TITLE X
PUBLIC HEALTH

CHAPTER 126-A
DEPARTMENT OF HEALTH AND HUMAN SERVICES

Section 126-A:3

    126-A:3 General Provisions. –
I. Notwithstanding any provision of law to the contrary, the commissioner is hereby authorized to:
(a) [Repealed.]
(b) Transfer or reassign personnel within and between any division, office, unit, or other component of the department. Upon written notice to the commissioner of administrative services, such changes shall be reflected in the state's payroll and financial systems accounts.
(c) Delegate, transfer or assign the authority to administer and operate any program or service of the department to any employee, division, office, bureau, or other component of the department. Such delegation, transfer or assignment shall include the authority to conduct or perform any act necessary to administer the program or service so assigned.
II. Notwithstanding any provision of law to the contrary, the department shall have no obligation to pay and no cause of action for payment shall be maintained against the department for payment for any product or service, sold, furnished, or leased to the department or any other person on behalf of the department unless an invoice for such product or service has been submitted to the department for payment within 12 months of the date of delivery or provision of the product or service.
II-a. Notwithstanding any provision of law to the contrary, the department shall not require payment and counties shall have no obligation to pay and no cause of action for payment shall be maintained against the counties, for payment for any product or service sold, furnished, or leased to the department or any other person on behalf of the department, unless an invoice for such product or service has been submitted to the counties for payment within 18 months of the date of delivery or provision of the product or service.
III. (a) Notwithstanding any provision of law to the contrary, and notwithstanding any fee, rate, or payment schedule established under the medical assistance program pursuant to RSA 161 and RSA 167 or any other fee, rate, or payment schedule for any other program of the department, no provider shall bill or charge the department more than the provider's usual and customary charge, as defined in this paragraph.
(b) Except as specified in subparagraph III(c), the term "usual and customary" means the lowest charge, fee, or rate charged by a provider for any product or service at the time such product or service was provided. For the purpose of determining the lowest charge, fee, or rate:
(1) If the provider offers discounts or rebates, then the amount after applying discounts or rebates shall be utilized;
(2) If the provider offers a sale for a limited period of time on any good or service, then the sale price shall be utilized during the sale period;
(3) If the provider regularly accepts less than its full charge from any customer, then the amount accepted shall be utilized;
(4) If any good or service is offered free of charge by the provider, then no charge shall be made to the department for the provision of the product or service to the department or a client of the department who satisfies the terms of the offer;
(5) If any good or service is covered under any warranty or guarantee offered by the provider, then the amount charged to the department shall not exceed the amount which would otherwise be payable solely by the customer; and
(6) If a provider structures or packages its goods or services in a manner which is exclusively or primarily used for medicaid, medicare, or other third-party payors, then the charge for the most similar good or service offered to any other consumer shall be utilized.
(c) The following items shall not be utilized in determining the "usual and customary" or lowest charge, fee, or rate:
(1) Discounts offered solely to bona fide employees or family members of employees;
(2) Discounts offered solely on the basis of age shall be utilized in determining the usual and customary charge only when the client of the department satisfies the age requirement;
(3) Free goods or services or discounts provided to a limited number of persons on the basis of financial hardship;
(4) Charges by an organization on a sliding fee scale for a good or service where the organization's charge is based on ability to pay;
(5) Charges not collected as a result of bad debts incurred by the provider. A bad debt exists where sound business judgment indicates that there is no reasonable likelihood of recovery of the amount owed; and
(6) Charges for educational-related services governed by 42 U.S.C. 1396b(c).
(d) The commissioner may waive the application of RSA 126-A:3, III if the commissioner determines such action is necessary to ensure a continuum of care and service to persons served by community mental health centers, to avert serious economic hardships to mental health centers, or to ensure that hospitals may contract for wholesale hospital-to-hospital laboratory and testing services.
(e) When a person is being assisted by a city, town, or county in the purchase of a drug product, pursuant to RSA 165 or RSA 166, no provider of pharmaceutical services shall bill or charge the person, city, town, or county for the drug product at a rate in excess of the rate that would be billed or charged the department of health and human services for that product.
III-a. (a) Pharmacists shall be considered providers under RSA 126-A:3, III for the purpose of billing for providing services performed within the scope of a person's license when said service would have been covered under this section if furnished by a physician or as an incident to a physician's service, or furnished by a physician associate or an advanced registered nurse practitioner.
(b) The commissioner shall submit a Title XIX Medicaid state plan amendment to the federal Centers for Medicare and Medicaid Services to implement this paragraph, if necessary.
IV. If the commissioner determines that the department has been charged more than the usual or customary fee, charge or rate as set forth in this section, the commissioner may levy a penalty against the provider of the good or service in the amount of 10 percent of the overcharge or $100, whichever is greater. Moneys received under this paragraph shall be deposited into the general fund.
V. Pharmacists shall substitute generically equivalent drug products for all legend and non-legend prescriptions paid for by the department of health and human services, unless the prescribing practitioner specifies that the brand name drug product is medically necessary. Such notification shall be in the practitioner's own handwriting or as otherwise authorized by law or regulation and shall be retained by the pharmacy. Pertaining to Medicaid, pharmacists shall dispense brand name drug products to Medicaid beneficiaries when the brand name drug product is listed on the department's Medicaid preferred drug list, and not substitute generically equivalent drugs. The provisions of paragraph III shall not apply to the dispensing by a pharmacy for medical assistance reimbursement for legend and non-legend drugs. The commissioner, in consultation with pharmacy providers, shall establish medical assistance reimbursement for legend and non-legend drugs. For Medicaid fee for service beneficiaries, no prior authorization shall be required for generic drug products unless the drug class is recommended by the drug utilization review board for clinical appropriateness and safety utilization review.
V-a. (a) When deemed medically necessary and cost effective by the department of health and human services' chief medical officer, a standing order may be issued by the chief medical officer for certain Medicaid covered over-the-counter (non-legend) medications, medical supplies, and laboratory tests. Such standing order shall be reviewed annually by the chief medical officer for continuation or discontinuation of the standing order.
(b) The chief medical officer's standing order, as provided in subparagraph (a), shall also permit non-Medicaid recipients to obtain over-the-counter (non-legend) medications, medical supplies, and laboratory tests pursuant to the standing order. Nothing in this paragraph shall prohibit insurers from applying appropriate medical management techniques or require insurers to pay for the cost of these items unless expressly stated by the insurer's terms of coverage.
(c) No health care professional, acting in good faith and with reasonable care, who issues a standing order, or who dispenses, or distributes over-the-counter (non-legend) medications, medical supplies, or laboratory tests by standing order shall be subject to any criminal or civil liability, or any professional disciplinary action, for any action authorized by this paragraph or any outcome resulting from an action authorized by this paragraph.
VI. The department shall provide information to the citizens of New Hampshire, within its existing resources, about the risks and benefits of dental restorative materials including the use of amalgam in children under the age of 6.
VII. Medicaid Hospital Outpatient Services; Designation in Operating Budget.
(a) Notwithstanding any other provision of law to the contrary, beginning with the biennium beginning July 1, 2005 and continuing thereafter, the department shall designate in its operating budget requests specific class lines for hospital outpatient services. The department shall not increase expenditures in approved budgets for such outpatient services without prior approval. If expenditures are projected to exceed the annual appropriation, the department may recommend rate reduction for providers to offset the amount of any such deficit. The department of health and human services shall submit to the legislative fiscal committee and to the finance committees of the house and the senate, the rates that it proposes to pay for hospital outpatient services. The rates shall be subject to the prior approval of the legislative fiscal committee.
(b) For the purpose of Medicaid reimbursement for outpatient hospital services, the only outpatient hospital services for which Medicaid reimbursement shall be provided are those outpatient hospital services which are:
(1) Preventive, diagnostic, therapeutic, rehabilitative, or palliative services that are furnished to outpatients;
(2) Furnished by or under the direction of a physician or dentist;
(3) Furnished in a facility that:
(A) Is licensed or formally approved as a hospital by an officially designated authority for state standard setting; and
(B) Meets the requirements for participation in Medicare as a hospital; CMS-2213-F 62; and
(4) Limited to the scope of facility services that:
(A) Would be included, in the setting delivered, in the Medicare outpatient prospective payment system (OPPS) as defined under 42 C.F.R. section 419.2(b) or are paid by Medicare as an outpatient hospital service under an alternate payment methodology;
(B) Are furnished by an outpatient hospital facility, including an entity that meets the standards for provider based status as a department of a provider set forth in 42 C.F.R. section 413.65; and
(C) Are not covered under the scope of another medical assistance service category under the state plan.
(c) The commissioner may exclude from the definition of outpatient hospital services under subparagraph (b) those types of items and services that are not generally furnished by most hospitals in the state.
VIII. The commissioner shall submit a Title XXI state plan amendment, subject to approval by the fiscal committee of the general court and the oversight committee on health and human services, to administer the children's health insurance program within the department commencing upon implementation of Medicaid managed care. The commissioner shall operate the children's health insurance program utilizing the program model that demonstrates the greatest efficiency and value which includes, but is not limited to, Medicaid expansion, accountable care organization, or risk-based managed care models.
IX. The commissioner shall file a Medicaid state plan amendment on or before January 1, 2026, to institute premiums, as provided in this paragraph, for households with children enrolled in Medicaid with income at or above 255 percent of the federal poverty level, subject to federal limitations. The premium amount shall be based on a portion of the cost of the services and the program, and shall not vary based on the participant's income. The premium shall only apply to Medicaid and shall not apply to waiver services. The department shall develop hardship criteria in administering these premiums.
(a) For the biennium ending June 30, 2027, monthly premium amounts for households with children enrolled in Medicaid with income at or above 255 percent of the federal poverty limit shall be:
(1) Household size of 2: $190 per month.
(2) Household size of 3: $230 per month.
(3) Household size of 4 or more: $270 per month.
(b) Beginning in fiscal year 2028, the commissioner shall adopt rules under RSA 541-A to establish monthly premiums for households with children enrolled in Medicaid in accordance with this paragraph.
X. The department shall seek to implement in the Medicaid care management program and the contractual agreements with each managed care organization an outpatient procedure incentive program for Medicaid beneficiaries to choose, when clinically appropriate, to receive outpatient procedures, including ambulatory surgical care, in a lower cost setting. The outpatient procedure incentive program shall be included by the department in the managed care organization withhold and incentive program and part of each managed care organization's member incentive program, subject to federal limitations. The outpatient procedure incentive program shall be included in the next contract amendment between the department and the managed care organizations after the effective date of this paragraph. Within 120 days of the effective date of this paragraph, the department shall submit the plan for implementation of the outpatient procedure incentive program to the fiscal committee of the general court.

Source. 1995, 310:1, 3, I. 1999, 324:2. 2001, 93:6. 2002, 96:2. 2005, 177:116. 2007, 297:8. 2009, 1:6; 144:25. 2011, 224:26, 43, eff. July 1, 2011. 2015, 213:1, eff. July 6, 2015; 276:207, eff. July 1, 2015. 2021, 189:1, eff. Jan. 1, 2022. 2025, 105:1, eff. June 17, 2025; 141:60, 61, 68, 315, eff. July 1, 2025.