2022 Georgia Code
Title 33 - Insurance
Chapter 64 - Regulation and Licensure of Pharmacy Benefits Managers
§ 33-64-11. Prohibited Activities of Pharmacy Benefits Manager

1. A pharmacy benefits manager shall be proscribed from:
   1. Prohibiting a pharmacist, pharmacy, or other dispenser or dispenser practice from providing an insured individual information on the amount of the insured’s cost share for such insured’s prescription drug and the clinical efficacy of a more affordable alternative drug if one is available. No pharmacist, pharmacy, or other dispenser or dispenser practice shall be penalized by a pharmacy benefits manager for disclosing such information to an insured or for selling to an insured a more affordable alternative if one is available;
   2. Prohibiting a pharmacist, pharmacy, or other dispenser or dispenser practice from offering and providing delivery services to an insured as an ancillary service of the pharmacy or dispenser practice;
   3. Charging or collecting from an insured a copayment that exceeds the total submitted charges by the network pharmacy or other dispenser practice for which the pharmacy or dispenser practice is paid;
   4. Charging or holding a pharmacist or pharmacy or dispenser or dispenser practice responsible for a fee or penalty relating to the adjudication of a claim or an audit conducted pursuant to Code Section 26-4-118, provided that this shall not restrict recoupments made in accordance with Code Section 26-4-118;
   5. Recouping funds from a pharmacy in connection with claims for which the pharmacy has already been paid without first complying with the requirements set forth in Code Section 26-4-118, unless such recoupment is otherwise permitted or required by law;
   6. Penalizing or retaliating against a pharmacist or pharmacy for exercising rights under this chapter or Code Section 26-4-118;
   7. Steering. This paragraph shall not be construed to prohibit a pharmacy benefits manager from entering into an agreement with an affiliated pharmacy or an affiliated pharmacy of another pharmacy benefits manager licensed pursuant to this chapter to provide pharmacy care to patients;
   8. Transferring or sharing records relative to prescription information containing patient-identifiable and prescriber-identifiable data to an affiliated pharmacy for any commercial purpose; provided, however, that nothing shall be construed to prohibit the exchange of prescription information between a pharmacy benefits manager and an affiliated pharmacy for the limited purposes of pharmacy reimbursement, formulary compliance, pharmacy care, or utilization review;
   9. Knowingly making a misrepresentation to an insured, pharmacist, pharmacy, dispenser, or dispenser practice;
   10. Taking any action in violation of subparagraphs (a)(21)(D) and (a)(21)(E) of Code Section 26-4-28 or charging a pharmacy a fee in connection with network enrollment;
   11. Withholding coverage or requiring prior authorization for a lower cost therapeutically equivalent drug available to an insured or failing to reduce an insured’s cost share when an insured selects a lower cost therapeutically equivalent drug; and
   12. Removing a drug from a formulary or denying coverage of a drug for the purpose of incentivizing an insured to seek coverage from a different health plan.
2. To the extent that any provision of this Code section is inconsistent or conflicts with applicable federal law, rule, or regulation, such applicable federal law, rule, or regulation shall apply.
3. (For effective date, see note.) This Code section shall not apply to any licensed group model health maintenance organization with an exclusive medical group contract and which operates its own pharmacies which are licensed under Code Section 26-4-110.

History. Code 1981, § 33-64-11 , enacted by Ga. L. 2017, p. 494, § 2/HB 276; Ga. L. 2017, p. 497, § 2/SB 103; Ga. L. 2019, p. 940, § 3/HB 323; Ga. L. 2020, p. 654, § 5/HB 918; Ga. L. 2020, p. 768, § 7/HB 946; Ga. L. 2020, p. 780, § 7/SB 313.

The 2019 amendment, effective January 1, 2020, substituted “pharmacist, pharmacy, or other dispenser or dispenser practice” for “pharmacist or pharmacy” near the beginning of the first sentence in paragraph (a)(1) and in paragraph (a)(2); substituted “No pharmacist, pharmacy, or other dispenser or dispenser practice” for “Neither a pharmacy nor a pharmacist” at the beginning of the second sentence in paragraph (a)(1); added “or dispenser practice” at the end of paragraph (a)(2); in paragraph (a)(3), inserted “or other dispenser practice” in the middle and inserted “or dispenser practice” near the end; in paragraph (a)(4), inserted “or dispenser or dispenser practice” near the beginning, inserted “or penalty” near the middle, and added the language beginning with “or an audit” and ending with “permitted by law” at the end; deleted “and” at the end of paragraph (a)(5); substituted a semicolon for a period at the end of paragraph (a)(6); and added paragraphs (a)(7) through (a)(10). See Editor’s notes for applicability.

The 2020 amendments. —

The first 2020 amendment, effective July 1, 2020, near the end of paragraph (c)(4), inserted “which are” and substituted “Code Section 26-4-110” for “Code Section 26-4-110.1”. The second 2020 amendment, effective January 1, 2021, deleted “store direct” in the middle of paragraph (a)(2), deleted “or pay for performance recoupments otherwise permitted by law” from the end of paragraph (a)(4); rewrote paragraph (a)(7), which read: “Ordering an insured for the filling of a prescription or the provision of pharmacy care services to an affiliated pharmacy; offering or implementing plan designs that require patients to utilize an affiliated pharmacy; or advertising, marketing, or promoting a pharmacy by an affiliate to patients or prospective patients. Subject to the foregoing, a pharmacy benefits manager may include an affiliated pharmacy in communications to patients, including patient and prospective patient specific communications, regarding network pharmacies and prices, provided that the pharmacy benefits manager includes information regarding eligible nonaffiliated pharmacies in such communications and the information provided is accurate. This paragraph shall not be construed to prohibit a pharmacy benefits manager from entering into an agreement with an affiliated pharmacy to provide pharmacy care to patients. The restrictions in this paragraph shall not apply to limited distribution prescription drugs requiring special handling and not commonly carried at retail pharmacies or oncology clinics or practices;”; deleted “and” from the end of paragraph (a)(9); added “or charging a pharmacy a fee in connection with network enrollment” at the end of paragraph (a)(10); added paragraphs (a)(11) and (a)(12); and substituted the present provisions of subsection (c) for the former provisions, which read: “This Code section shall not apply to: (1) A care management organization, as defined in Chapter 21A of this title; (2) The Department of Community Health, as defined in Chapter 2 of Title 31; (3) The State Health Benefit Plan under Article 1 of Chapter 18 of Title 45; or (4) Any licensed group model health maintenance organization with an exclusive medical group contract and which operates its own pharmacies which are licensed under Code Section 26-4-110.” The third 2020 amendment, effective January 1, 2021, made identical changes as the second 2020 amendment. See Editor’s notes for applicability.

Editor’s notes.

Ga. L. 2017, p. 494, § 2/HB 276 and Ga. L. 2017, p. 497, § 2/SB103 both enacted a Code section designated 33-64-11 and containing identical provisions.

Ga. L. 2017, p. 494, § 3/HB 276 and Ga. L. 2017, p. 497, § 3/SB 103, not codified by the General Assembly, provides that this Code section shall apply to all contracts issued, delivered, or issued for delivery in this state on and after July 1, 2017.

Ga. L. 2019, p. 940, § 4/HB 323, not codified by the General Assembly, provides, in part, that this Act shall apply to all contracts issued, delivered, or issued for delivery in this state on and after January 1, 2020.

Ga. L. 2020, p. 768, § 9(b)/HB 946 and Ga. L. 2020, p. 780, § 9(b)/SB 313, not codified by the General Assembly, provide that the amendment to this Code section is applicable to all contracts issued, delivered, or issued for delivery in this state on and after January 1, 2021.