Section 26 Pharmacies; assessment for non Medicare and non Medicaid prescriptions dispensed; quarterly reporting; audits; appeal; penalties
Section 26. (a) For the purposes of this section, the following terms shall have the following meanings:
“Assessment”, for all pharmacies, an amount assessed upon each non Medicare and non Medicaid prescription dispensed by the pharmacies.
“Pharmacy”, any retail drug business registered by the board of registration in pharmacy in accordance with chapter 112 that is authorized to dispense controlled substances, including, retail drug businesses as defined in section 1 of chapter 94C.
(b) Each pharmacy shall pay an assessment upon each non-Medicare and nonmedicaid prescription dispensed to the division quarterly. The assessment shall be sufficient in the aggregate to generate $36 million in each fiscal year. 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 division 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. The receipts from the assessment, any federal financial participation received by the commonwealth as a result of expenditures funded by these assessments and interest thereon shall be credited to the Health Care Security Trust Fund established by chapter 29D.
(c) The commissioner shall prepare a form on which each pharmacy shall report quarterly its total prescriptions dispensed and shall calculate the assessment due. The commissioner shall distribute the forms to each pharmacy at least annually. The failure to distribute the form or the failure to receive a copy of the form shall not stay the obligation to pay the assessment by the date specified herein.
(d) The division shall have the authority to inspect and copy the records of a pharmacy for purposes of auditing its calculation of the assessment. In the event that the division determines that a pharmacy has either overpaid or underpaid the assessment, the division shall notify the pharmacy of the amount due or refund the overpayment. The division may impose per diem penalties if a nursing home fails to produce documentation as requested by the division.
(e) In the event that a pharmacy is aggrieved by a decision of the division that an assessment was underpaid by such pharmacy, 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 pursuant to chapter 30A and a pharmacy aggrieved by a decision of the division of administrative law appeals shall be entitled to judicial review pursuant to section 14 of chapter 30A.
(f) The commissioner may enforce the provisions of this section by notifying the department of public health of unpaid assessments. Within 45 days after notice to a pharmacy of amounts due, the department may revoke licensure of a pharmacy that fails to remit delinquent fees.
(g) The division shall quarterly determine the amount of MassHealth services to be funded by the assessment and shall provide written notice of such amount to the comptroller before the first business day of each quarter. The comptroller shall transfer from the Health Care Security Trust Fund, established pursuant to section 1 of chapter 29D, to the Health Care Quality Improvement Trust Fund, on the first business day of each quarter the amount indicated by the division, but in no event shall such transfer exceed $72,000,000 in fiscal year 2003.
(h) The division, in consultation with the division of medical assistance, shall promulgate regulations necessary to implement this section.