Implications of the Health Insurance Exchange Marketplace and State Law Trends on Commercial Pharmacy

Presenters in this talk focused on how the creation of health insurance exchanges (HIEs) and other federal and state regulations will impact the provision and administration of pharmacy benefits. Laurel Wala and Cami Agena, members of the Phoenix Law Group of Feldman Brown Wala Hall & Agena, both addressed what the new reform requirements will mean, as well as what the consequences of not meeting them might be.

The first question they raised was, are Quality Health Plans (QHPs) commercial plans, or are they federal healthcare programs? According to the presenters, a letter from Kathleen Sebelius, secretary of the US Department of Health and Human Services (HHS), said that the agency does not consider QHPs to fall under the definition of federal healthcare programs. However, with time, HHS has promised a “robust oversight” of Affordable Care Act programs.

Ms Wala and Ms Angea went on to describe how the exchanges will impact legal liability, reporting, and operational, contractual, and financial aspects of pharmacy benefits.

In reporting, for instance, PBMs can receive fines up to $10,000 a day for failing to report timely information, and an additional $100,000 in penalties per any reported item proved to be false. Some of the reportable items include percent of claims dispensed through retail versus mail order, aggregate amount and type of rebates negotiated by a PBM “attributable to plan utilization and the amount passed through to the plan, as well as total number of claims,” and total amount of spread/total number of claims.

In relation to financial concerns, there are many implications to consider. These include the growth of new coverage populations—both previously uninsured and underinsured, the requirement of additional human resources, potential decrease in revenue due to increased transparency (plans, pharmacies, manufacturers), increased audit recoveries, and increased litigation costs.

The presenters also discussed the role of state laws in exchanges. Overall, whether or not rules apply seems to depend on which state the exchange is operating in. The presenters say, “To the extent ACA requirements are not inconsistent with state law, state law requirements still apply to products, plans, and insurers under the Exchange.”