Yes, the Patient’s Right to Pharmacy Choice Act does not prohibit the practice of providing incentives, such as lower co-pays or cost sharing, to direct consumers to preferred pharmacies over a non-preferred pharmacy.
Title 36 section 6963 (E) of the Oklahoma Statutes states, “[a]n individual’s choice of in-network provider may include a retail pharmacy or a mail-order pharmacy. A health insurer shall not restrict such choice. Such health insurer or PBM shall not require or incentivize using any discounts in cost- sharing or a reduction in copy for the number or copays to individuals to receive prescription drugs from an individual’s choice of in-network pharmacy.” 36 O.S. § 6963 (E).
Per case law, the courts of this state are required to consider all parts of the act together and not an isolated word, phrase, sentence or paragraph and consider such to the exclusion of the remaining parts of the act. Words, phrases and sentences of a statute are to be understood as used, not in any abstract sense, but with regard to the context and that sense which best harmonizes with all other parts of the statute.
The Oklahoma Court of Civil Appeals provided it is fundamental that a section of a statute should not be read in isolation from the context of the whole Act, and that in fulfilling the court’s responsibility in interpreting legislation, the court must not be guided by a single sentence or member of a sentence, but should look to the provisions of the whole law, and to its object and policy. A provision of law must be read in light of the other statutes. Statutory language does not occur in isolation from the rest of the statute in which it appears. Oklahoma courts have rejected requests that it focus only on a “single sentence or member of a sentence” in isolation from the remaining provisions of the statute and the statute’s stated policy.
The first sentence of 36 O.S. § 6963 (E) makes it clear that the overarching intent of the subsection is to address the issue between retail in-network and mail-order pharmacy. The subsection goes on to state that such choice cannot be restricted by the PBM or Insurer. “Such choice” is referring back to retail and mail-order further clarifying the subsection is addressing retail pharmacy compared with mail-order pharmacy. At this point the subsection goes into the prohibition of the use of incentives to individuals to receive prescription drugs from an individual’s choice of in-network pharmacy. As required by the courts we must look at this last sentence in light of at least the whole subsection and not in isolation. As such, “choice of in-network pharmacy” is referring to in-network retail pharmacy and in-network mail-order pharmacy.
In recent complaints provided to OID, an insurer is providing lower co-pays or reduction in cost-sharing for individuals that use a preferred in-network pharmacy verses the nonpreferred in-network pharmacy. 36 O.S. § 6963 (E) does not make a distinction between preferred and nonpreferred and simply addresses in-network retail and mail-order pharmacy providing that cost sharing/copays must be the same between retail and mail-order. Specifically, the subsection does not provide a prohibition against preferred pharmacies offering incentives to reduce the cost paid for prescription drugs. To note, preferred pharmacies are in-network pharmacies, but it is clear the intent of the legislature, with this subsection, is to assure that insurers/PBMs do not steer patients to mail-order pharmacies over retail pharmacies or vice versa. The subsection does not prohibit lower copays at preferred retail pharmacy over nonpreferred in-network retail pharmacies, as stated above the distinction is between retail and mail-order.
The legislature does address preferred pharmacies in the Patient’s Right to Pharmacy Choice Act, 36 O.S. 6958 et seq., in the “any willing provider” section at 36 O.S. § 6962 (B) (4). It states that a PBM shall not deny a pharmacy the opportunity to participate in any pharmacy network at preferred participation status if the pharmacy is willing to accept the terms and conditions that the PBM has established for other pharmacies as a condition of preferred network participation status i.e. nonpreferred in-network pharmacies can receive the same agreement as a preferred participating pharmacy if the nonpreferred agrees to the same terms.
As guided by case law, OID must read 36 O.S. § 6963 (E) considering the other statutes within the Act and in context with the whole Act. Words, phrases and sentences of a statute are to be understood as used and with regard to the context and that sense which best harmonizes with all other parts of the statute. Because the legislature specifically addresses preferred pharmacies in the Act that must be considered when analyzing the subsection at issue. The legislature provided a way to allow all in- network pharmacies to receive the same terms should they so choose. To interpret 36 O.S. § 6963 (E) as prohibiting insurers/PBMs from offering lower cost-sharing/copays to preferred participating pharmacies runs afoul of harmonizing the subsection with 36 O.S. § 6962 (B) (2).