2012-356, New Hampshire Independent Pharmacy Association v. New Hampshire Insurance Department

Molan, Milner & Krupski, PLLC

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

No. 2012-356 Merrimack

Association (NHIPA), appeals an order of the Superior Court (Smukler LYNN, J. The petitioner, New Hampshire Independent Pharmacy to cover 90-day prescriptions filled at retail pharmacies. We affirm. J:7-b, VIII (Supp. 2012) do not require health insurers and health benefit plans Department (NHID), and ruling that RSA 415:6-aa (Supp. 2012) and RSA 420- , attorney general (Laura E. B. Lombardi

reporter@courts.state.nh.us granting summary judgment to the respondent, New Hampshire Insurance

F. Berry, Jr. on the brief, and Mr. Milner orally), for the petitioner.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as pharmacies. NHID moved for summary judgment and the trial court granted

p. 2 benefit plans to cover 90-day supplies of prescription drugs filled at retail

aa and RSA 420-J:7-b, VIII in a manner requiring health insurers and health writ of mandamus, asking the trial court to direct NHID to enforce RSA 415:6- In response, NHIPA brought this action for declaratory judgment and a

prescription quantities to mail-order pharmacies. health insurers and health benefit plans to limit coverage for 90-day NHID changed its position and began reading these statutes as permitting

of 90-day supplies to those filled through mail-order pharmacies. In 2010,

construction, health insurers and health benefit plans could not limit coverage retail pharmacies, provided that certain conditions were met. Under this permit their insureds to purchase 90-day supplies of prescription drugs from

health benefit plans and health insurers providing prescription drug benefits to

When these statutes first took effect, NHID interpreted them to require

may require for pharmacies that fill 90-day prescriptions. specified terms, conditions, and price which the health benefit plan

prescription drugs under this paragraph shall comply with any

cost shares. A pharmacy dispensing a 90-day supply of covered establish co-payments, coinsurance deductibles, or other member shall be construed to limit the health benefit plan’s ability to

benefit plan formulary at one time . . . . Nothing in this paragraph

of covered prescription drugs on the covered person’s health shall allow its covered persons to purchase an up-to-90 day supply Every health benefit plan that provides prescription drug benefits

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

that fill 90-day prescriptions. conditions, and price which the plan may require for pharmacies

A pharmacy dispensing a 90-day supply of covered prescription payments, coinsurance deductibles, or other member cost shares. shall be construed to limit the health plan’s ability to establish co-

health plan formulary at one time . . . . Nothing in this section

supply of covered prescription drugs on the covered person’s policies shall allow its insureds to purchase an up-to-90-day An insurer issuing or renewing accident and health insurance

and RSA 420-J:7-b, VIII were enacted by the legislature in 2007. See Hampshire. RSA 400-A:1 (2006); RSA 400-A:3 (Supp. 2012). RSA 415:6-aa

2007, 73:1, :2. RSA 415:6-aa provides:

that is charged with enforcing and executing the insurance laws of New pharmacies in New Hampshire. NHID is an independent regulatory agency law to the facts de

p. 3 judgment is proper. We review the trial court’s application of the

entitled to judgment as a matter of law, the grant of summary

Phaneuf Funeral Home v. Little Giant Pump Co.

further indications of legislative intent. statute is plain and unambiguous, we do not look beyond it for

is no genuine issue of material fact, and if the moving party is them, in the light most favorable to the non-moving party. If there consider the affidavits, and all inferences properly drawn from

entire statute and statutory scheme. When the language of a

In reviewing the trial court’s grant of summary judgment, we

in turn. the terms and conditions set forth by the insurer or health benefit plan. See of 90-day prescriptions filled at retail pharmacies. We address each argument

read words and phrases not in isolation, but in the context of the

“pharmacy” dispensing a 90-day supply of prescription drugs to comply with that their legislative history reflects the legislature’s intent to secure coverage day supply of prescription drugs. Additionally, the statutes require a benefit plans, respectively, to allow covered persons to purchase an up-to-90 we ascribe the plain and ordinary meaning to the words used. We considered as a whole. When examining the language of a statute, legislature’s intent as expressed in the words of the statute

RSA 415:6-aa; RSA 420-J:7-b, VIII. However, as the trial court aptly observed,

pharmacies. Alternatively, NHIPA argues that the statutes are ambiguous and health benefit plans are obligated to cover such prescriptions filled at retail plain and unambiguous. Both statutes require health insurers and health plainly permit a “pharmacy” to fill 90-day prescriptions, health insurers and We find the language of RSA 415:6-aa and RSA 420-J:7-b, VIII to be In matters of statutory construction, we are the final arbiters of the (citations omitted). issue., 163 N.H. 727, 731 (2012) Resolution of the instant dispute requires us to interpret the statutes at

of RSA 415:6-aa and RSA 420-J:7-b. NHIPA argues that, because the statutes

Bates v. Vt. Mut. Ins. Co., 157 N.H. 391, 394 (2008) (citations omitted).

On appeal, NHIPA contends that the trial court erred in its interpretation

followed.

such a requirement on health insurers and health benefit plans. This appeal its motion, ruling that RSA 415:6-aa and RSA 420-J:7-b, VIII do not impose specifying the manner in which in [sic p. 4 the more general right to obtain a 90-day supply, without

must be provided at a retail pharmacy. Rather, the law establishes

The law does not state that an option to purchase a 90-day supply requiring a covered person to use only mail-order pharmacies]. . . . that this provision does not in fact prohibit [an insurer from

J:7-b] and its application. Based on our review, we now believe

are purchased. . . . Your letter prompted us to review [RSA 420eliminating a consumer’s right to select where maintenance drugs to prohibit insurance carriers from requiring mail order and

The department has applied the language of [RSA 420-J:7-b, VIII]

followed.” In a letter to NHIPA, NHID explained the change as follows: 2010 in response to an inquiry from NHIPA that these laws were not being statutes. Indeed, NHIPA acknowledges that NHID changed its position “in

action against insurers to compel compliance with its then interpretation of the

and the record contains no evidence that NHID ever pursued enforcement of prescription drugs that their insureds purchased from retail pharmacies; insurers were not uniformly following the practice of covering 90-day supplies requirement set forth in [RSA 420-J:7-b].

J:7-b. What does seem clear, however, is that during the 2007-2010 interval, require access to both retail and mail order to satisfy the 90-day fill

statutes’ ambiguity. See interpretations of RSA 415:6-aa and RSA 420-J:7-b, VIII demonstrate the

attendant upon NHID’s pre-2010 interpretation of RSA 415:6-aa and RSA 420obtained. . . . [O]n a going forward basis, the department will not The record before us reveals neither the circumstances nor the formality

to the agency’s present position. NHIPA argues that NHID’s own divergent

statutory provision, we conclude that the statute is ambiguous, and we look to

benefit plans to cover 90-day prescriptions filled at retail pharmacies, contrary 415:6-aa and RSA 420-J:7-b, VIII as requiring health insurers and health places great weight on the fact that, from 2007 to 2010, NHID viewed RSA NHIPA’s fallback position is that the statutes are ambiguous. NHIPA

673, 677 (2011) (“Since there is more than one reasonable interpretation of the the statutes require Union Leader Corp. v. N.H. Retirement Sys., 162 N.H. dispense 90-day prescriptions in the first instance.” In other words, although does not obligate an insurer or health benefit plan to allow a retail pharmacy to

rather than through mail order pharmacies. benefit plans to allow such prescriptions to be filled at local retail pharmacies prescription coverage, they merely permit – but do not require – insurers and

and conditions as set forth by insurers and health benefit plans; the statute “[t]he pharmacy language only places obligations on pharmacies to follow terms p. 5 5

J:7-b, VIII, it is free to amend the statutes as it sees fit. See

the legislature did not intend this interpretation of RSA 41 p. 5 5:6-aa and RSA 420- Based on the foregoing, we affirm the trial court’s decision. Of course, if

State Employees’ Assoc. v. State NHID’s misinterpretation of the statutes cannot alter their plain meaning.

. . . which is clear on its face.”).

HICKS, CONBOY and BASSETT, JJ., concurred.

administrative practice for nine years.

prescription drugs purchased from retail pharmacies. See the statutes impose an obligation on insurers to cover 90-day supplies of (2002) (“We do not consider legislative history to construe a statute statutes’ legislative history. Pennelli v. Town of Pelham, 148 N.H. 36 p. 5 5, 368 (emphasis added)). For this reason, we find it unnecessary to examine the

the statutory section in issue here is not doubtful, and erroneous

162 N.H. at 677 (for a statute to be ambiguous, it must be susceptible to “more

Under these circumstances, we cannot conclude that it is arguable that