§ 420-J:7-b — Prescription Drugs

New Hampshire § 420-J:7-b

• Jurisdiction: New Hampshire
• Title XXXVII: INSURANCE
• Ch. 420-J: MANAGED CARE LAW

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I. (a) Every health benefit plan that provides prescription drug benefits is required to provide prospective enrollees, and covered persons, a description of the prescription drug benefit plan. Among the specific items that shall be included in the description are:
(1) The procedure a covered person must follow to obtain drugs and medications that are subject to a plan list or plan formulary.
(2) A description of the drug formulary and the plan's exception process.
(3) A description of the extent to which a covered person will be reimbursed for the cost of a drug that is not on a plan list or formulary.
(b) Health carriers shall provide upon request additional information to covered persons related to specific drugs that are not on the formulary.
II. Every health benefit plan that provides prescription drug benefits shall maintain an expeditious exception process, not to exceed 48 hours, by which covered persons may obtain coverage for a medically necessary nonformulary prescription drug or for a nonformulary prescription drug that was available during the previous 12 months. The exception process shall begin when the prescribing provider has submitted a request with a clinical rationale for the exception to the health benefit plan. The exception process shall also begin when a covered person has submitted a non-clinical request for access to a drug approved by the federal Food and Drug Administration for treating a specific condition when such drug was available on the formulary during the previous 12 months. A prescription that requires an exception for coverage shall be considered approved if the exception process exceeds 48 hours.
II-a. No health benefit plan that provides prescription drug benefits and establishes the specific sequence in which prescription drugs for a medical condition are to be prescribed shall require failure on the same medication on more than one occasion for patients continuously enrolled in the plan. Nothing in this section shall be construed to prevent a health care provider from prescribing a medication to the same patient on more than one occasion, when he or she determines it is medically appropriate.
II-b. Every health benefit plan that provides prescription drug benefits and requires prior authorization for covered drugs in the formulary shall respond to a prior authorization request within 2 business days. The prior authorization process shall begin when the prescribing provider has submitted a request with a complete clinical rationale to the health carrier or pharmacy benefits manager. A prescription that requires a prior authorization for coverage shall be considered approved if the prior authorization process exceeds 2 business days.
III. Every health plan that provides prescription drug benefits shall provide written notice in a conspicuous font and size to covered persons affected by deletions to the plan list or plan formulary, provide an explanation of the exception process by which a covered person can access nonformulary medically necessary prescription drugs, and provide a toll-free telephone number through which a covered person can request additional information. For purposes of this paragraph, covered persons affected by deletions to the plan list or plan formulary shall include those covered persons for whom the health plan has provided coverage for the deleted prescription drugs during the 12-month period immediately prior to the deletion. Upon notification to covered persons, the health benefit plan shall allow at least 45 days before implementation of any formulary deletions; provided, however, that advance notice shall not be required if the federal Food and Drug Administration has determined that a prescription drug on the health benefit plan's formulary is unsafe. For purposes of this section, "conspicuous font and size" shall mean a font that is at least 12 point in size and in an easily legible font. If a covered person avails himself or herself of the exception process as outlined in 420-J:7-b, II, the medication shall be covered by the health plan until there is a resolution of the exception process.
IV. Every health benefit plan that provides prescription drug benefits shall maintain, as part of its records, all of the following information, which shall be made available to the commissioner upon request: the complete drug formulary or formularies of the plan, if the plan maintains a formulary, including a list of the prescription drugs on the formulary of the plan by major therapeutic category with an indication of whether any drugs are preferred over the other drugs.
IV-a. Every health benefit plan that provides prescription drug benefits shall provide notice of deletions to the plan list or plan formulary to all covered persons at least annually.
IV-b. Every health benefit plan that provides prescription drug coverage shall also provide notice of additions to the plan list or formulary to all covered persons at least annually. However, the requirements of this paragraph shall not apply to any health benefit plan that adds prescription drugs to its plan list or formulary upon approval by the federal Food and Drug Association.
IV-c. (a) Beginning July 1, 2017, all health insurers, health maintenance organizations, health services corporations, medical services corporations, and preferred provider programs may, when requiring prior authorization for a prescription drug, use and accept the prior authorization paper forms or electronic standard described in this paragraph.
(b) Beginning December 31, 2017, all health insurers, health maintenance organizations, health services corporations, medical services corporations, and preferred provider programs shall, when requiring prior authorization for a prescription drug, use and accept only the prior authorization paper forms or electronic standard described in this paragraph.
(c) On or before March 1, 2017, the commissioner shall adopt rules, pursuant to RSA 541-A, specifying the contents and format of the uniform prior authorization paper forms and the electronic prior authorization standard, consistent with the requirements of this paragraph. In developing the paper forms and the electronic standard, the commissioner shall seek input from interested stakeholders, including, but not limited to, prescribers, pharmacists, carriers, and prescription benefits managers, and shall support adoption of nationally recognized standards for electronic prior authorization of prescription drugs, including those provided by the National Council for Prescription Drug Programs or an equivalent organization as available.
(d) The prior authorization paper forms adopted under this paragraph shall not exceed 2 pages in length.
(e) Nothing in this paragraph shall require a carrier or pharmacy benefits manager to use electronic prior authorization. A carrier or pharmacy benefits manager shall not require use of electronic prior authorization when:
(1) A pharmacist or prescriber lacks broadband Internet access;
(2) A pharmacist or prescriber has low patient volume;
(3) A pharmacist or prescriber has opted-out for a certain medical condition or for a patient request;
(4) A pharmacist or prescriber lacks an electronic medical record system;
(5) The electronic prior authorization interface does not provide for the pre-population of prescriber and patient information; or
(6) The electronic prior authorization interface requires an additional cost to the prescriber.
(f) Nothing in this section shall prohibit the use of prior authorization for prescription drug benefits.
(g) This section shall apply to RSA 420-J and shall not apply to the Medicaid managed care program under RSA 126-A:5, XIX.
V. Every health benefit plan that provides coverage for prescription drugs or devices, or administers such a plan, or which contracts with an entity providing such prescription drug coverage, including but not limited to pharmacy benefit manager companies, shall issue to covered persons a card or other technology containing uniform prescription drug information. The uniform prescription drug information card or technology shall include all of the fields required by the health insurance provider for claims processing in a clear, readable, and understandable manner on the card or other technology issued and shall include, at a minimum, the following information:
(a) The name or trademark logo of the insurer and, if another company administers the prescription benefit, the name or trademark logo of the benefit administrator.
(b) The covered person's name and identification number.
(c) All of the electronic transaction routing information required by the insurer or its benefit administrator in order for the pharmacy to electronically process a prescription claim, including but not limited to the BIN number labeled as such or the Processor Control Number labeled as such, or both.
VI. All subscriber health insurance cards issued after January 1, 2004 shall contain the information required under paragraph V.
VII. A new uniform prescription drug information card, as required under paragraph V, shall be issued by health benefit plan upon enrollment of new members and when reissuing a new card to current members when there is a change in the covered person's pharmacy coverage that affects data contained on the card.
VIII. Every health benefit plan that provides prescription drug benefits shall allow its covered persons to purchase an up-to-90-day supply of covered prescription drugs on the covered person's health benefit plan formulary at one time at a pharmacy of the insured's choice within the insurer's network, provided that the insured can demonstrate that such drug has been taken by the insured for a continuous period of one year and provided that such drug is not subject to the health benefit plan's utilization management, prior authorization, or pre-certification requirements. Controlled substances as identified by the United States Drug Enforcement Administration are exempt from this paragraph. Nothing in this paragraph shall be construed to limit the health benefit plan's ability to establish co-payments, coinsurance deductibles, or other member cost shares. A retail pharmacy dispensing a 90-day supply of covered prescription drugs under this paragraph shall comply with any specified terms, conditions, and reimbursement rate which the health benefit plan may require for mail order pharmacies that fill 90-day prescriptions.
IX. (a) Every health benefit plan that provides prescription drug benefits shall allow its covered persons to obtain an emergency prescription for up to a 72-hour supply of covered prescription drugs on the covered person's health benefit plan formulary or a prescription drug that was deleted from the formulary within the last 90 days in the event a prescription requires prior authorization or an exception by an insurance carrier and the prior authorization or exception has neither been approved nor denied and a pharmacist has determined the medication is essential as provided in RSA 318:47-i. Such reimbursement shall be according to the payment rates of the provider contract. If authorization or exception is subsequently denied, the carrier shall reimburse the pharmacist for the prescription as given based on the pro-rated amount they would have otherwise received under the terms of the provider contract.
(b) The following drugs or classes of drugs, or their medical uses, may be excluded from coverage or otherwise restricted:
(1) Agents when used for anorexia, weight loss, or weight gain.
(2) Agents when used to promote fertility.
(3) Agents when used for cosmetic purposes or hair growth.
(4) Agents when used for the symptomatic relief of cough and colds.
(5) Agents when used to promote smoking cessation.
(6) Prescription vitamins and mineral products, except prenatal vitamins and fluoride preparations.
(7) Nonprescription drugs, except, in the case of pregnant women when recommended by or under the supervision of a physician, agents approved by the Food and Drug Administration under the over-the-counter monograph process for purposes of promoting, and when used to promote, tobacco cessation.
(8) Covered outpatient drugs which the manufacturer seeks to require as a condition of sale that associated tests or monitoring services be purchased exclusively from the manufacturer or its designee.
(9) Barbiturates.
(10) Benzodiazepines.
(11) Agents when used for the treatment of sexual or erectile dysfunction, unless such agents are used to treat a condition, other than sexual or erectile dysfunction, for which the agents have been approved by the Food and Drug Administration.
X. (a) A pharmacy benefits manager or insurer shall require a contracted pharmacy to charge an enrollee or insured person the pharmacy's usual and customary price of filling the prescription or the contracted copayment, whichever is less.
(b) Once it has settled a claim for filling a prescription for an enrollee or insured person and notified the pharmacy of the amount the pharmacy benefits manager or insurer shall pay to the pharmacy for that prescription, the pharmacy benefits manager or insurer shall not lower the amount to be paid to the pharmacy by the pharmacy benefits manager or the insurer for such settled claim; provided, however, that this paragraph shall not apply if the claim was submitted fraudulently or with inaccurate or misrepresented information.
(c) The commissioner shall adopt rules under RSA 541-A to implement this paragraph. Such rules shall include procedures for addressing complaints, provisions for enforcement, and for reporting to the office of professional licensure and certification on the status of complaints referred.
XI. Health carriers shall have access to or maintain within their data systems amounts paid to pharmacies and other health care providers for all prescription drugs on behalf of their covered members. Carriers shall have access to or maintain a record of any amounts due to the pharmacy from the covered member in the form of cost sharing, such as copayments, deductibles, or coinsurance. The health carrier shall be responsible for assuring timely access to this information even when the prescription drug benefit is administered by a pharmacy benefit manager or similar entity.
XII. A health carrier shall not, either directly or indirectly:
(a) Prohibit an in-network retail pharmacy from:
(1) Mailing or delivering a prescription drug to an enrollee as an ancillary service of the in-network retail pharmacy provided that confirmation of delivery is obtained.
(2) Charging a shipping or handling surcharge to an enrollee who requests that the in-network retail pharmacy mail or deliver a prescription drug to the enrollee as an ancillary service provided the enrollee receives a disclosure from the in-network retail pharmacy regarding any surcharge to be charged to the patient for the delivery of a prescription drug, including that the surcharge may not be reimbursable by the plan sponsor or health carrier.
(3) Offering the ancillary services described in subparagraph I(a) to an enrollee.
(b) Charge an enrollee who uses an in-network retail pharmacy that offers to mail or deliver a prescription drug to an enrollee as an ancillary service a surcharge for the delivery of a prescription drug or copayment that is higher than the surcharge or copayment the enrollee would pay if the enrollee used an in-network retail pharmacy that does not offer to mail or deliver a prescription drug to an enrollee as an ancillary service.
(c) For purposes of this section, a retail pharmacy shall not include a "mail-order pharmacy" as defined in RSA 318:1, VII-b.

Legislative History

1999, 286:1. 2003, 286:5. 2004, 187:15-17. 2007, 73:2. 2013, 257:30; 262:1. 2014, 2:1, eff. April 21, 2014; 120:2, eff. Aug. 15, 2014; 311:3, eff. Jan. 1, 2015. 2016, 221:6, eff. June 9, 2016; 228:2, eff. June 9, 2016. 2019, 137:1, eff. Aug. 24, 2019; 180:1, 2, eff. Sept. 8, 2019. 2020, 13:8, eff. Jan. 1, 2021. 2021, 149:2, eff. Sept. 21, 2021. 2024, 327:138, eff. July 1, 2024.