§1865. Appeals

            A. The pharmacy benefit manager shall provide a reasonable administrative appeal procedure to allow pharmacies to challenge maximum allowable costs for a specific NDC or NDCs as not meeting the requirements of this Subpart or being below the cost at which the pharmacy may obtain the NDC. Within fifteen business days after the applicable fill date, a pharmacy may file an appeal by following the appeal process as provided for in this Subpart. The pharmacy benefit manager shall respond to a challenge within fifteen business days after receipt of the challenge.

            B. If an appeal made pursuant to this Section is granted, the pharmacy benefit manager shall take all of the following actions:

            (1) Make the change in the Maximum Allowable Cost List to the initial date of service the appealed drug was dispensed.

            (2) Permit the appealing pharmacy and all other pharmacies in the network that filled prescriptions for patients covered under the same health benefit plan to reverse and resubmit claims and receive payment based on the adjusted maximum allowable cost from the initial date of service the appealed drug was dispensed.

            (3) Make the change effective for each similarly situated pharmacy as defined by the payor subject to the Maximum Allowable Cost List and individually notify all pharmacies in the network of that pharmacy benefit manager of both of the following:

            (a) That a retroactive maximum allowable cost adjustment has been made as a result of a granted appeal effective to the initial date of service the appealed drug was dispensed.

            (b) That the pharmacy may resubmit and receive payment based upon the adjusted maximum allowable cost price.

            (4) Make retroactive price adjustments in the next payment cycle.

            C. If an appeal made pursuant to this Section is denied, the pharmacy benefit manager shall provide the challenging pharmacy or pharmacist the NDC number of a drug product and source where it may be purchased for a price at or below the maximum allowable cost from national or regional wholesalers operating in Louisiana.

            D. A violation of this Subpart shall be deemed an unfair or deceptive act and practice pursuant to R.S. 22:1961 et seq.

            E. For every drug for which the pharmacy benefit manager establishes a maximum allowable cost to determine the drug product reimbursement, the pharmacy benefit manager shall make available to the commissioner, upon request, information that is needed to resolve the complaint. If the commissioner is unable to obtain information from the pharmacy benefit manager that is necessary to resolve the complaint, the reimbursement amount requested in the pharmacist's appeal shall be granted.

            F.(1) A pharmacist or pharmacy may file a complaint with the commissioner following an appeal denied by the pharmacy benefit manager.

            (2) A complaint shall be submitted to the commissioner, on a form and in a manner set forth by the commissioner, no later than fifteen business days from the date of the pharmacy benefit manager's final decision.

            (3) The commissioner may request additional information necessary to investigate a complaint from any party.

            (4) If the complaint investigation determines that the pharmacy benefit manager's final decision was not in compliance with the provisions of this Section, the appealing pharmacy shall be reimbursed the higher of the pharmacy's actual acquisition cost of the drug or the maximum allowable cost price.

            (5) Information specifically designated as proprietary by the pharmacy benefit manager shall be given confidential treatment pursuant to R.S. 22:1656. The commissioner shall determine the appropriateness and validity of the designation.

            G. The commissioner may impose a reasonable fee upon pharmacy benefit managers, in accordance with the Administrative Procedure Act, in addition to a license fee and annual report fee, in order to cover the costs of implementation and enforcement of this Section and R.S. 22:1641 through 1657, 1851 through 1864, and 1961 through 1995, including fees to cover the cost of all of the following:

            (1) Salaries and related benefits paid to the personnel of the department engaged in the investigation and enforcement.

            (2) Reasonable technology costs related to the investigatory and enforcement process. Technology costs shall include the actual cost of software and hardware used in the investigatory and enforcement process and the cost of training personnel in the proper use of the software or hardware.

            (3) Reasonable education and training costs incurred by the state to maintain the proficiency and competence of investigatory and enforcement personnel.

            Acts 2014, No. 391, §1; Acts 2018, No. 597, §1, eff. Jan. 1, 2019.