Gov. Lee recently signed pharmacy benefit manager (PBM) reform legislation designed to preserve patient rights, address conflicts of interest and prevent certain pricing practices. The law took effect on July 1, 2021.

Among other items, the law prohibits a PBM or health plan from interfering with a patient’s right to choose a contracted pharmacy, including through inducement, steering, or offering financial or other incentives. Additionally, a patient covered under a group medical or pharmacy benefit contract cannot be required to pay an additional fee, higher copay, higher coinsurance or other penalty for using any contracted pharmacy.

To address pricing concerns, the regulation prevents a PBM from reimbursing a pharmacy for prescription drugs or devices that are below the actual cost to the pharmacy. As explained in our December 22, 2020, Compliance Corner article, the US Supreme Court decision in Rutledge v. PMCA confirmed this type of restriction may be applied to ERISA health benefit plans. The new law also prohibits spread pricing, where a PBM keeps a portion of the amount paid by the health plan for prescription drugs instead of passing the full payment on to the pharmacy. 

Additionally, a PBM must report any entitlement benefit percentage to both the plan and covered patient. Further transparency requirements are scheduled to take effect on January 1, 2022.

Employers that sponsor prescription drug benefit plans should be aware of the new legislation. As applicable, employers should consult with their pharmacy benefit managers and counsel regarding the potential implications and any related plan changes.

HB 1398 »

On March 24, 2020, the Department of Commerce and Insurance issued Bulletin 2020-03 to carriers writing insurance coverage in the state. The bulletin pertains to the maintenance of insurance coverage during the coronavirus (COVID-19) pandemic.

Due to the significant economic disruptions and health concerns resulting from the COVID-19 crisis, state employers and individuals have been substantially impacted. The bulletin urges that flexibility be provided to insureds to enable coverage continuation.

Specifically, the carriers are advised to work with policy holders who have concerns about their ability to timely pay premiums and to explain all options to maintain coverage. These insureds should be made aware of applicable grace periods that may allow for delayed premium payments without loss of coverage. The Bulletin also asks carriers to consider the elimination of late premium payment fees, and to explore ways to streamline administrative procedures to facilitate continuous coverage.

The memo is directed at insurers, but employers should be aware of this communication.

Bulletin 2020-03 »

On March 9, 2020, the Department of Commerce and Insurance issued Bulletin Number 20-02 regarding preparedness measures related to the potential impact of the coronavirus (COVID-19). The bulletin is directed to health carriers writing health insurance or health benefit plan coverage in Tennessee.

The bulletin is issued as part of the state’s response to the spread of the COVID-19 respiratory illness to the United States, including cases in Tennessee. The guidance is intended to assist individuals and entities regulated by the Department in combating the COVID-19 outbreak.

Accordingly, insurers are requested to identify and remove barriers to testing and treatment for COVID-19. The carriers are also requested to review their internal procedures and operations, telehealth delivery of services, network adequacy and out-of-network services to ensure these are capable of handling increased service needs. Additionally, carriers are asked to immediately cover a COVID-19 vaccine at no cost, should one become available.

The bulletin is directed at insurers, but employers should be aware of this development.

Bulletin Number 20-02 »

On August 1, 2019, the Department of Insurance published Bulletin 19-01, which relates to coverage of mental health services for TN-based insurance policies. According to the bulletin, TN law requires all health benefit plans to cover mental health, alcoholism, drug dependency services, and autism spectrum disorders for people under 12 years of age. In addition, TN law also requires coverage of any treatment that is medically necessary and appropriate and is not experimental, such as applied behavioral analysis therapy — such treatment must be covered at parity as outlined by the federal Mental Health Parity and Addiction Equity Act.

The law applies to individual, small group, and large group policies issued in TN, including short-term, limited duration policies, grandfathered plans that include mental health benefits and policies issued to or plans issued by MEWAs.

Bulletin 19-01 »

On April 28, 2017, Gov. Haslam signed HB 18 into law, creating Public Chapter No. 232. This law requires plans providing coverage for prescription eye drops to provide coverage for refills if the participant requests such:

• For a 30-day supply, at least 23 days after the date the participant received the original prescription or the date the participant received the last prescription refill;
• For a 60-day supply, at least 45 days after the date the participant received the original prescription or the date the participant received the last prescription refill; or
• For a 90-day supply, at least 68 days after the date the participant received an original prescription or the date the participant received the last prescription refill.

This law is effective for health benefit plans or policies entered into, issued, or renewed on or after Jan. 1, 2018.

Public Chapter No. 232 »

BlueCross BlueShield of Tennessee recently announced that it will end coverage in the state’s exchange in the Nashville, Memphis and Knoxville regions. The insurer stated that it was a “difficult but necessary decision" to leave the three largest markets in Tennessee following three years of losses. For information on the Tennessee regions in which BlueCross will continue to offer marketplace plans, please see the link below:

Information on BlueCross Marketplace Plans in 2017 »

On Sept. 6, 2016, the Tennessee Department of Insurance released Bulletin 16-03 reaffirming its position that the purpose of Tenn. Code Ann. Section 56-7-2404 is to protect consumer’s access to chiropractic care. The bulletin clarifies that reimbursement, co-payments and deductibles for such services should be in line with those for services related to medical physicians for treatment for the same condition.

Bulletin 16-03 »

On Oct. 22, 2015, the Tennessee Insurance Division released Bulletin No. 15-01 in response to the passage of the PACE Act. In light of the PACE Act’s passage, and since Tennessee law is currently consistent with federal law (as amended), for plan years that begin on or after Jan. 1, 2016, Tennessee defines small employers as those who employed on average 1-50 employees on business days during the preceding calendar year. Large employers will be defined as those who employed an average of at least 51 employees on business days during the preceding calendar year. Tennessee will not be applying the state option to extend the definition of small group to those employing 1-100. However, pursuant to subsequent guidance issued by CMS (see the article in this edition of Compliance Corner), carriers may use a 1-100 definition of small employer for 2015 MLR purposes, but must use 1-50 definition in subsequent years.

It is important to note that the PACE Act deals only with from which market (small or large) an employer must buy its plan. It does not alter in any way the PPACA employer mandate that requires an employer with 50 or more full-time equivalent employees to offer an affordable, minimum value plan or face penalties. That federal requirement? continues.

Bulletin No. 15-01 »

On Sept. 29, 2015, the Tennessee Insurance Division posted a memorandum related to how to determine if an employee is full-time for purposes of the employer mandate, and whether these employees must be offered affordable, minimum value coverage by the employer. The bulletin also addresses compliance with nondiscrimination laws. The bulletin is primarily directed at school districts, but the information is relevant to nearly all employers.

Memo to Tennessee Education Association »

On June 25, 2015, the Insurance Division of the Tennessee Department of Commerce and Insurance published a list of legislation enacted during the 2015 legislative session, including several items which may be of interest to employers sponsoring group health plans:

Public Chapter 157 prohibits health insurance entities from charging a covered person a greater copayment or coinsurance amount for services rendered during an office visit to a physician assistant who is contracted as a primary care practitioner by that health insurer than those charged for such services rendered during an office visit to a physician. More information was provided in the June 16, 2015 edition of Compliance Corner.

Public Chapter 268 provides that a healthcare provider's disclosure of relevant information in response to a court order will be deemed a permissible disclosure, including, but not limited to:

Protected health information

Opinions as to the standard of care of any defendant

Compliance with or breach of the standard, and

Causation of the alleged injury.

The law was effective April 24, 2015.

Public Chapter 346 allows the governing body of a charter school to choose the insurance plans offered to the school's teachers and other full-time permanent employees and removes the requirement that charter school employees participate in the state group insurance plan. The law was effective May 4, 2015.

Summary of 2015 Insurance-related Legislation »
Public Chapter 157 »
Public Chapter 268 »
Public Chapter 346 »

On May 20, 2015, Gov. Haslam signed HB 867 into law, creating Chapter 518. The law prohibits a health insurance issuer that has contracted with a physician's practice to be a part of that health insurance plan's network of providers from directly contacting, or employing an agent to directly contact, a patient of a physician's practice in an effort to change a referral for services to another provider unless certain requirements are met. However, insurers are not prohibited from contacting enrollees in a health plan to inform the patient that a provider is not included in the patient's network and therefore out-of-network costs may be incurred by using that provider. The law is effective for insured group health plans entered into, issued or renewed on or after July 1, 2015.

Chapter 518 »

On April 16, 2015, Gov. Haslam signed SB 54 into law, creating Chapter 157. The law prohibits health insurers from applying higher coinsurance or copayments to primary care services provided by physician assistants during office visits than coinsurance or copayments that apply to such services provided during office visits to physicians. This new law is effective for group health insurance plans entered into on or after July 1, 2015.

Chapter 157 »

On April 10, 2015, Gov. Haslam signed SB 475 into law, creating Public Chapter No. 114. Under the previous law, whether a person is deemed an employee or an independent contractor or some other classification affects the duties and benefits of the employing entity and the person who is employed or whose services are contracted. The enactment of Public Chapter No. 114 changes Tennessee law so that neither a franchisee nor a francishee's employee will be deemed to be an employee of the franchisor for any purpose. This has far-reaching effects for employers who are part of a franchise, especially with respect to employer mandate requirements. Impacted employers should consult with legal counsel to determine the ramifications of this new law. The law is effective immediately.

Public Chapter No. 114 »

On Jan. 16, 2015, the U.S. Supreme Court agreed to decide whether Tennessee must permit same-sex marriage and recognize such marriages lawfully performed out-of-state (Tanco v. Haslam, cert. granted (U.S. Jan. 16, 2015) (No. 14-562)). The Supreme Court will evaluate the following issues for Tennessee and three other states (Kentucky, Michigan, and Ohio):

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

We are expecting further guidance and will report such in future editions of Compliance Corner.

No. 14-562  »