                                 CODE OF VIRGINIA

PHARMACIES; FREEDOM OF CHOICE (§ 38.2-3407.7)

A. Notwithstanding any provision of &#xA7; 38.2-3407 to the contrary, no insurer
or its pharmacy benefits manager, as defined in &#xA7; 38.2-3465, proposing to
issue either preferred provider policies or contracts or exclusive provider
policies or contracts shall prohibit any person receiving pharmacy benefits,
including specialty pharmacy benefits, furnished thereunder from selecting,
without limitation, the pharmacy of his choice to furnish such benefits. This
right of selection extends to and includes any pharmacy that is a nonpreferred
or nonparticipating provider and that has previously notified the insurer on its
own behalf or through an intermediary, by facsimile or otherwise, of its
agreement to accept reimbursement for its services at rates applicable to
pharmacies that are preferred or participating providers, including any
copayment consistently imposed by the insurer, as payment in full. Each insurer
or its pharmacy benefits manager shall permit prompt electronic or telephonic
transmittal of the reimbursement agreement by the pharmacy and ensure prompt
verification to the pharmacy of the terms of reimbursement. In no event shall
any person receiving a covered pharmacy benefit from a nonpreferred or
nonparticipating provider that has submitted a reimbursement agreement be
responsible for amounts that may be charged by the nonpreferred or
nonparticipating provider in excess of the copayment and the insurer&#8217;s
reimbursement applicable to all of its preferred or participating pharmacy
providers. If a pharmacy has provided notice pursuant to this subsection through
an intermediary, the insurer or its intermediary may elect to respond directly
to the pharmacy instead of the intermediary. Nothing in this subsection shall
(i) require an insurer or its intermediary to contract with or to disclose
confidential information to a pharmacy&#8217;s intermediary or (ii) prohibit an
insurer or its intermediary from contracting with or disclosing confidential
information to a pharmacy&#8217;s intermediary.

B. No such insurer or its pharmacy benefits manager shall impose upon any person
receiving pharmaceutical benefits furnished under any such policy or contract:

   1. Any copayment, fee or condition that is not equally imposed upon all
   individuals in the same benefit category, class or copayment level, whether or
   not such benefits are furnished by pharmacists who are nonpreferred or
   nonparticipating providers;

   2. Any monetary penalty that would affect or influence any such person&#8217;s
   choice of pharmacy; or

   3. Any reduction in allowable reimbursement for pharmacy services related to
   utilization of pharmacists who are nonpreferred or nonparticipating providers.

C. For purposes of this section, a prohibited condition or penalty shall
include, without limitation: (i) denying immediate access to electronic claims
filing to a pharmacy that is a nonpreferred or nonparticipating provider and
that has complied with subsection D or (ii) requiring a person receiving
pharmacy benefits to make payment at point of service, except to the extent such
conditions and penalties are similarly imposed on preferred or participating
providers.

D. Any pharmacy that wishes to be covered by this section shall, if requested to
do so in writing by an insurer or its pharmacy benefits manager, within 30 days
of the pharmacy&#8217;s receipt of the request, execute and deliver to the
insurer or its pharmacy benefits manager the direct service agreement or
preferred or participating provider agreement that the insurer requires all of
its preferred or participating providers of pharmacy benefits to execute. Any
pharmacy that fails to timely execute and deliver such agreement shall not be
covered by this section with respect to that insurer or its pharmacy benefits
manager unless and until the pharmacy executes and delivers the agreement. No
pharmacy shall be precluded from obtaining a direct service agreement or
participating provider agreement for retail and specialty pharmacy if the
pharmacy meets the terms and conditions of participation. Any request by a
pharmacy for a direct service agreement or a participating provider agreement
shall be acted upon by an insurer or its pharmacy benefits manager within 60
days of receipt of the pharmacy&#8217;s request or any subsequent submission of
supplemental information if requested by the insurer or its pharmacy benefits
manager.

E. The Commission shall have no jurisdiction to adjudicate controversies arising
out of this section.

F. Nothing in this section shall limit the authority of an insurer proposing to
issue preferred provider policies or contracts or exclusive provider policies or
contracts to select a single mail order pharmacy provider as the exclusive
provider of pharmacy services that are delivered to the covered person&#8217;s
address by mail, common carrier, or delivery service. The provisions of this
section shall not apply to such contracts. As used in this subsection,
&#8220;mail order pharmacy provider&#8221; means a pharmacy permitted to conduct
business in the Commonwealth whose primary business is to dispense a
prescription drug or device under a prescriptive drug order and to deliver the
drug or device to a patient primarily by mail, common carrier, or delivery
service.

HISTORY: 1994, c. 963; 1995, c. 467; 2010, cc. 157, 357; 2017, c. 615; 2019, c.
674; 2021, Sp. Sess. I, c. 229.