C.R.S. § 10-16-161: Calculation of contribution to out-of-pocket and cost-sharing requirements - exception - definition - rules.

(1) (a) When calculating a covered person's overall contribution to an out-of-pocket maximum or cost-sharing requirement under the covered person's health benefit plan, a carrier or PBM shall include any amount paid by the covered person or by another person on behalf of the covered person for a prescription drug if:

(I) The prescription drug does not have a generic equivalent or, for a prescription drug that is a biological product, the prescription drug does not have a biosimilar drug, as defined in 42 U.S.C. sec. 262 (i)(2), or an interchangeable biological product, as defined in 42 U.S.C. sec. 262 (i)(3); or

(II) The prescription drug has a generic equivalent, a biosimilar drug, or an interchangeable biological product, and the covered person is using the brand-name prescription drug after:

(A) Obtaining prior authorization from the carrier or pharmacy benefit manager;

(B) Complying with a step-therapy protocol required by the carrier or pharmacy benefit manager; or

(C) Receiving approval from the carrier or pharmacy benefit manager through the carrier's or pharmacy benefit manager's exceptions, appeal, or review process.

(b) A covered person is not required to comply with the utilization management processes described in subsection (1)(a)(II) of this section, including prior authorization and step-therapy protocol requirements, when those processes are prohibited under this article 16 or other applicable state law.

(2) If application of subsection (1) of this section would make a covered person's health savings account contributions ineligible under section 223 of the federal "Internal Revenue Code of 1986", 26 U.S.C. sec. 223, as amended, subsection (1) of this section applies to the deductible applicable to the covered person's health benefit plan after the covered person has satisfied the minimum deductible amount under 26 U.S.C. sec. 223; except that, with respect to items or services that are preventive care pursuant to 26 U.S.C. sec. 223 (c)(2)(C), subsection (1) of this section applies, regardless of whether the minimum deductible under 26 U.S.C. sec. 223 has been satisfied.

(2.5) (a) Beginning January 1, 2028, and except as provided in subsection (2.5)(d) of this section, when calculating a covered person's overall contribution to an out-of-pocket maximum or cost-sharing requirement under the covered person's health benefit plan, a carrier that delivers, issues, renews, amends, or continues coverage for an individual or group health benefit plan in this state shall account for and credit to the covered person's overall contribution to the out-of-pocket maximum or cost-sharing requirement an out-of-pocket expense that the covered person incurs by:

(I) Purchasing a prescription drug; and

(II) Directly paying a pharmacy or direct-to-consumer platform for the prescription drug.

(b) In order to receive credit for an out-of-pocket expense as described in subsection (2.5)(a) of this section, a covered person who purchases a prescription drug in accordance with subsection (2.5)(a) of this section shall provide to the carrier proof of payment for the covered person's purchase of the prescription drug within ninety days after making the purchase. Such proof of purchase may be shown by documentation of the purchase, including by an itemized receipt or a pharmacy record. If the proof of purchase that is submitted to the carrier is insufficient or incomplete, the carrier may request additional information or documentation.

(c) A carrier that accounts for and credits a covered person's out-of-pocket expense in accordance with subsection (2.5)(a) of this section shall apply the credit to the covered person's overall contribution to an out-of-pocket maximum or cost-sharing requirement under the covered person's health benefit plan, which out-of-pocket maximum or cost-sharing requirement is applicable in the plan year in which the out-of-pocket expense was incurred.

(d) A carrier shall not credit a covered person's out-of-pocket expense in accordance with subsection (2.5)(a) of this section:

(I) For an amount of the out-of-pocket expense incurred that is greater than the amount of an out-of-pocket expense that the covered person would have incurred, according to drug cost data available pursuant to section 10-16-122.9 (1)(c), if the covered person had obtained the same prescription drug in the same plan year from an in-network pharmacy and pursuant to the terms of the covered person's health benefit plan. In such circumstances, the carrier shall apply credit for only the amount that is equal to or less than the amount of the out-of-pocket expense that the covered person would have incurred, according to drug cost data available pursuant to section 10-16-122.9 (1)(c), if the covered person had obtained the same prescription drug in the same plan year from an in-network pharmacy and pursuant to the terms of the covered person's health benefit plan.

(II) If the covered person:

(A) Does not provide proof of payment pursuant to subsection (2.5)(b) of this section;

(B) Incurred the out-of-pocket expense by purchasing a prescription drug that is not covered under the formulary of the covered person's health benefit plan, unless the carrier grants an exception; or

(C) Does not comply with the carrier's utilization management processes, including prior authorization and step-therapy protocols required under the covered person's plan.

(3) The commissioner may adopt rules as necessary to implement this section.

(4) As used in this section, "cost-sharing requirement" means any copayment, coinsurance, deductible, or annual limitation on cost sharing, including a limitation subject to 42 U.S.C. sec. 18022 (c) or 42 U.S.C. sec. 300gg-6 (b), required by or on behalf of a covered person in order to receive a prescription drug covered by the covered person's health benefit plan, whether covered as a medical or pharmacy benefit.