(a) Contract review.

1. (1) Prohibited contract language. No contract entered into by a PBM and a pharmacist or pharmacy that relates to participation or administration of a pharmacy benefits plan or program of a health benefit plan shall contain language in violation of Arkansas Code § 23-92-506(b)(5)(A) (NADAC), § 23-92-506(c) (payment retroactivity), § 23-92-507 (anti-gag clauses), § 4-88-1004 (anti-clawback), and § 17-92-507 (maximum allowable cost).

2. (2) Waiver prohibited.

   1. (A) The provisions in Arkansas Code § 23-92-506(b)(5)(A) (NADAC), § 23-92-506(c) (payment retroactivity), § 23-92-507 (anti-gag clauses), § 4-88-1004 (anti-clawback), and § 17-92-507 (maximum allowable cost) may not be waived by contract.
   2. (B) The provisions in Arkansas Code § 23-92-506(b) (fees and standards) may be modified by contract if the fees or standards are permitted by the Insurance Commissioner under subdivision (a)(3) of this section.

3. (3) Review of contractual language under Arkansas Code § 23-92-506(b)(2) (fees) and § 23-92-506(b)(3) (certification standards).

   1. (A) No contract entered into by a PBM and a pharmacist or pharmacy that relates to participation or administration of a pharmacy benefits plan or program of a health benefit plan shall contain language in violation of Arkansas Code § 23-92-506(b)(2) or (b)(3) unless such provisions have been reviewed and approved by the commissioner pursuant to this section.
   2. (B)

(i) A PBM may submit to the commissioner for review and approval contractual language permitting fees or certification standards, otherwise prohibited under Arkansas Code § 23-92-506(b)(2) and (b)(3), by providing a written justification or explanation to the commissioner for the fee or standard.

1. (ii) For approval of such provisions, it shall be the obligation of the PBM to provide objective evidence, rather than conclusory statements, that the fee or standard is necessary to:

(b) (b) Maintain quality measures of the PBM or health benefit plan.

1. (C)

   1. (i) Upon receipt of the request for approval and written justification, the commissioner shall review such provisions and shall provide the PBM with a written response indicating approval or disapproval of such language, or may request more information, within forty-five (45) days.

      1. (ii) A disapproval shall explain the basis of the disapproval.
      2. (iii) The PBM may supplement its written justification during the period of review by the State Insurance Department.
      3. (iv) If the commissioner disapproves the provision or provisions, the PBM may request a hearing with the commissioner in accordance with Arkansas Code § 23-61-303.
      4. (v) The administrative hearing under this section shall be restricted as to whether the fee or standard meets the requirements of subdivision (a)(3)(B) of this section.

(b) Marketing and advertising.

1. (1) Pursuant to Arkansas Code § 23-92-506(b)(1), a PBM shall not cause or knowingly permit the use of any advertisement, promotion, solicitation, representation, proposal, or offer that is untrue, deceptive, or misleading.
2. (2) The commissioner shall enforce this requirement as he or she similarly enforces the requirements of Arkansas Code § 23-66-206(6) and (7), including applying the applicable penalties, for violations under Arkansas Code § 23-66-210.

3. (3)

   1. (A) The commissioner shall not prereview or preapprove a PBM's marketing documents or advertising statements prior to use by the PBM in this state market.
   2. (B) However, the commissioner shall instead review and enforce this subdivision (b)(3) on a per-complaint basis, and, therefore, it shall be the responsibility of the PBM at all times to ensure that its marketing and advertising is truthful and not misleading.