or pharmacy benefits manager from containing a provision prohibiting or penalizing (e.g., increased utilization review, reduced payments, or other financial disincentives) a pharmacist's disclosure of certain information to an individual purchasing prescription medication.
The bill specifies that such information includes (1) the prescription's cost to the individual or (2) availability of any therapeutically equivalent alternative medications or alternative, less expensive methods of purchasing the prescription, including paying the cash price.
Limits on Prescription Payments
Starting January 1, 2018, the bill prohibits a health carrier or pharmacy benefits manager from requiring an individual to pay for a covered prescription medication in an amount greater than the lesser of the (1) applicable copayment, (2) allowable claim amount (i.e., the amount the health carrier or pharmacy benefits manager agreed to pay the pharmacy for the prescription), or (3) amount an individual would pay for the drug if he or she paid without using an insurance plan or other source of drug benefits or discounts.
Violations and Enforcement
A contract that violates the bill's provisions is void and unenforceable. The bill specifies that any contract provision rendered invalid or unenforceable does not affect remaining provisions. The bill also makes any general business practice that violates its provisions an unfair trade practice under the Connecticut Unfair Trade Practices Act (see BACKGROUND).
The bill also grants the insurance commissioner authority to enforce its provisions and audit pharmacy services contracts for compliance.
§ 2 — ANTITRUST CASES AGAINST DRUG MANUFACTURERS
The bill makes two related changes concerning antitrust cases against companies that sell, distribute, or otherwise dispose of drugs or medical devices (e.g., drug manufacturers).
It allows purchasers of these products who did not buy directly from the defendant company (indirect purchasers) to recover against the defendant for an antitrust violation (see BACKGROUND, Related Case). The bill does so by prohibiting such a defendant from raising the defense that it did not deal directly with the person on whose behalf the case was brought.
But the bill allows a defendant, in order to avoid duplicative liability related to an alleged overcharge, to prove that all or part of the overcharge was passed on by someone else in the chain of manufacture, production, or distribution of the drug or device. The bill specifies that the defendant may attempt to prove this as a partial or complete defense.
The bill applies to antitrust cases brought by the attorney general in the name of the state as “parens patriae” on behalf of (1) particular state residents (including class actions) or (2) the state as a whole or a political subdivision of it. It also applies to cases seeking treble damages for antitrust violations that damaged the business or property of the state or any person, including a consumer.
§ 3 — CONTRACTS BETWEEN HEALTH CARE PROVIDERS AND HEALTH CARRIERS
The bill clarifies that a contract between a health care provider and a health carrier cannot contain a provision that prohibits disclosure of (1) billed or allowed amounts, reimbursement rates, or out-of-pocket costs or (2) any data related to the all-payer claims database, and that such information may be used to help consumers and institutional purchasers make informed health care choices and price comparisons.
Starting October 1, 2017, the bill extends the same prohibition to a contract between a health care provider and a health carrier or any agent or vendor the provider retains to provide data or analytical services to evaluate and manage health care services to the health carrier's plan participants.
Under the bill, a contract that violates its provisions is void and unenforceable. Any contract provision rendered invalid or unenforceable does not affect remaining provisions.
§ 4 — HOSPITAL EXCHANGE OF ELECTRONIC HEALTH RECORDS
Existing law requires each licensed hospital, to the fullest extent practicable, to use its EHR system to enable the secure two-way exchange of patient EHRs with other licensed providers who (1) have a system that can exchange these records and (2) provide health care services to a patient whose records are being exchanged.
The bill specifically requires hospitals to provide for such exchange of records. It requires hospitals, to the fullest extent practicable, to send or receive an EHR upon the request of a patient or the patient's health care provider, as long as:
1. the transfer or receipt would be secure, not violate any state or federal law or regulation, and not constitute an identifiable and legitimate security or privacy risk, and
2. for requests from a provider, the patient consents to and has authorized the exchange.
Under the bill, if the hospital believes that such a record transfer would be illegal or present an identifiable and legitimate risk to security or privacy, it must promptly notify the requesting party.
The bill also specifically adds patient admission and transfer records to the definition of “electronic health record” for these purposes.
Current law specifies that the law's provisions on hospital EHR exchange do not require a hospital to pay for any new or additional information technology, equipment, hardware, or software when needed to enable this exchange. The bill specifies that hospitals also are not required to install, construct, or build any such items for this purpose.
The bill also makes minor and technical changes.
As under the existing provisions on hospitals' EHR exchange:
1. a hospital is deemed to have satisfied the bill's requirements if it connects to and actively participates in the Statewide Health Information Exchange, once it becomes operational; and
2. a hospital's failure to take all reasonable steps to comply with the bill constitutes evidence of health information blocking, which is an unfair trade practice (see BACKGROUND).
§ 5 — FACILITY FEES
Patient Notification Requirements
Notice Contents. Under current law, a hospital or health system that charges a facility fee must notify patients receiving outpatient services in writing about their potential financial liability. The notice must provide additional information if the hospital or health system provides outpatient services at a facility that (1) uses current procedural terminology evaluation and management (CPT E/M) codes for outpatient services and (2) expects to charge a separate fee for professional medical services.
The bill modifies the information that must be provided in all such notices to include a telephone number the patient may call for more information, including an estimate of the facility fee likely to be charged based on the scheduled professional medical services.
As under current law, the above notice requirements do not apply to Medicare and Medicaid patients or those receiving services under a workers' compensation plan.
Scheduling Services. The bill requires hospital-based facilities, when scheduling services for which a facility fee may be charged, to inform the patient that (1) the facility is part of a hospital or health system and the name of the hospital or health system; (2) the facility may charge a facility fee in addition to, and separate from, the provider's professional fee; and (3) the telephone number the patient may call for additional information regarding his or her potential financial liability.
Posting Notice. Under current law, hospital-based facilities must prominently display a written notice in locations that are readily accessible and visible to patients (e.g., patient waiting areas). The notice must inform patients that (1) the facility is part of a hospital or health system and (2) if the facility charges a facility fee, patients may incur a greater financial liability than if the facility was not hospital-based. The bill also requires the notice to include the name of the hospital or health system the facility is part of.
Antitrust Related Case
In a 2002 case, the state Supreme Court held that indirect purchasers could not recover under the existing antitrust statutes. The plaintiff, an end user licensee of a software product purchased at a retail store, had alleged that the product manufacturer had a monopoly on the market and thus violated antitrust laws. The court examined legislative history and guidance from federal law and held that under the existing state antitrust law, only consumers who purchased directly from a company could bring an antitrust case against that company (Vacco v. Microsoft Corporation, 260 Conn. 59 (2002)).
The Connecticut Antitrust Act prohibits a contract or conspiracy in restraint of trade or that seeks to monopolize a market. Among other things, this includes contracts or conspiracies to fix prices, control the production of a good, divide markets, or refuse to deal with third parties (CGS § 35-24 et seq.).
Health Information Blocking
By law, “health information blocking” is defined as knowingly:
1. interfering with, or engaging in business practices or other conduct reasonably likely to interfere with, the ability of patients, providers, or other authorized persons to access, exchange, or use EHRs or
2. using an EHR system to both (a) steer patient referrals to affiliated providers and (b) prevent or unreasonably interfere with referrals to non-affiliated providers.
Health information blocking does not include legitimate referrals between providers participating in an accountable care organization or similar value-based collaborative care model.
Health information blocking is an unfair trade practice (see below). The law specifies that health information blocking by a hospital is subject to a $5,000 penalty for a willful violation as set forth in the unfair practices law (CGS § 19a-904d).
Connecticut Unfair Trade Practices Act (CUTPA)
The law prohibits businesses from engaging in unfair and deceptive acts or practices. CUTPA allows the consumer protection commissioner to issue regulations defining what constitutes an unfair trade practice, investigate complaints, issue cease and desist orders, order restitution in cases involving less than $10,000, enter into consent agreements, ask the attorney general to seek injunctive relief, and accept voluntary statements of compliance. It also allows individuals to sue. Courts may issue restraining orders; award actual and punitive damages, costs, and reasonable attorney's fees; and impose civil penalties of up to $5,000 for willful violations and $25,000 for violation of a restraining order.
Public Health Committee
Joint Favorable Substitute