PBM: your pharmacy’s middleman and what it may not do

PBM stands for pharmacy benefit manager. It is the entity your health plan hires to run the drug benefit: the formulary, prior authorizations, what the pharmacy is paid and much of what you end up paying. Before 2019 there was no office in Puerto Rico dedicated to regulating them; this law created one within the Department of Health, with a Regulating Commissioner designated by the Secretary, and charged it with regulating everything related to PBMs, PBAs and affiliated entities. For the Government Health Plan there is a parallel route: the law requires ASES to issue and adopt the regulation or administrative order establishing the procedures to handle these matters as to the PBMs it contracts.

Anyone whose pharmacy benefit is administered by a PBM, PBA or affiliated entity, which in practice is nearly everyone with a health plan. The law creates no procedure for the patient to file: it creates prohibitions and a regulator. What you can do as a patient is recognize when one of those prohibitions is being violated and take it to the right place.

• That your pharmacy benefit be administered by a PBM, PBA or affiliated entity subject to this law.Verified against the official source
• For the refill rule: that the drug was duly approved and authorized before, and that it is the same dosage.Verified against the official source

• A record of the drug’s prior approval and its dosage: that is what triggers the prohibition on denying the refill.
• The date and time the approval request was submitted, to measure the 24 or 72 hours.

1. 1

   Step 1: Ask at the pharmacy whether something cheaper exists

   This is the law’s most useful provision for your wallet and the least cited. Article 14, subsection (l), prohibits PBMs, PBAs and affiliated entities from including in their contracts with pharmacies that the pharmacies cannot tell patients whether cheaper drugs or treatments exist. If at the counter you are told they "cannot" tell you because of a contract, that is exactly what the law forbids agreeing to.

2. 2

   Step 2: If it was already approved, the refill is not denied

   Subsection (a) of the same article provides it: once a drug is duly approved and authorized by a PBM, PBA or affiliated entity, refills of that drug or new prescriptions may not be denied, provided it is the same dosage, except where the clinical protocol so indicates. The two conditions are the same dosage and no indication from the clinical protocol.

3. 3

   Step 3: Count the 24 or the 72 hours

   That same subsection (a) closes with the clock: drug approval may not exceed twenty-four (24) hours if urgent or expedited and no more than seventy-two (72) hours in other cases. Note when the request was submitted, because that is what it is measured from.

4. 4

   Step 4: Know that interfering with the prescription is prohibited

   Article 14’s first prohibition is not to interfere with or unilaterally alter patients’ prescriptions of drugs, equipment, clinical tests, therapies, procedures or other services made by health professionals, as established in Chapter 4 on Prescription Drug Management of the Health Insurance Code. And subsection (b) adds a catch-all: a PBM is prohibited from performing any act, action or practice prohibited for an insurer under the Health Insurance Code or under any legislation.

5. 5

   Step 5: Prices must be updated every seven days

   Subsection (h) frames it as a prohibition: it is a prohibited practice to fail to update drug prices every seven (7) days when an increase or decrease occurs, notifying pharmacies and adjusting those prices in their systems. It is a rule aimed at the PBM-pharmacy relationship, but it explains why the counter price sometimes does not match what you expected.

6. 6

   Step 6: Look for the denied-drug reports

   Article 9 requires every PBM, PBA or affiliated entity to submit quarterly reports to the Regulating Commissioner with the total number of payment reimbursements and denied drugs, the justification for each determination and information on all claims under appeal, taking the precautions needed to protect insureds’ identities. And subsection (d) requires the Commissioner to keep on its website all those reports, as well as the names of the PBMs that fail to provide the information within the required term. The law adds that the Commissioner’s delay or inaction in preparing the regulation or the forms does not justify a PBM failing to report.

The forum is the Office of the Regulating Commissioner of Pharmacy Benefit and Service Administrators, attached to the Department of Health. The Secretary of Health supervises its operation and approves the regulations with the criteria and standards governing its functions. If your coverage comes from the Government Health Plan, the law also requires ASES to adopt the regulation establishing the procedures to handle these matters as to the PBMs it contracts. The law provides for administrative review and then judicial review of the Commissioner’s determinations.

• Accepting that the pharmacy "cannot" tell you whether something cheaper exists: the law forbids agreeing to that gag.
• Letting them deny a refill of an already approved drug at the same dosage.
• Not noting when the request was submitted, which is what the 24 or 72 hours are measured from.
• Believing a PBM may unilaterally alter what your physician prescribed.
• Thinking the Commissioner’s fine replaces your claim: the law says it does not limit third-party damage actions.
• Taking the case only to the health plan when the administrator is a PBM subject to this law.
• If you are on the Government Health Plan, forgetting ASES has its own regulatory route for these matters.

These are the government pages this guide is based on.

• Departamento de Salud de Puerto Rico

  Salud

  bvirtualogp.pr.gov

• Department of Health

  Salud

  www.salud.pr.gov