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New Hampshire Independent Pharmacy Association v. New Hampshire Insurance Department

December 21, 2012

NEW HAMPSHIRE INDEPENDENT PHARMACY ASSOCIATION
v.
NEW HAMPSHIRE INSURANCE DEPARTMENT



The opinion of the court was delivered by: Lynn, J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: November 8, 2012

The petitioner, New Hampshire Independent Pharmacy

Association (NHIPA), appeals an order of the Superior Court (Smukler, J.) granting summary judgment to the respondent, New Hampshire Insurance Department (NHID), and ruling that RSA 415:6-aa (Supp. 2012) and RSA 420- J:7-b, VIII (Supp. 2012) do not require health insurers and health benefit plans to cover 90-day prescriptions filled at retail pharmacies. We affirm.

The following facts are drawn from the record. NHIPA is a trade and advocacy association comprised of twenty-seven independently owned

pharmacies in New Hampshire. NHID is an independent regulatory agency that is charged with enforcing and executing the insurance laws of New Hampshire. RSA 400-A:1 (2006); RSA 400-A:3 (Supp. 2012). RSA 415:6-aa and RSA 420-J:7-b, VIII were enacted by the legislature in 2007. See Laws 2007, 73:1, :2. RSA 415:6-aa provides:

An insurer issuing or renewing accident and health insurance policies shall allow its insureds to purchase an up-to-90-day supply of covered prescription drugs on the covered person's health plan formulary at one time . . . . Nothing in this section shall be construed to limit the health plan's ability to establish copayments, coinsurance deductibles, or other member cost shares. A pharmacy dispensing a 90-day supply of covered prescription drugs under this section shall comply with any specified terms, conditions, and price which the plan may require for pharmacies that fill 90-day prescriptions.

With parallel language, RSA 420-J:7-b, VIII provides:

Every health benefit plan that provides prescription drug benefits shall allow its covered persons to purchase an up-to-90 day supply of covered prescription drugs on the covered person's health benefit plan formulary at one time . . . . Nothing in this paragraph shall be construed to limit the health benefit plan's ability to establish co-payments, coinsurance deductibles, or other member cost shares. A pharmacy dispensing a 90-day supply of covered prescription drugs under this paragraph shall comply with any specified terms, conditions, and price which the health benefit plan may require for pharmacies that fill 90-day prescriptions.

When these statutes first took effect, NHID interpreted them to require health benefit plans and health insurers providing prescription drug benefits to permit their insureds to purchase 90-day supplies of prescription drugs from retail pharmacies, provided that certain conditions were met. Under this construction, health insurers and health benefit plans could not limit coverage of 90-day supplies to those filled through mail-order pharmacies. In 2010, NHID changed its position and began reading these statutes as permitting health insurers and health benefit plans to limit coverage for 90-day prescription quantities to mail-order pharmacies.

In response, NHIPA brought this action for declaratory judgment and a writ of mandamus, asking the trial court to direct NHID to enforce RSA 415:6- aa and RSA 420-J:7-b, VIII in a manner requiring health insurers and health benefit plans to cover 90-day supplies of prescription drugs filled at retail pharmacies. NHID moved for summary judgment and the trial court granted its motion, ruling that RSA 415:6-aa and RSA 420-J:7-b, VIII do not impose such a requirement on health insurers and health benefit plans. This appeal followed.

On appeal, NHIPA contends that the trial court erred in its interpretation of RSA 415:6-aa and RSA 420-J:7-b. NHIPA argues that, because the statutes plainly permit a "pharmacy" to fill 90-day prescriptions, health insurers and health benefit plans are obligated to cover such prescriptions filled at retail pharmacies. Alternatively, NHIPA argues that the statutes are ambiguous and that their legislative history reflects the legislature's intent to secure coverage of 90-day prescriptions filled at retail pharmacies. We address each argument in turn.

In reviewing the trial court's grant of summary judgment, we consider the affidavits, and all inferences properly drawn from them, in the light most favorable to the non-moving party. If there is no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, the grant of summary judgment ...


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