On October 26, 2021, Delaware’s new law regulating PBMs took effect. The law, HB219, regulates PBMs in multiple ways, and Insurance Commissioner Trinidad Navarro recently made a statement confirming that the Delaware Department of Insurance will begin the process of building and enforcing regulations as the new law goes into effect. The law is welcome news for independent pharmacies in Delaware.
The statute regulates PBMs in multiple ways: (1) it creates an Any Willing Provider law for preferred networks (in addition to the Any Willing Provider law already in effect) that requires PBMs to permit any pharmacy into a preferred network if it agrees to the same terms and conditions as other pharmacies in the network, (2)it regulates pricing, requiring reimbursement at NADAC (if available) or WAC, (3) it prohibits DIR, GER, and other post-point of sale fees, (4) it provides a MAC appeals process, (5) it prohibits spread pricing, and (6) it requires PBMs to establish networks with sufficient local, non-mail order pharmacies so that residents have a pharmacy within a “reasonable” distance from their homes. The law empowers the Insurance Commissioner to promulgate enforcement regulations. The law applies to contracts entered into or renewed after its enactment.
It is unclear right now whether the Department of Insurance will create a formal complaint system for pharmacies, though the law empowers it to do so. However, under existing Delaware law, pharmacies have the right to bring complaints to the Commissioner and, where the party disagrees with the Commissioner’s decision, or the Commissioner has failed to act, a pharmacy has a right to appeal the decision (or failure to act) directly to the Superior Court. In other words, Delaware pharmacies will have the ability to compel action from the Commissioner if PBMs disregard the law.
Frier Levitt attorneys include experienced litigators who have leveraged state laws like the new Delaware law to make sure pharmacies are paid fairly and have access to important patient networks, and to force PBMs to comply with the law. Call Frier Levitt to speak with an attorney who can help your Delaware pharmacy ensure that its rights under this new law are being protected.
