S T A T E   O F   N E W   Y O R K
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                                  4045

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 29, 2009
                               ___________

Introduced  by  M.  of A. CROUCH, KOLB -- Multi-Sponsored by -- M. of A.
  CALHOUN, HAWLEY, TOWNSEND -- read once and referred to  the  Committee
  on Consumer Affairs and Protection

AN  ACT  to  amend  the  education  law,  in relation to authorizing the
  substitution of brand name prescription drugs by a pharmacist

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Paragraph  (a)  of  subdivision  6 of section 6810 of the
education law, as amended by chapter 649 of the laws of 1993, is amended
to read as follows:
  (a) Every prescription written in this state by a person authorized to
issue such prescription shall be on prescription  forms  containing  one
line  for  the  prescriber's signature. The prescriber's signature shall
validate the prescription. Imprinted conspicuously in eight point  upper
case type immediately below the signature line shall be the words: "THIS
PRESCRIPTION WILL BE FILLED GENERICALLY UNLESS PRESCRIBER WRITES 'd a w'
IN THE BOX BELOW". Unless the prescriber writes d a w in such box in the
prescriber's own handwriting, the prescriber's signature shall designate
approval  of  substitution by a pharmacist of a drug product pursuant to
paragraph (o) of subdivision one of  section  two  hundred  six  of  the
public  health law. No other letters or marks in such box shall prohibit
substitution. No prescription forms used or intended to  be  used  by  a
person  authorized to issue a prescription shall have 'd a w' preprinted
in such box. Such box shall be placed directly under the signature  line
and  shall be three-quarters inch in length and one-half inch in height.
Immediately below such box shall be imprinted  in  six  point  type  the
words "Dispense As Written". Notwithstanding any other provision of law,
no  state  official,  agency, board or other entity shall promulgate any
regulation or guideline modifying those  elements  of  the  prescription
form's  contents  specified in this subdivision. To the extent otherwise
permitted by law, a prescriber may modify only  those  elements  of  the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07020-01-9
              

A. 4045                             2

prescription form's contents not specified in this subdivision. Notwith-
standing  any  other  provision of this section or any other law, when a
generic drug is  not  available  and  the  brand  name  drug  originally
prescribed  is available and the pharmacist agrees to dispense the brand
name product for a price that will not exceed the price that would  have
been  charged  for the generic substitute had it been available, substi-
tution of a generic drug product will not be required.  If  the  generic
drug  product  is not available and a medical emergency situation, which
for purposes of this section is defined as any condition requiring alle-
viation of severe pain or which threatens to cause  disability  or  take
life  if  not promptly treated, exists, then the pharmacist may dispense
the brand name product at his regular price.    In  such  instances  the
pharmacist must record the date, hour and nature of the medical emergen-
cy  on  the  back  of  the  prescription  and  keep  a  copy of all such
prescriptions. NOTWITHSTANDING ANY OTHER PROVISION OF THIS  SECTION,  OR
OF  ANY  OTHER LAW, IF A GENERIC DRUG PRODUCT IS AVAILABLE, A PHARMACIST
MAY INFORM THE PATIENT THAT THE BRAND NAME DRUG IS  ALSO  AVAILABLE  AND
THAT  THE  PRICE  OF  SUCH  BRAND NAME DRUG WILL EXCEED THE PRICE OF THE
GENERIC DRUG PRODUCT. UPON THE REQUEST OF THE  PATIENT,  THE  PHARMACIST
MAY  DISPENSE  THE  BRAND  NAME  PRODUCT  AT  THE REGULAR PRICE. IN SUCH
INSTANCES THE PHARMACIST MUST RECORD THE DATE AND HOUR  OF  THE  PATIENT
REQUEST  ON  THE  BACK  OF  THE PRESCRIPTION AND KEEP A COPY OF ALL SUCH
PRESCRIPTIONS.
  S 2. This act shall take effect on the one hundred twentieth day after
it shall have become a law. Effective immediately any rule or regulation
necessary for the timely implementation of this  act  on  its  effective
date may be promulgated on or before such date.