(a) The usual and customary price is the price the provider most frequently charges the general public for the same drug. If the department cannot determine a most frequent price, the median price is used. Items that the provider must consider when determining the usual and customary price include the following:
  (1) The term general public does not include any person whose prescriptions are paid by third-party payors, including health insurers, governmental entities, and the Texas Medical Assistance (Medicaid) Program.
  (2) When a discount is given (including, but not limited to, cash rebate, monetary price discount, coupon of value) or advertised for any segment of the general public, the discount must be included in the usual and customary price determination for Medicaid prescriptions if the Medicaid recipient would otherwise have qualified as a member of that same segment of the general public. Some providers give discounts to non-Medicaid customers based on requirements similar to those specified in subparagraphs (A) and (B) of this paragraph. Providers must not use the following types of requirements as reasons to disqualify Medicaid recipients as members of the same segment of the general public receiving the discount:
    (A) possessing or presenting a special identification card or document, or making a verbal request for a discount;
    (B) paying for the prescription by a particular method.
(b) If a provider utilizes one pricing policy for cash recipient and a different pricing policy for charge recipient, the lower of the two pricing policies is the provider's usual and customary price.
(c) The provider must keep adequate records showing how the usual and customary charge to the general public was determined according to the requirements as stated in this section. On request, the provider must disclose the records to representatives of the following agencies: Texas Department of Health, Texas Attorney General's Medicaid Fraud Control Unit, and United States Department of Health and Human Services. The identification (name and address of non-Medicaid customers) may have been removed from these records. If the provider does not keep the records for the time period specified in his contract with the department, then the usual and customary price determination includes all discounts given or advertised by the provider, regardless of whether the Medicaid recipient would or would not have qualified as a member of the general public receiving the discount.

Source Note: The provisions of this §355.8544 adopted to be effective November 16, 1987, 12 TexReg 3553; transferred effective September 1, 1993, as published in the Texas Register September 7, 1993, 18 TexReg 5978; transferred effective September 1, 1997, as published in the Texas Register December 11, 1998, 23 TexReg 12660