Ark. Code Ann. § 17-92-507 (2020)

1. As used in this section:
   1. 1. “Maximum Allowable Cost List” means a listing of drugs or other methodology used by a pharmacy benefits manager, directly or indirectly, setting the maximum allowable payment to a pharmacy or pharmacist for a generic drug, brand-name drug, biologic product, or other prescription drug.
      2. “Maximum Allowable Cost List” includes without limitation:
         1. Average acquisition cost, including national average drug acquisition cost;
         2. Average manufacturer price;
         3. Average wholesale price;
         4. Brand effective rate or generic effective rate;
         5. Discount indexing;
         6. Federal upper limits;
         7. Wholesale acquisition cost; and
         8. Any other term that a pharmacy benefits manager or a healthcare insurer may use to establish reimbursement rates to a pharmacist or pharmacy for pharmacist services;
   2. “Pharmaceutical wholesaler” means a person or entity that sells and distributes prescription pharmaceutical products, including without limitation a full line of brand-name, generic, and over-the-counter pharmaceuticals, and that offers regular and private delivery to a pharmacy;
   3. “Pharmacist” means a licensed pharmacist as defined in § 17-92-101;
   4. “Pharmacist services” means products, goods, and services, or any combination of products, goods, and services, provided as a part of the practice of pharmacy as defined in § 17-92-101;
   5. “Pharmacy” means the same as in § 17-92-101;
   6. “Pharmacy acquisition cost” means the amount that a pharmaceutical wholesaler charges for a pharmaceutical product as listed on the pharmacy's billing invoice;
   7. “Pharmacy benefits manager” means an entity that administers or manages a pharmacy benefits plan or program;
   8. “Pharmacy benefits manager affiliate” means a pharmacy or pharmacist that directly or indirectly, through one (1) or more intermediaries, owns or controls, is owned or controlled by, or is under common ownership or control with a pharmacy benefits manager; and
   9. “Pharmacy benefits plan or program” means a plan or program that pays for, reimburses, covers the cost of, or otherwise provides for pharmacist services to individuals who reside in or are employed in this state.
2. Before a pharmacy benefits manager places or continues a particular drug on a Maximum Allowable Cost List, the drug:
   1. If the drug is a generically equivalent drug as defined in § 17-92-101, shall be listed as therapeutically equivalent and pharmaceutically equivalent “A” or “B” rated in the United States Food and Drug Administration's most recent version of the “Orange Book” or “Green Book” or have an NR or NA rating by Medi-Span, Gold Standard, or a similar rating by a nationally recognized reference;
   2. Shall be available for purchase by each pharmacy in the state from national or regional wholesalers operating in Arkansas; and
   3. Shall not be obsolete.
3. A pharmacy benefits manager shall:
   1. Provide access to its Maximum Allowable Cost List to each pharmacy subject to the Maximum Allowable Cost List;
   2. Update its Maximum Allowable Cost List on a timely basis, but in no event longer than seven (7) calendar days from an increase of ten percent (10%) or more in the pharmacy acquisition cost from sixty percent (60%) or more of the pharmaceutical wholesalers doing business in the state or a change in the methodology on which the Maximum Allowable Cost List is based or in the value of a variable involved in the methodology;
   3. Provide a process for each pharmacy subject to the Maximum Allowable Cost List to receive prompt notification of an update to the Maximum Allowable Cost List; and
   4. 1. 1. Provide a reasonable administrative appeal procedure to allow pharmacies to challenge Maximum Allowable Cost List and reimbursements made under a Maximum Allowable Cost List for a specific drug or drugs as:
            1. Not meeting the requirements of this section; or
            2. Being below the pharmacy acquisition cost.
         2. The reasonable administrative appeal procedure shall include the following:
            1. A dedicated telephone number, email address, and website for the purpose of submitting administrative appeals;
            2. The ability to submit an administrative appeal directly to the pharmacy benefits manager regarding the pharmacy benefits plan or program or through a pharmacy service administrative organization; and
            3. No less than thirty (30) business days to file an administrative appeal.
      2. The pharmacy benefits manager shall respond to the challenge under subdivision (c)(4)(A) of this section within thirty (30) business days after receipt of the challenge.
      3. If a challenge is made under subdivision (c)(4)(A) of this section, the pharmacy benefits manager shall within thirty (30) business days after receipt of the challenge either:
         1. If the appeal is upheld:
            1. Make the change in the maximum allowable cost list payment to at least the pharmacy acquisition cost;
            2. Permit the challenging pharmacy or pharmacist to reverse and rebill the claim in question;
            3. Provide the National Drug Code that the increase or change is based on to the pharmacy or pharmacist; and
            4. Make the change under subdivision (c)(4)(C)(i)(a) of this section effective for each similarly situated pharmacy as defined by the payor subject to the Maximum Allowable Cost List;
         2. If the appeal is denied, provide the challenging pharmacy or pharmacist the National Drug Code and the name of the national or regional pharmaceutical wholesalers operating in Arkansas that have the drug currently in stock at a price below the maximum allowable cost as listed on the Maximum Allowable Cost List; or
         3. If the National Drug Code provided by the pharmacy benefits manager is not available below the pharmacy acquisition cost from the pharmaceutical wholesaler from whom the pharmacy or pharmacist purchases the majority of prescription drugs for resale, then the pharmacy benefits manager shall adjust the maximum allowable cost as listed on the Maximum Allowable Cost List above the challenging pharmacy's pharmacy acquisition cost and permit the pharmacy to reverse and rebill each claim affected by the inability to procure the drug at a cost that is equal to or less than the previously challenged maximum allowable cost.
4. 1. A pharmacy benefits manager shall not reimburse a pharmacy or pharmacist in the state an amount less than the amount that the pharmacy benefits manager reimburses a pharmacy benefits manager affiliate for providing the same pharmacist services.
   2. The amount shall be calculated on a per unit basis based on the same generic product identifier or generic code number.
5. A pharmacy or pharmacist may decline to provide the pharmacist services to a patient or pharmacy benefits manager if, as a result of a Maximum Allowable Cost List, a pharmacy or pharmacist is to be paid less than the pharmacy acquisition cost of the pharmacy providing pharmacist services.
6. 1. This section does not apply to a Maximum Allowable Cost List maintained by the Arkansas Medicaid Program or the Employee Benefits Division.
   2. This section shall apply to the pharmacy benefits manager employed by the Arkansas Medicaid Program or the division if, at any time, the Arkansas Medicaid Program or the division engages the services of a pharmacy benefits manager to maintain a Maximum Allowable Cost List.
7. 1. A violation of this section is a deceptive and unconscionable trade practice under the Deceptive Trade Practices Act, § 4-88-101 et seq., and a prohibited practice under the Arkansas Pharmacy Benefits Manager Licensure Act, § 23-92-501 et seq., and the Trade Practices Act, § 23-66-201 et seq.
   2. This section is not subject to § 4-88-113(f)(1)(B).

History. Acts 2013, No. 1194, § 1; 2015, No. 900, § 1; 2018 (2nd Ex. Sess.), No. 1, § 3; 2018 (2nd Ex. Sess.), No. 3, § 3; 2019, No. 994, §§ 1–5.

Amendments. The 2015 amendment inserted present (a)(2), (a)(6), and (a)(8), and redesignated the remaining subdivisions accordingly; inserted “Gold Standard” in (b)(1); rewrote (c)(2) and (c)(4); added (d) and (e) and redesignated the remaining subsections accordingly; substituted “Arkansas Medicaid Program or the Employee Benefits Division of the Department of Finance and Administration” for “Medicaid Program” in (f)(1); and added (f)(2).

The 2018 (2nd Ex. Sess.) amendment by identical acts Nos. 1 and 3 rewrote (g).

The 2019 amendment added the (a)(1)(A) designation; in (a)(1)(A), inserted “or other methodology”, inserted “directly or indirectly”, substituted “allowable payment” for “allowable cost on which reimbursement”, and substituted “pharmacist for a generic drug, brand-name drug, biologic product, or other prescription drug” for “pharmacist may be based”; added (a)(1)(B); in (a)(4), substituted “and services” for “or services”, inserted “or any combination of products, goods, and services”, and substituted “pharmacy as defined in § 17-92-101” for “pharmacy in Arkansas”; substituted “If the drug is a generically equivalent drug as defined in § 17-92-101, shall be listed” for “Shall be listed” in (b)(1); in the introductory language of (c)(4)(A)(i), substituted the first occurrence of “cost list” for “costs” and inserted “list” following the second occurrence of “cost”; substituted “telephone number, email address, and website” for “telephone number and email address or website” in (c)(4)(A)(ii) (a) ; substituted “thirty (30) business days” for “seven (7) business days” in (c)(4)(A)(ii) (c) , (c)(4)(B), and in the introductory language of (c)(4)(C); added “list payment to at least the pharmacy acquisition cost” in (c)(4)(C)(i) (a) ; made no changes to (e); and made stylistic changes.