Gag clauses and retaliation prohibited with respect to prescribing providers
See the bold text below. The bold language identifies text that falls under both the Anti-gag clause and Anti-retaliation tags.
(a) A health insurance policy issued, amended, delivered, or renewed on or after July 1, 2023, that provides prescription drug benefits and maintains one or more drug formularies shall do all of the following:
(1) Upon request of an insured or an insured’s prescribing provider, furnish all of the following information regarding a prescription drug to the insured or the insured’s prescribing health care provider:
(A) The insured’s eligibility for the prescription drug.
(B) The most current formulary or formularies.
(C) Cost-sharing information for the prescription drug and other formulary
alternatives, consistent with cost-sharing requirements as set forth in the policy and accurate at the time it is provided, including any variance in cost sharing based on the patient’s preferred dispensing pharmacy, whether retail or mail order, or the health care provider.
(D) Applicable utilization management requirements for the prescription drug and other formulary alternatives.
(2) Respond in real time to a request made pursuant to paragraph (1) through a standard API.
(3) Allow the use of an interoperability element to provide the information required pursuant to paragraph (1).
(4) Ensure that the information provided pursuant to paragraph (1) is current no later than one business day after a change is made and is provided in real time.
(5) Provide the information pursuant to paragraph (1) if the request is made using the drug’s unique billing code and National Drug Code.
(b) A health insurer shall not do any of the following:
(1) Deny or delay a response to a request for the purpose of blocking the release of information pursuant to subdivision (a).
(2) Restrict, prohibit, or otherwise hinder a prescribing provider from communicating or sharing to an insured any of the following:
(A) The information provided pursuant to subdivision (a).
(B) Additional information on any lower cost or clinically appropriate alternative drugs, whether or not they are covered under the insured’s health insurance policy.
(C) Information about the cash price of the drug.
(3) Except as required by law, interfere with, prevent, or materially discourage access, exchange, or use of the information provided pursuant to subdivision (a). “Interfere with, prevent, or materially discourage access, exchange, or use of the information” includes charging fees for access to the information, not responding to a request at the time made consistent with this section, or instituting insured consent requirements.
(4) Penalize a prescribing provider for disclosing the information provided pursuant to subdivision (a). For purposes of this paragraph, “penalize” includes an action intended to punish a provider for disclosing the information set forth in subdivision (a) or intended to discourage a provider from disclosing this information in the future.
(5) Penalize a prescribing provider for prescribing, administering, or ordering a lower cost or clinically appropriate alternative drug. For purposes of this paragraph, “penalize” includes an action intended to punish a provider who has prescribed, administered, or ordered a lower cost or clinically appropriate alternative drug, or intended to discourage a provider from prescribing, administering, or ordering a lower cost or clinically appropriate alternative drug in the future.
(c) For purposes of this section:
(1) “Cost sharing” includes applicable copayments, coinsurances, or deductibles.
(2) “Cost-sharing information” means the actual out-of-pocket amount an insured would be required to pay a dispensing pharmacy or prescribing provider for a prescription drug under the terms of the insured’s health insurance policy.
(3) “Formulary” has the same meaning as in Section 10123.192.
(4) “Interoperability element” means integrated technologies or services necessary to provide a response to an insured or an insured’s prescribing provider.
(5) “Prescribing provider” is a health care provider authorized to write a prescription to treat a medical condition, including prescriptions to treat mental health and substance use disorders, for an insured.
(6) “Standard API” means an application interface that is standardized for vendors to conform to in order to access the information pursuant to Section 170.215 of Title 45 of the Code of Federal Regulations.
(d) (1) This section does not authorize further disclosure inconsistent with the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Public Law 104-191) and the Confidentiality of Medical Information Act (Part 2.6 (commencing with Section 56) of Division 1 of the Civil Code).
(2) This section does not alter or interfere with requirements that a health insurer cover prescription drugs consistent with this chapter and regulations promulgated thereunder.
(3) This section does not alter or interfere with a health insurer’s other obligations under this article, including requirements to disclose or explain its prescription drug benefit.