Section 78 Pharmacy Assessment
Chapter 118E of the General Laws, as so appearing, is hereby further amended by inserting after section 67A the following section:-
Section 67B. (a) For the purposes of this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:
"Assessment", the per-prescription fee described under subsection (b).
"Pharmacy", a pharmacy that is licensed by the board of registration in pharmacy in accordance with the provisions of chapter 112 or by the department of public health in accordance with the provisions 105 CMR 700.004: Registration Requirements, including, but not limited to, retail pharmacies, hospital pharmacies, compounding pharmacies, specialty pharmacies and pharmacies located at federally-qualified health centers.
"Prescription", a prescription drug dispensed to a patient pursuant to a valid electronic, written, or oral prescription as defined in section 1 of chapter 94C.
"Revenues received by the pharmacy", net patient revenue attributable to the assessed permissible class of health care items or services as defined 42 C.F.R. § 433.68(f)(3)(i)(A).
(b) Each pharmacy shall pay an assessment per prescription dispensed in Massachusetts. The assessment shall not exceed the lesser of: (i) $2 per prescription dispensed in Massachusetts or (ii) an amount equal to 6 per cent of the revenues received by the pharmacy for the applicable period in Massachusetts. A pharmacy's liability for the assessment shall, in the case of a transfer of ownership, be assumed by the successor in interest to the pharmacy.
The assessment shall be implemented as a broad-based health care-related fee as defined in 42 U.S.C. § 1396b(w)(3)(B). The assessment shall be paid to the executive office quarterly. The executive office may promulgate regulations that authorize the assessment of interest on any unpaid liability at a rate not to exceed an annual percentage rate of 18 per cent and late fees at a rate not to exceed 5 per cent per month.
(c) The executive office shall prepare and publicly post a form on which each pharmacy shall report quarterly: (i) its total prescriptions dispensed; (ii) the revenues received by the pharmacy received during reporting period, if the pharmacy calculates the assessment owed as less than $2 per prescription; and (iii) the calculated assessment due. The executive office may require additional reports, including, but not limited to, monthly prescription data and revenue data, as it considers necessary to monitor collections and compliance.
(d) The executive office shall have the authority to inspect and copy the records of a pharmacy to audit its calculation of the assessment and reported revenue. In the event that the executive office determines that a pharmacy has underpaid its assessment amount, the executive office shall notify the pharmacy of the amount due. The executive office may impose per diem penalties if a pharmacy fails to produce documentation as requested by the executive office. If the executive office determines that a pharmacy has overpaid its assessment amount, the executive office shall notify the pharmacy of the amount and may credit the overpayment to the next assessment payment owed or may retain the overpayment to satisfy other amounts owed by the pharmacy to the executive office or the office of Medicaid. Any pharmacy that knowingly submits false or misleading information in any required report shall be subject to a civil penalty of not more than $25,000 for each violation.
(e) If a pharmacy is aggrieved by a decision of the executive office as to the amount due, the pharmacy may file an appeal to the division of administrative law appeals within 60 days of the date of the notice of underpayment or the date the notice was received, whichever is later. The division of administrative law appeals shall conduct each appeal as an adjudicatory proceeding under chapter 30A, and a pharmacy aggrieved by a decision of the division of administrative law appeals shall be entitled to judicial review under section 14 of said chapter 30A.
(f) The executive office may enforce this section by notifying the board of registration in pharmacy of unpaid assessments, and the board shall take prompt steps to revoke the license of, or impose a limitation on operations for, a pharmacy that fails to remit delinquent fees as directed by the executive office. The executive office may also enforce this section by: (i) offsetting payments from the office of Medicaid against the claims for payment by the delinquent pharmacy, against other pharmacies with a common ownership as the delinquent pharmacy or against any successor in interest to those pharmacies, in the amount of the delinquent fees owed, including any interest, penalties or reasonable attorneys' fees; (ii) creating, after demand for payment, a lien in favor of the commonwealth in an amount not to exceed the delinquent fees owed, including any interest, penalties or reasonable attorneys' fees, encumbering the building in which the pharmacy is located, the real property upon pharmacy is located, any fixtures, equipment or goods used in the operation of the facility or any real property in which the pharmacy holds an interest; (iii) requiring pharmacies with a history of late payment or non-compliance to establish an escrow account or provide other security in a form and amount deemed sufficient by the executive office to ensure future compliance; provided, however, that any lien created under this section shall be prior to any mortgage or lien held by any person: (A) with an ownership interest in the pharmacy; (B) who directly or indirectly controls, or has the ability to control to any significant degree, the management or policies of the pharmacy; or (C) who is related to the pharmacy by any significant degree of common ownership or common control; (iv) any other mechanisms set by regulation as described in subsection (g).
(g) The executive office shall promulgate regulations necessary to implement this section.
Summary
This section allows MassHealth to implement an assessment on each outpatient prescription dispensed by a pharmacy.