New Hampshire

SUMMARY

Early on, in 2003, New Hampshire created one of the nation’s first all-payer claims databases (“APCD”) to collect and disseminate healthcare price information, and many other states were soon to follow. In 2007, price transparency leader New Hampshire took its APCD one step further and launched NHHealthCost.org, a website that provides the median bundled prices for the thirty most common healthcare services. Continuing the trend, New Hampshire’s legislature remains highly active in considering innovative cost containment solutions and expanding price transparency initiatives.

 

LEGISLATION/REGULATION

Legislative Calendar

New Hampshire’s current regular legislative session runs from 1/3/2018 – 7/1/2018.

 

Recent Legislative Developments

Healthcare Transparency

2018 HB1418 Reporting TRANSPARENCY AND COST CONTROL OF PHARMACEUTICAL DRUG PRICES : This bill requires the commissioner of the department of health and human services, in consultation with the insurance commissioner, to develop a list of certain critical prescription drugs for purposes of cost control and transparency. Under this bill, the commissioner shall make an annual report on prescription drugs and their role in overall health care spending in the New Hampshire. Active – Introduced on 1/3/18 and currently in subcommittee
HB1784 Comparison shopping COMPARISON SHOPPING FOR HEALTH CARE PROCEDURES: This bill establishes procedures for cost comparison for certain health care procedures and requires insurance carriers to establish an incentive program for its enrollees who undergo comparison shopping for such procedures. The Insurance Department states the cost comparison and incentive programs may lead to lower claim costs as insureds are incentivized to select lower cost providers. However, the bill requires out-of-network services to be covered at the in-network cost sharing in certain circumstances. This may impact negotiated costs for certain services which may result in higher claim costs. Any changes in health insurance premiums may impact county and local health insurance expenditures by an indeterminable amount. The Department is required to perform periodic reporting starting on December 1, 2020. Active – Introduced on 1/3/18 and currently in subcommittee
HB1809 Surprise bills BALANCE BILLING UNDER THE MANAGED CARE LAW: This bill prohibits balance billing in the commercial insurance market for certain services provided by out-of-network providers at an in-network facility. The bill further states that fees for such services shall be limited to a commercially reasonable value, based on payments for similar services from NH insurance carriers to NH health care providers. In the event of a dispute between carriers and providers, the bill charges the commissioner of the Insurance Department with determining whether a fee is commercially reasonable. The bill also charges the Insurance Department with granting waivers under certain circumstances, as well as with issuing a report on health insurance premium rates. The Department states that it assumes the bill will have some impact on negotiations between providers and carriers but is unable to determine the extent of this impact on county or local expenditures or how it might affect insurance premium tax collections. Active – Introduced on 12/14/17 and currently in the House.
2017 HB1529 Reporting PRESCRIPTION DRUG REBATE AMOUNTS: This bill requires the insurance commissioner to select 25 prescription drugs and requires insurance carriers and pharmacy benefit managers to annually disclose the amount rebated from drug manufacturers offering rebate programs during the prior year. Under this bill, the commissioner shall analyze the information and include it in the annual report required under RSA 420-G:14-a. Active –Introduced on 11/6/17 and currently in subcommittee


Healthcare Cost

2018 SB481 ESTABLISHING A COMMITTEE TO STUDY THE IMPACT OF PHARMACY BENEFIT MANAGER OPERATIONS ON COST, ADMINISTRATION, AND DISTRIBUTION OF PRESCRIPTION DRUGS: The study committee established in this act will review the PBM system to determine whether changes to New Hampshire’s PBM statutes could assist insurers in lowering related costs. Active – Introduced on 1/3/18 and currently in committee.
SB581 PROHIBITING CERTAIN PRACTICES OF HEALTH CARRIERS AND PHARMACY BENEFIT MANAGERS: This bill prohibits a health carrier or pharmacy benefit manager from requiring accreditation, credentialing, or licensing of a provider by a nongovernmental body, or from preventing a provider from dispensing a new drug product for which the provider meets dispensing guidelines, or from otherwise discriminating against a provider. Active – Introduced on 1/3/18.
HB1741 PAYMENTS FOR COVERED PRESCRIPTION MEDICATIONS UNDER THE MANAGED CARE LAW: After January 1, 2019, no health carrier or pharmacy benefits manager shall require an individual to make a payment at the point of sale for a covered prescription medication in an amount greater than the lesser of:

(1) The applicable copayment for such prescription medication;

(2) The allowable claim amount for the prescription medication; or

(3) The amount an individual would pay for the prescription medication if the individual purchased the prescription medication without using a health benefit plan, or any other source of prescription medication benefits or discounts.

Active – Introduced on 1/3/18 and currently in subcommittee
HB1791 MANAGED CARE LAW; PROVIDER CONTRACT STANDARDS: No contract between an insurance carrier or pharmacy benefit manager and a contracted pharmacy shall contain a provision prohibiting or penalizing, including through increased utilization review, reduced payments or other financial disincentives, a pharmacist’s disclosure to an individual purchasing prescription medication relative to information regarding (1) the cost of the prescription medication to the individual, or (2) the availability of any therapeutically equivalent alternative medications or alternative methods of purchasing the prescription medication, including, but not limited to, paying a cash price, that are less expensive than the cost of the prescription medication to the individual. Active –Passed in House, Awaiting Senate Vote
2017 HB443 PROHIBITING PRESCRIPTION DRUG MANUFACTURERS FROM OFFERING COPAYMENT REIMBURSEMENT:  No prescription drug manufacturer doing business in New Hampshire shall establish a copayment reimbursement program or otherwise offer to pay, waive, or reimburse a patient for his or her insurance copayment. Inactive — Died.
SB156 PHARMACY PRICING: A pharmacy benefits manager or health carrier shall require that a covered person pay the lesser of the amount charged by the pharmacy for filling the prescription, the provider specified contract payment amount, or the covered person’s benefit copayment. Inactive –Died.
SB238 USUAL AND CUSTOMARY PRICE OF PRESCRIPTION FILING: A pharmacy benefits manager or insurer shall require a contracted pharmacy to charge and enrollee or insured person the pharmacy’s usual and customary price of filing the prescription or the contracted copayment, whichever is less. Inactive –Died.

 

Healthcare Markets

2018 SB591 ACCREDITATION OF HEALTH CARE PROVIDERS BY PHARMACY BENEFIT MANAGERS: Pharmacy benefit managers shall not require accreditation of providers other than by the New Hampshire pharmacy board or other state or federal entity. A pharmacy benefit manager may require accreditation as a specialty pharmacy any pharmacy which dispenses 90 or more specialty drug prescriptions per quarter and whose aggregate average wholesale price in any one quarter is comprised of over 50 percent specialty drugs. Active –Introduced on 1/25/18 and currently in committee.
2017 SB354 PHARMACY CLAIM FEES AND COPAYMENTS: This bill prohibits a pharmacy benefits manager or insurer from charging or holding a pharmacy responsible for a fee related to a claim under certain circumstances. This bill also prohibits a pharmacy benefits manager or insurer from charging higher copayments and or inserting gag clauses in contracts. Active –Introduced on 12/12/17 and currently in committee
HB1780 PROHIBITING PRICE GOUGING BY CERTAIN PRESCRIPTION DRUG COMPANIES: This bill would prohibit price gouging of essential off-patent or generic drugs. The Department of Justice would be charged with enforcing the statute. To determine whether a manufacturer or wholesaler engaged in illegal conduct, the Department would need to hire experts with knowledge of the pharmaceutical industry and the pricing of drugs. The experts would assist the Department in analysis of a specific drug’s pricing to determine if the price increase was “excessive and not justified by the cost of producing the drug or the cost of appropriate expansion of access to the drug to promote public health”. Any enforcement actions taken against the company would result in litigation requiring the continued assistance of experts.

The Risk Management Unit within the Department of Administrative Services would be permitted to work with the Attorney General and the State Health Plan’s Pharmacy Benefits Manager (PBM) to determine whether price gouging has occurred. The effort to determine if price gouging has occurred may impact expenditures for PBM administrative charges, refunds to the plan in cases of price gouging and additional costs associated with monitoring reports and calculating payments due from manufacturers.

Active –Introduced on 12/1/17 and currently in subcommittee
2016 HB1664 PROCEDURES FOR CONTRACTS BETWEEN PHARMACY BENEFIT MANAGERS AND CONTRACTED PHARMACIES: The Department of Health and Human Services states this bill establishes requirements for contracts between pharmacy benefit managers (PBM) and contracted pharmacies including sources used by the PBM to calculate drug reimbursement, an appeal process for disputes on drug pricing, and a process for retroactive reimbursement. PBMs that establish maximum allowable costs are required to include in contracts the source for the price, drugs subject to the maximum price, weekly updates on drugs subject to the maximum limits, and a provision to adjust the maximum cost every 14 days. The Department assumes this bill would not apply to fee for service Medicaid prescription drugs since the PBM administering the pharmacy benefit does not contract with pharmacies. In order to participate in the Medicaid program, pharmacies sign a provider agreement with the Department. The agreement does not specify the reimbursement amount, but requires pharmacies accept as payment in full, the amount paid by the Medicaid program. Under Medicaid Care Management the Managed Care Organizations (MCOs) are permitted to contract with subcontractors to administer the benefit. The Department states both of the MCOs have contracted with PBMs and these PBMs contract with individual pharmacies. The Department assumes some of the contract requirements would be administratively burdensome and would result in an increase in the captitated rate paid to the Medicaid MCOs. The Department cannot determine what the impact would be because it is not involved in the contracts between the MCOs and PBMs or the contracts between the PBMs and the pharmacies.

The Department of Administrative Services states this bill would establish and make available an appeals process to pharmacies relative to their contracts with pharmacy benefit managers and the maximum allowable cost of a prescription drug. The Department indicates, although the bill could result in higher prices for prescription drugs, the Department has no way of determining the potential cost to the State’s Health Benefit plan.

Passed.


Key Statutes

We compile state statutes relate to healthcare price and competition, including healthcare transparency, markets, and costs. For a complete listing of all health related statutes visit the State Health Practice Database for Research.

 

ACA Implementation

  • RSA 420-N et seq.: establishes a Joint Health Care Reform Oversight Committee to steward health care reform under the Affordable Care Act.

 

Transparency in Healthcare

  • RSA 420-g:11 creates the state’s Comprehensive Health Care Information System (CHIS) to make health care data “available as a resource for insurers, employers, providers, purchasers of health care, and state agencies to continuously review health care utilization, expenditures, and performance in New Hampshire and to enhance the ability of New Hampshire consumers and employers to make informed and cost-effective health care choices.” New Hampshire has deployed the data online for consumers at http://www.nhhealthcost.org/, an all-payer claims database that disseminates healthcare price information for insured and uninsured patients.

 

  • RSA 420-H et seq. requires that third-party payers provide to beneficiaries an explanation of benefits, limitations, and cost-sharing in simple and concise language. Policy forms shall not be issued in the state that do not meet the required standard of readability.

 

  • RSA 126:25 requires that licensed healthcare facilities provide specified data to the commissioner of health and human services, including financial information, utilization data, demographic information, and charge data.

 

  • RSA 151:31 requires hospitals to make an annual report to the Attorney General for his/her review, including the following information:
    • The hospital’s financial relationship with physician hospital organizations;
    • the number and type of providers employed by the hospital;
    • the frequency of contract negotiations with providers and physician hospital organizations;
    • an organizational chart of the corporate structure of the hospital and any affiliates including a description of the services offered; and
    • a copy of the hospital’s policy concerning the prohibition that no physician employed by the hospital or any affiliate is required or in any way obligated to refer patients to physicians also employed or under contract with the hospital or any affiliate.

 

Network Adequacy

  • RSA 420-J:7 and Ins 2701: a health carrier must maintain a network that is sufficient in numbers, types, and geographic location of providers to ensure that all services to covered persons will be accessible without unreasonable delay, and a carrier must maintain a detailed description of their procedures for monitoring network adequacy at its place of business. The carrier must annually submit a report of their compliance with rules for network adequacy to the commission of insurance. Generally, a carrier must meet the geographic accessibility requirements for 90% of covered persons in a particular geographic area.

 

  • RSA 400-B:3 requires that a health insurer maintain its books, records, and documents in a manner so that the practices of the insurer regarding network adequacy, utilization review, quality assessment and improvement, and provider credentialing may be ascertained during a market conduct examination.

 

Healthcare Contracting

  • RSA 416:4 prohibits most favored nation or equally favored nation provisions in any contract for medical care provider services. A most favored nation clause is a requirement that a provider give the insurer the benefit of any lower fee schedules or charges for services which the provider may subsequently agree to with other persons or entities.

 

Healthcare Markets

  • RSA 400-A establishes the New Hampshire Insurance Department, which was the first insurance regulatory agency in the United States.

 

  • RSA 151-C:1 through C:16 implements New Hampshire’s certificate of need regulatory review, which a provider must obtain prior to constructing or modifying health care facilities, offering new or expanded services, acquiring new medical equipment, or offering new inpatient care beds. A certificate of need ensures there is a genuine need in the community for the expanded capacity or newly offered service.

 

  • RSA 415: 24 requires that rate modifications on health policy forms shall be filed with the commissioner of insurance prior to implementation. For a comprehensive look on rate regulation in New Hampshire, see this 2012 report.

 

  • RSA 417:1 to 31 prohibits unfair and deceptive trade practices in the provision of insurance.

 

FY 2018-2019 BUDGET

New Hampshire enacts budgets on a two-year cycle, beginning July 1 of each odd-numbered year. New Hampshire’s new Biennial Budget will take effect on July 1, 2017 and is valid through June 30, 2019. To view New Hampshire’s 2018-2019 Budget, click here.

 

LITIGATION/ENFORCEMENT

Antitrust (Healthcare Markets)

  • The New Hampshire Attorney General is conducted a review on the proposed affiliation of The Memorial Hospital at North Conway (“Memorial Hospital”) and MaineHealth pursuant to RSA 7:19-b. The Attorney general approved the merger in June 2016. The transaction made MaineHealth the sole corporate member of Memorial Hospital with certain reserved powers over Memorial Hospital’s governance and operations.

 

  • Additional enforcement actions by the Department of Insurance can be found on the Department’s website.

 

KEY RESOURCES

New Hampshire General Court

New Hampshire Department of Justice

New Hampshire Insurance Department

NH HealthCost