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

                                  2335

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 14, 2013
                               ___________

Introduced  by  M.  of  A.  RODRIGUEZ  --  read once and referred to the
  Committee on Health

AN ACT to amend the social services law and the public  health  law,  in
  relation  to prescription drugs in Medicaid managed care programs; and
  to repeal certain provisions of the social services law and chapter 56
  of the laws of 2012 enacting the health and mental hygiene budget  for
  the 2012-2013 state fiscal plan, relating to payments for prescription
  drugs

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

  Section 1. The social services law is amended by adding a new  section
365-i to read as follows:
  S  365-I.  PRESCRIPTION  DRUGS  IN MEDICAID MANAGED CARE PROGRAMS.  1.
DEFINITIONS. AS  USED  IN  THIS  SECTION,  UNLESS  THE  CONTEXT  CLEARLY
REQUIRES OTHERWISE:
  (A)  "ARTICLE" MEANS TITLE ELEVEN OF ARTICLE FIVE OF THIS CHAPTER WITH
RESPECT TO THE MEDICAL ASSISTANCE PROGRAM,  TITLE  ELEVEN-D  OF  ARTICLE
FIVE OF THIS CHAPTER WITH RESPECT TO THE FAMILY HEALTH PLUS PROGRAM, AND
TITLE ONE-A OF ARTICLE TWENTY-FIVE OF THE PUBLIC HEALTH LAW WITH RESPECT
TO THE CHILD HEALTH INSURANCE PROGRAM.
  (B)  "CLINICAL  DRUG  REVIEW  PROGRAM"  MEANS THE CLINICAL DRUG REVIEW
PROGRAM CREATED BY SECTION TWO HUNDRED SEVENTY-FOUR OF THE PUBLIC HEALTH
LAW.
  (C) "EMERGENCY CONDITION" MEANS A MEDICAL OR BEHAVIORAL  CONDITION  AS
DETERMINED  BY  THE  PRESCRIBER  OR  PHARMACIST,  THE  ONSET OF WHICH IS
SUDDEN, THAT  MANIFESTS  ITSELF  BY  SYMPTOMS  OF  SUFFICIENT  SEVERITY,
INCLUDING  SEVERE  PAIN,  AND  FOR  WHICH  DELAY  IN BEGINNING TREATMENT
PRESCRIBED BY THE PATIENT'S HEALTH CARE PRACTITIONER WOULD RESULT IN:
  (I) PLACING THE HEALTH OR SAFETY OF THE  PERSON  AFFLICTED  WITH  SUCH
CONDITION OR OTHER PERSON OR PERSONS IN SERIOUS JEOPARDY;
  (II) SERIOUS IMPAIRMENT TO SUCH PERSON'S BODILY FUNCTIONS;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05620-01-3
              

A. 2335                             2

  (III) SERIOUS DYSFUNCTION OF ANY BODILY ORGAN OR PART OF SUCH PERSON;
  (IV) SERIOUS DISFIGUREMENT OF SUCH PERSON; OR
  (V) SEVERE DISCOMFORT.
  (D)  "MANAGED  CARE  PROVIDER"  MEANS  A  MANAGED  CARE PROVIDER UNDER
SECTION THREE HUNDRED SIXTY-FOUR-J OF THIS TITLE, A  MANAGED  LONG  TERM
CARE  PLAN UNDER SECTION FORTY-FOUR HUNDRED THREE-F OF THE PUBLIC HEALTH
LAW,  A  FAMILY  HEALTH  INSURANCE  PLAN  UNDER  SECTION  THREE  HUNDRED
SIXTY-NINE-EE  OF  THIS  ARTICLE  OR  AN EMPLOYER PARTNERSHIP FOR FAMILY
HEALTH PLUS PLAN UNDER SECTION THREE HUNDRED SIXTY-NINE-FF OF THIS ARTI-
CLE (FAMILY HEALTH PLUS PROGRAM), AN APPROVED ORGANIZATION  UNDER  TITLE
ONE-A  OF  ARTICLE  TWENTY-FIVE  OF  THE PUBLIC HEALTH LAW (CHILD HEALTH
INSURANCE PROGRAM), OR ANY OTHER ENTITY THAT PROVIDES  OR  ARRANGES  FOR
THE  PROVISION  OF  MEDICAL  ASSISTANCE SERVICES AND SUPPLIES TO PARTIC-
IPANTS DIRECTLY OR INDIRECTLY (INCLUDING BY  REFERRAL),  INCLUDING  CASE
MANAGEMENT, INCLUDING THE MANAGED CARE PROVIDER'S AUTHORIZED AGENTS.
  (E) "NON-PREFERRED DRUG" MEANS A PRESCRIPTION DRUG THAT REQUIRES PRIOR
AUTHORIZATION UNDER THE PARTICIPANT'S MANAGED CARE PROVIDER.
  (F)  "PARTICIPANT"  MEANS A MEDICAL ASSISTANCE RECIPIENT WHO RECEIVES,
IS REQUIRED TO RECEIVE OR ELECTS TO RECEIVE HIS OR HER  MEDICAL  ASSIST-
ANCE SERVICES FROM A MANAGED CARE PROVIDER.
  (G)  "PREFERRED DRUG" MEANS A PRESCRIPTION DRUG THAT IS NOT A NON-PRE-
FERRED DRUG UNDER THE PATIENT'S MANAGED CARE PROVIDER.  "PREFERRED  DRUG
LIST" MEANS A LIST OF A MANAGED CARE PROVIDER'S PREFERRED DRUGS.
  (H)  "PREFERRED  DRUG PROGRAM" MEANS THE PREFERRED DRUG PROGRAM ESTAB-
LISHED UNDER SECTION TWO HUNDRED SEVENTY-TWO OF THE PUBLIC HEALTH LAW.
  (I) "PRESCRIPTION DRUG" OR "DRUG" MEANS A DRUG DEFINED IN  SUBDIVISION
SEVEN OF SECTION SIXTY-EIGHT HUNDRED TWO OF THE EDUCATION LAW, FOR WHICH
A  PRESCRIPTION  IS  REQUIRED  UNDER THE FEDERAL FOOD, DRUG AND COSMETIC
ACT. ANY DRUG THAT DOES NOT REQUIRE A PRESCRIPTION UNDER SUCH  ACT,  BUT
WHICH  WOULD  OTHERWISE BE ELIGIBLE FOR REIMBURSEMENT UNDER THIS ARTICLE
WHEN ORDERED BY A PRESCRIBER AND THE  PRESCRIPTION  IS  SUBJECT  TO  THE
APPLICABLE  PROVISIONS  OF THIS ARTICLE AND PARAGRAPH (A) OF SUBDIVISION
FOUR OF SECTION THREE HUNDRED SIXTY-FIVE-A OF THIS TITLE.
  (J) "PRIOR AUTHORIZATION" MEANS A PROCESS REQUIRING THE PRESCRIBER  OR
THE  DISPENSER  TO  VERIFY  WITH THE PARTICIPANT'S MANAGED CARE PROVIDER
THAT THE DRUG IS APPROPRIATE FOR THE NEEDS OF THE SPECIFIC PATIENT.
  (K) "QUALIFIED PRESCRIPTION DRUG SYSTEM" OR "SYSTEM" MEANS  A  PROCESS
UNDER  THIS  SECTION,  APPROVED  BY  THE  COMMISSIONER,  THROUGH WHICH A
MANAGED CARE PROVIDER APPROVES PAYMENT FOR A NON-PREFERRED  DRUG  FOR  A
PARTICIPANT BASED ON PRIOR AUTHORIZATION.
  2.  PAYMENT  FOR  PRESCRIPTION  DRUGS  UNDER  CAPITATION.  PAYMENT FOR
PRESCRIPTION DRUGS SHALL BE INCLUDED  IN  THE  CAPITATION  PAYMENTS  FOR
SERVICES OR SUPPLIES PROVIDED TO A MANAGED CARE PROVIDER'S PARTICIPANTS,
PROVIDED  THAT  THE  MANAGED  CARE  PROVIDER PAYS FOR PRESCRIPTION DRUGS
UNDER A QUALIFIED PRESCRIPTION  DRUG  SYSTEM.  EVERY  PRESCRIPTION  DRUG
ELIGIBLE  FOR REIMBURSEMENT UNDER THIS ARTICLE PRESCRIBED IN RELATION TO
A SERVICE PROVIDED BY THE  MANAGED  CARE  PROVIDER  SHALL  BE  EITHER  A
PREFERRED  OR  NON-PREFERRED  DRUG UNDER THE QUALIFIED PRESCRIPTION DRUG
SYSTEM. IF THE MANAGED CARE PROVIDER DOES NOT PAY FOR PRESCRIPTION DRUGS
UNDER  A  QUALIFIED  PRESCRIPTION  DRUG   SYSTEM,   THEN   PAYMENT   FOR
PRESCRIPTION DRUGS FOR THE MANAGED CARE PROVIDER'S PATIENTS SHALL NOT BE
INCLUDED  IN  SUCH  CAPITATION  PAYMENTS AND PRESCRIPTION DRUGS SHALL BE
PROVIDED  FOR  THE  MANAGED  CARE  PROVIDER'S  PARTICIPANTS  UNDER   THE
PREFERRED  DRUG  PROGRAM.  THE COMMISSIONER SHALL APPROVE A MANAGED CARE
PROVIDER'S QUALIFIED PRESCRIPTION DRUG SYSTEM  IF  IT  CONFORMS  TO  THE
PROVISIONS OF THIS SECTION.

A. 2335                             3

  3.  QUALIFIED  PRESCRIPTION  DRUG  SYSTEM;  CRITERIA.  (A) A QUALIFIED
PRESCRIPTION DRUG SYSTEM SHALL PROMOTE  ACCESS  TO  THE  MOST  EFFECTIVE
PRESCRIPTION  DRUGS  WHILE REDUCING THE COST OF PRESCRIPTION DRUGS UNDER
THIS ARTICLE. THIS SUBDIVISION AND  SUBDIVISION  FOUR  OF  THIS  SECTION
APPLY TO QUALIFIED PRESCRIPTION DRUG SYSTEMS.
  (B)  WHEN  A PRESCRIBER PRESCRIBES A NON-PREFERRED DRUG, REIMBURSEMENT
MAY BE DENIED UNLESS PRIOR AUTHORIZATION IS OBTAINED,  UNLESS  NO  PRIOR
AUTHORIZATION IS REQUIRED UNDER THIS SECTION.
  (C) THE COMMISSIONER SHALL ESTABLISH PERFORMANCE STANDARDS FOR SYSTEMS
THAT,  AT  A  MINIMUM,  ENSURE THAT SYSTEMS PROVIDE SUFFICIENT TECHNICAL
SUPPORT AND TIMELY RESPONSES TO CONSUMERS, PRESCRIBERS AND PHARMACISTS.
  (D) THE COMMISSIONER SHALL ADOPT CRITERIA FOR  QUALIFIED  PRESCRIPTION
DRUG  SYSTEMS  AFTER  CONSIDERING  RECOMMENDATIONS AND COMMENTS RECEIVED
FROM PRESCRIBERS, PHARMACISTS, PARTICIPANTS, AND  ORGANIZATIONS  REPRES-
ENTING THEM.
  (E)  THE  MANAGED  CARE PROVIDER SHALL DEVELOP ITS PREFERRED DRUG LIST
BASED INITIALLY ON AN EVALUATION OF THE CLINICAL EFFECTIVENESS,  SAFETY,
AND  PATIENT  OUTCOMES, FOLLOWED BY CONSIDERATION OF THE COST-EFFECTIVE-
NESS OF THE DRUGS. IN EACH THERAPEUTIC CLASS, THE MANAGED CARE  PROVIDER
SHALL  DETERMINE  WHETHER  THERE  IS ONE DRUG THAT IS SIGNIFICANTLY MORE
CLINICALLY EFFECTIVE AND SAFE, AND THAT DRUG SHALL BE  INCLUDED  ON  THE
PREFERRED DRUG LIST WITHOUT CONSIDERATION OF COST. IF, AMONG TWO OR MORE
DRUGS  IN  A THERAPEUTIC CLASS, THE DIFFERENCE IN CLINICAL EFFECTIVENESS
AND SAFETY IS NOT CLINICALLY SIGNIFICANT,  THEN  COST-EFFECTIVENESS  MAY
ALSO  BE CONSIDERED IN DETERMINING WHICH DRUG OR DRUGS SHALL BE INCLUDED
ON THE PREFERRED DRUG LIST.
  4. PRIOR AUTHORIZATION. (A) A QUALIFIED PRESCRIPTION DRUG SYSTEM SHALL
MAKE AVAILABLE A TWENTY-FOUR HOUR PER DAY, SEVEN DAYS PER WEEK TELEPHONE
CALL CENTER THAT  INCLUDES  A  TOLLFREE  TELEPHONE  LINE  AND  DEDICATED
FACSIMILE  LINE TO RESPOND TO REQUESTS FOR PRIOR AUTHORIZATION. THE CALL
CENTER SHALL INCLUDE QUALIFIED HEALTH CARE PROFESSIONALS  WHO  SHALL  BE
AVAILABLE TO CONSULT WITH PRESCRIBERS CONCERNING PRESCRIPTION DRUGS THAT
ARE  NON-PREFERRED DRUGS. A PRESCRIBER SEEKING PRIOR AUTHORIZATION SHALL
CONSULT WITH THE PROGRAM CALL LINE TO  REASONABLY  PRESENT  HIS  OR  HER
JUSTIFICATION  FOR  THE  PRESCRIPTION  AND  GIVE THE PROGRAM'S QUALIFIED
HEALTH CARE PROFESSIONAL A REASONABLE OPPORTUNITY TO RESPOND.
  (B) WHEN A PATIENT'S HEALTH CARE PROVIDER PRESCRIBES  A  NON-PREFERRED
DRUG,  THE  PRESCRIBER SHALL CONSULT WITH THE PROGRAM TO CONFIRM THAT IN
HIS OR HER REASONABLE  PROFESSIONAL  JUDGMENT,  THE  PATIENT'S  CLINICAL
CONDITION  IS  CONSISTENT WITH THE CRITERIA FOR APPROVAL OF THE NON-PRE-
FERRED DRUG. SUCH CRITERIA SHALL INCLUDE:
  (I) THE PREFERRED DRUG HAS BEEN TRIED BY THE PATIENT AND HAS FAILED TO
PRODUCE THE DESIRED HEALTH OUTCOMES;
  (II) THE PATIENT HAS TRIED THE  PREFERRED  DRUG  AND  HAS  EXPERIENCED
UNACCEPTABLE SIDE EFFECTS;
  (III)  THE  PATIENT  HAS  BEEN  STABILIZED ON A NON-PREFERRED DRUG AND
TRANSITION TO THE PREFERRED DRUG WOULD BE MEDICALLY CONTRAINDICATED; OR
  (IV) OTHER CLINICAL INDICATIONS IDENTIFIED BY THE COMMISSIONER OR  THE
MANAGED  CARE  PROVIDER FOR THE PATIENT'S USE OF THE NON-PREFERRED DRUG,
WHICH SHALL INCLUDE CONSIDERATION OF THE MEDICAL NEEDS OF SPECIAL  POPU-
LATIONS,  INCLUDING  CHILDREN,  ELDERLY,  CHRONICALLY  ILL, PERSONS WITH
MENTAL HEALTH CONDITIONS, AND PERSONS AFFECTED BY HIV/AIDS.
  (C) IN THE EVENT THAT THE PATIENT DOES NOT MEET THE CRITERIA IN  PARA-
GRAPH  (B)  OF  THIS  SUBDIVISION, THE PRESCRIBER MAY PROVIDE ADDITIONAL
INFORMATION TO THE MANAGED  CARE  PROVIDER  TO  JUSTIFY  THE  USE  OF  A
NON-PREFERRED  DRUG.  THE  SYSTEM SHALL PROVIDE A REASONABLE OPPORTUNITY

A. 2335                             4

FOR A PRESCRIBER TO REASONABLY PRESENT HIS OR HER JUSTIFICATION OF PRIOR
AUTHORIZATION. IF, AFTER CONSULTATION WITH THE  MANAGED  CARE  PROVIDER,
THE  PRESCRIBER,  IN HIS OR HER REASONABLE PROFESSIONAL JUDGMENT, DETER-
MINES   THAT   THE  USE  OF  A  NON-PREFERRED  DRUG  IS  WARRANTED,  THE
PRESCRIBER'S DETERMINATION SHALL BE FINAL.
  (D) IF A PRESCRIBER MEETS THE REQUIREMENTS OF PARAGRAPH (B) OR (C)  OF
THIS  SUBDIVISION,  THE  PRESCRIBER SHALL BE GRANTED PRIOR AUTHORIZATION
UNDER THIS SECTION.
  (E) IN THE INSTANCE WHERE A PRIOR AUTHORIZATION DETERMINATION  IS  NOT
COMPLETED  WITHIN  TWENTY-FOUR  HOURS OF THE ORIGINAL REQUEST, SOLELY AS
THE RESULT OF A FAILURE OF THE SYSTEM (WHETHER BY ACTION  OR  INACTION),
PRIOR  AUTHORIZATION SHALL BE IMMEDIATELY AND AUTOMATICALLY GRANTED WITH
NO FURTHER ACTION BY THE PRESCRIBER AND THE PRESCRIBER SHALL BE NOTIFIED
OF THIS DETERMINATION. IN  THE  INSTANCE  WHERE  A  PRIOR  AUTHORIZATION
DETERMINATION  IS NOT COMPLETED WITHIN TWENTY-FOUR HOURS OF THE ORIGINAL
REQUEST FOR ANY OTHER REASON, A SEVENTY-TWO HOUR SUPPLY OF  THE  MEDICA-
TION  SHALL  BE APPROVED BY THE SYSTEM AND THE PRESCRIBER SHALL BE NOTI-
FIED OF THIS DETERMINATION.
  (F) WHEN, IN THE JUDGMENT OF THE  PRESCRIBER  OR  THE  PHARMACIST,  AN
EMERGENCY  CONDITION  EXISTS,  AND THE PRESCRIBER OR PHARMACIST NOTIFIES
THE MANAGED CARE PROVIDER THAT AN EMERGENCY CONDITION EXISTS,  A  SEVEN-
TY-TWO HOUR EMERGENCY SUPPLY OF THE DRUG PRESCRIBED SHALL BE IMMEDIATELY
AUTHORIZED BY THE MANAGED CARE PROVIDER.
  (G)  IN  THE EVENT THAT A PATIENT PRESENTS A PRESCRIPTION TO A PHARMA-
CIST FOR A PRESCRIPTION DRUG THAT IS A NON-PREFERRED DRUG AND FOR  WHICH
THE  PRESCRIBER  HAS  NOT OBTAINED A PRIOR AUTHORIZATION, THE PHARMACIST
SHALL, WITHIN A PROMPT PERIOD BASED ON PROFESSIONAL JUDGMENT, NOTIFY THE
PRESCRIBER. THE PRESCRIBER  SHALL,  WITHIN  A  PROMPT  PERIOD  BASED  ON
PROFESSIONAL  JUDGMENT, EITHER SEEK PRIOR AUTHORIZATION OR SHALL CONTACT
THE PHARMACIST AND AMEND OR  CANCEL  THE  PRESCRIPTION.  THE  PHARMACIST
SHALL, WITHIN A PROMPT PERIOD BASED ON PROFESSIONAL JUDGMENT, NOTIFY THE
PATIENT WHEN PRIOR AUTHORIZATION HAS BEEN OBTAINED OR DENIED OR WHEN THE
PRESCRIPTION HAS BEEN AMENDED OR CANCELLED.
  (H)  ONCE PRIOR AUTHORIZATION OF A PRESCRIPTION FOR A DRUG THAT IS NOT
ON THE PREFERRED DRUG LIST IS OBTAINED, PRIOR AUTHORIZATION SHALL NOT BE
REQUIRED FOR ANY REFILL OF THE PRESCRIPTION.
  (I) NO PRIOR AUTHORIZATION UNDER A QUALIFIED PRESCRIPTION DRUG  SYSTEM
SHALL BE REQUIRED WHEN A PRESCRIBER PRESCRIBES A PREFERRED DRUG.
  (J)  NO PRIOR AUTHORIZATION UNDER A QUALIFIED PRESCRIPTION DRUG SYSTEM
SHALL BE REQUIRED FOR: (I) ATYPICAL ANTI-PSYCHOTICS;  (II)  ANTI-DEPRES-
SANTS;  (III)  ANTI-RETROVIRALS  USED IN THE TREATMENT OF HIV/AIDS; (IV)
ANTI-REJECTION DRUGS USED IN THE TREATMENT OF ORGAN  AND  TISSUE  TRANS-
PLANTS;  AND (V) ANY OTHER THERAPEUTIC CLASS FOR THE TREATMENT OF MENTAL
ILLNESS OR HIV/AIDS, APPROVED BY THE COMMISSIONER.
  5. CLINICAL DRUG REVIEW PROGRAM. IN THE CASE OF A DRUG FOR WHICH PRIOR
AUTHORIZATION IS REQUIRED UNDER THE CLINICAL DRUG REVIEW PROGRAM,  PRIOR
AUTHORIZATION  SHALL  BE OBTAINED UNDER THE CLINICAL DRUG REVIEW PROGRAM
AND NOT UNDER THIS SECTION.
  6. PRESCRIBER CONDUCT. THE MANAGED CARE PROVIDER  AND  THE  DEPARTMENT
SHALL   MONITOR  THE  PRIOR  AUTHORIZATION  PROCESS  UNDER  A  QUALIFIED
PRESCRIPTION DRUG SYSTEM FOR PRESCRIBING PATTERNS WHICH ARE SUSPECTED OF
ENDANGERING THE HEALTH AND SAFETY OF THE PATIENT OR WHICH DEMONSTRATE  A
LIKELIHOOD  OF FRAUD OR ABUSE. THE MANAGED CARE PROVIDER AND THE DEPART-
MENT SHALL TAKE ANY AND ALL ACTIONS OTHERWISE PERMITTED BY LAW TO INVES-
TIGATE SUCH PRESCRIBING PATTERNS, TO TAKE REMEDIAL ACTION AND TO ENFORCE
APPLICABLE FEDERAL AND STATE LAWS.

A. 2335                             5

  7. USE OF PREFERRED DRUG PROGRAM. THE COMMISSIONER MAY CONTRACT WITH A
MANAGED CARE PROVIDER FOR THE PROVIDER TO USE THE PREFERRED DRUG PROGRAM
TO PROVIDE PRIOR AUTHORIZATION UNDER THE MANAGED CARE PROVIDER'S  QUALI-
FIED PRESCRIPTION DRUG SYSTEM. THE CONTRACT SHALL INCLUDE TERMS REQUIRED
BY  THE  COMMISSIONER  TO  MAXIMIZE  SAVINGS TO THE MEDICAID PROGRAM AND
PROTECT THE HEALTH AND INTERESTS OF THE MANAGED CARE PROVIDER'S  PARTIC-
IPANTS.  THE  CONTRACT  SHALL PROVIDE WHETHER THE PREFERRED DRUG PROGRAM
SHALL USE THE MANAGED CARE PROVIDER'S LISTS OF  PREFERRED  AND  NON-PRE-
FERRED  DRUGS  OR  THE  PREFERRED  DRUG  LIST  UNDER  THE PREFERRED DRUG
PROGRAM, WITH RESPECT TO WHETHER PRIOR AUTHORIZATION IS REQUIRED.
  8. A MANAGED CARE PROVIDER FOR WHICH PAYMENT FOR PRESCRIPTION DRUGS IS
INCLUDED IN ITS CAPITATION PAYMENT SHALL PERMIT EACH PARTICIPANT TO FILL
ANY MAIL ORDER COVERED PRESCRIPTION, AT HIS OR HER OPTION, AT  ANY  MAIL
ORDER  PHARMACY  OR  NON-MAIL-ORDER  RETAIL PHARMACY IN THE MANAGED CARE
PROVIDER NETWORK, IF THE NON-MAIL-ORDER RETAIL PHARMACY OFFERS TO ACCEPT
A PRICE THAT IS COMPARABLE TO THAT OF THE  MAIL  ORDER  PHARMACY.  EVERY
NON-MAIL-ORDER  RETAIL  PHARMACY  IN THE MANAGED CARE PROVIDER'S NETWORK
WITH RESPECT TO ANY PRESCRIPTION DRUG SHALL  BE  DEEMED  TO  BE  IN  THE
MANAGED  CARE  PROVIDER'S  NETWORK  FOR EVERY COVERED PRESCRIPTION DRUG;
PROVIDED, HOWEVER, THAT THE MANAGED CARE PROVIDER MAY LIMIT ITS  NETWORK
OF  PHARMACIES  FOR SPECIFIED DRUGS, APPROVED BY THE COMMISSIONER, BASED
ON CLINICAL, PROFESSIONAL OR COST CRITERIA. SUCH LIMITATION SHALL NOT BE
BASED SOLELY ON COST.
  S 2. Section 55 of part D of chapter 56 of the laws of  2012  enacting
the health and mental hygiene budget for the 2012-2013 state fiscal plan
is REPEALED.
  S  3.  Subdivision 2-b of section 369-ee of the social services law is
REPEALED, and a new subdivision 2-b is added to read as follows:
  2-B. PAYMENT FOR PRESCRIPTION DRUGS. PAYMENT  FOR  PRESCRIPTION  DRUGS
SHALL  BE  INCLUDED  IN  THE CAPITATED PAYMENTS FOR SERVICES OR SUPPLIES
PROVIDED UNDER A FAMILY HEALTH INSURANCE PLAN OR PROVIDED BY AN EMPLOYER
PARTNERSHIP FOR FAMILY HEALTH PLUS  PLAN  AUTHORIZED  BY  SECTION  THREE
HUNDRED  SIXTY-NINE-FF  OF  THIS  TITLE, PROVIDED THAT THE PLAN PAYS FOR
PRESCRIPTION DRUGS UNDER A  QUALIFIED  PRESCRIPTION  DRUG  SYSTEM  UNDER
SECTION  THREE  HUNDRED SIXTY-FIVE-I OF THIS ARTICLE. EVERY PRESCRIPTION
DRUG  ELIGIBLE  FOR  REIMBURSEMENT  UNDER  THIS  ARTICLE  PRESCRIBED  IN
RELATION  TO  A SERVICE PROVIDED BY THE PLAN SHALL BE EITHER A PREFERRED
OR NON-PREFERRED DRUG UNDER THE QUALIFIED PRESCRIPTION DRUG  SYSTEM.  IF
THE  PLAN  DOES  NOT  PAY  FOR  PRESCRIPTION  DRUGS  UNDER  A  QUALIFIED
PRESCRIPTION DRUG SYSTEM, THEN PAYMENT FOR PRESCRIPTION  DRUGS  FOR  THE
PLAN'S  PATIENTS  SHALL  NOT BE INCLUDED IN SUCH CAPITATION PAYMENTS AND
PRESCRIPTION DRUGS SHALL BE PROVIDED  FOR  THE  APPROVED  ORGANIZATION'S
PARTICIPANTS UNDER THE PREFERRED DRUG PROGRAM.
  S  4. Section 2511 of the public health law is amended by adding a new
subdivision 21 to read as follows:
  21. PAYMENT FOR PRESCRIPTION DRUGS.  PAYMENT  FOR  PRESCRIPTION  DRUGS
SHALL  BE  INCLUDED IN THE PAYMENTS FOR SERVICES OR SUPPLIES PROVIDED BY
THE APPROVED ORGANIZATION, PROVIDED THAT THE PLAN PAYS FOR  PRESCRIPTION
DRUGS  UNDER  A  QUALIFIED  PRESCRIPTION DRUG SYSTEM UNDER SECTION THREE
HUNDRED SIXTY-FIVE-I OF THE SOCIAL SERVICES LAW. EVERY PRESCRIPTION DRUG
ELIGIBLE FOR REIMBURSEMENT UNDER THIS ARTICLE PRESCRIBED IN RELATION  TO
A  SERVICE  PROVIDED  BY  THE  APPROVED  ORGANIZATION  SHALL BE EITHER A
PREFERRED OR NON-PREFERRED DRUG UNDER THE  QUALIFIED  PRESCRIPTION  DRUG
SYSTEM. IF THE APPROVED ORGANIZATION DOES NOT PAY FOR PRESCRIPTION DRUGS
UNDER   A   QUALIFIED   PRESCRIPTION   DRUG  SYSTEM,  THEN  PAYMENT  FOR
PRESCRIPTION DRUGS FOR THE APPROVED ORGANIZATION'S PATIENTS SHALL NOT BE

A. 2335                             6

INCLUDED IN SUCH PAYMENTS AND PRESCRIPTION DRUGS SHALL BE  PROVIDED  FOR
THE  APPROVED  ORGANIZATION'S  PARTICIPANTS  UNDER  THE  PREFERRED  DRUG
PROGRAM.
  S  5.  Subdivision  11  of  section  270  of the public health law, as
amended by section 2-a of part C of chapter 58 of the laws of  2008,  is
amended to read as follows:
  11.  "State  public  health plan" means the medical assistance program
established by title eleven of article five of the social  services  law
(referred  to in this article as "Medicaid"), the elderly pharmaceutical
insurance coverage program established by title three of article two  of
the  elder law (referred to in this article as "EPIC"), [and] the family
health plus program established by section three  hundred  sixty-nine-ee
of the social services law [to the extent that section provides that the
program  shall  be subject to this article], AND THE CHILD HEALTH INSUR-
ANCE PROGRAM UNDER TITLE ONE-A OF  ARTICLE  TWENTY-FIVE  OF  THE  PUBLIC
HEALTH LAW.
  S  6.  Section 272 of the public health law is amended by adding a new
subdivision 12 to read as follows:
  12. NO PRIOR AUTHORIZATION SHALL BE REQUIRED UNDER THE PREFERRED  DRUG
PROGRAM FOR:
  (A)  ATYPICAL ANTI-PSYCHOTICS; (B) ANTI-DEPRESSANTS; (C) ANTI-RETROVI-
RALS USED IN THE TREATMENT OF HIV/AIDS; (D) ANTI-REJECTION DRUGS USED IN
THE TREATMENT OF ORGAN AND TISSUE TRANSPLANTS; AND (E) ANY OTHER  THERA-
PEUTIC  CLASS  FOR  THE  TREATMENT OF MENTAL ILLNESS OR HIV/AIDS, RECOM-
MENDED BY THE COMMITTEE AND APPROVED  BY  THE  COMMISSIONER  UNDER  THIS
SECTION.
  S 7. This act shall take effect on the one hundred eightieth day after
it  shall  become  a  law;  provided,  however, that the commissioner of
health is immediately authorized and directed to take actions  necessary
to implement this act when it takes effect.

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

                                 2335--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 14, 2013
                               ___________

Introduced  by  M.  of A. RODRIGUEZ, ABINANTI, GUNTHER, BRONSON, RIVERA,
  CYMBROWITZ, BROOK-KRASNY, GOTTFRIED, JACOBS, MAISEL, SCHIMEL, BOYLAND,
  ARROYO, JAFFEE, PERRY, SCARBOROUGH, WEPRIN, DINOWITZ, CAMARA, GOLDFED-
  ER, GIBSON, ROSENTHAL, COLTON, HOOPER, ZEBROWSKI, SIMANOWITZ,  MAGNAR-
  ELLI,  BENEDETTO,  ABBATE,  AUBRY, TITONE, GABRYSZAK, ROBERTS, CRESPO,
  ESPINAL, QUART, BARRON, WEISENBERG, CAHILL,  MILLMAN,  SKOUFIS,  OTIS,
  RAIA  --  Multi-Sponsored by -- M. of A. BRENNAN, CLARK, COOK, CROUCH,
  DUPREY,  GLICK,  HEASTIE,  LENTOL,  LUPARDO,  MAGEE,   PEOPLES-STOKES,
  RUSSELL,  SKARTADOS, SWEENEY, THIELE, TITUS, WEINSTEIN, WRIGHT -- read
  once and referred to the Committee on Health -- reported and  referred
  to the Committee on Codes -- reported and referred to the Committee on
  Ways   and  Means  --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the social services law and the public  health  law,  in
  relation  to prescription drugs in Medicaid managed care programs; and
  to repeal certain provisions of the social services law,  relating  to
  payments for prescription drugs

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

  Section 1. The social services law is amended by adding a new  section
365-i to read as follows:
  S  365-I.  PRESCRIPTION  DRUGS  IN MEDICAID MANAGED CARE PROGRAMS.  1.
DEFINITIONS. AS  USED  IN  THIS  SECTION,  UNLESS  THE  CONTEXT  CLEARLY
REQUIRES OTHERWISE:
  (A)  "ARTICLE" MEANS TITLE ELEVEN OF ARTICLE FIVE OF THIS CHAPTER WITH
RESPECT TO THE MEDICAL ASSISTANCE PROGRAM,  TITLE  ELEVEN-D  OF  ARTICLE
FIVE OF THIS CHAPTER WITH RESPECT TO THE FAMILY HEALTH PLUS PROGRAM, AND
TITLE ONE-A OF ARTICLE TWENTY-FIVE OF THE PUBLIC HEALTH LAW WITH RESPECT
TO THE CHILD HEALTH INSURANCE PROGRAM.
  (B)  "CLINICAL  DRUG  REVIEW  PROGRAM"  MEANS THE CLINICAL DRUG REVIEW
PROGRAM UNDER SECTION TWO HUNDRED SEVENTY-FOUR OF THE PUBLIC HEALTH LAW.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05620-02-3
              

A. 2335--A                          2

  (C) "EMERGENCY CONDITION" MEANS A MEDICAL OR BEHAVIORAL  CONDITION  AS
DETERMINED  BY  THE  PRESCRIBER  OR  PHARMACIST,  THE  ONSET OF WHICH IS
SUDDEN, THAT  MANIFESTS  ITSELF  BY  SYMPTOMS  OF  SUFFICIENT  SEVERITY,
INCLUDING  SEVERE  PAIN,  AND  FOR  WHICH  DELAY  IN BEGINNING TREATMENT
PRESCRIBED BY THE PATIENT'S HEALTH CARE PRACTITIONER WOULD RESULT IN:
  (I)  PLACING  THE  HEALTH  OR SAFETY OF THE PERSON AFFLICTED WITH SUCH
CONDITION OR OTHER PERSON OR PERSONS IN SERIOUS JEOPARDY;
  (II) SERIOUS IMPAIRMENT TO SUCH PERSON'S BODILY FUNCTIONS;
  (III) SERIOUS DYSFUNCTION OF ANY BODILY ORGAN OR PART OF SUCH PERSON;
  (IV) SERIOUS DISFIGUREMENT OF SUCH PERSON; OR
  (V) SEVERE DISCOMFORT.
  (D) "MANAGED CARE  PROVIDER"  MEANS  A  MANAGED  CARE  PROVIDER  UNDER
SECTION  THREE  HUNDRED  SIXTY-FOUR-J OF THIS TITLE, A MANAGED LONG TERM
CARE PLAN OR OTHER CARE  COORDINATION  MODEL  UNDER  SECTION  FORTY-FOUR
HUNDRED THREE-F OF THE PUBLIC HEALTH LAW, A FAMILY HEALTH INSURANCE PLAN
UNDER SECTION THREE HUNDRED SIXTY-NINE-EE OF THIS ARTICLE OR AN EMPLOYER
PARTNERSHIP  FOR  FAMILY  HEALTH  PLUS  PLAN UNDER SECTION THREE HUNDRED
SIXTY-NINE-FF OF THIS ARTICLE (FAMILY HEALTH PLUS PROGRAM), AN  APPROVED
ORGANIZATION  UNDER  TITLE  ONE-A  OF  ARTICLE TWENTY-FIVE OF THE PUBLIC
HEALTH LAW (CHILD HEALTH INSURANCE PROGRAM), OR ANY  OTHER  ENTITY  THAT
PROVIDES  OR  ARRANGES  FOR THE PROVISION OF MEDICAL ASSISTANCE SERVICES
AND SUPPLIES TO PARTICIPANTS DIRECTLY OR INDIRECTLY (INCLUDING BY REFER-
RAL), INCLUDING CASE MANAGEMENT, INCLUDING THE MANAGED  CARE  PROVIDER'S
AUTHORIZED AGENTS.
  (E) "NON-PREFERRED DRUG" MEANS A PRESCRIPTION DRUG THAT REQUIRES PRIOR
AUTHORIZATION UNDER THE PARTICIPANT'S MANAGED CARE PROVIDER.
  (F)  "PARTICIPANT"  MEANS A MEDICAL ASSISTANCE RECIPIENT WHO RECEIVES,
IS REQUIRED TO RECEIVE OR ELECTS TO RECEIVE HIS OR HER  MEDICAL  ASSIST-
ANCE SERVICES FROM A MANAGED CARE PROVIDER.
  (G)  "PREFERRED DRUG" MEANS A PRESCRIPTION DRUG THAT IS NOT A NON-PRE-
FERRED DRUG UNDER THE PATIENT'S MANAGED CARE PROVIDER.  "PREFERRED  DRUG
LIST" MEANS A LIST OF A MANAGED CARE PROVIDER'S PREFERRED DRUGS.
  (H)  "PREFERRED  DRUG PROGRAM" MEANS THE PREFERRED DRUG PROGRAM ESTAB-
LISHED UNDER SECTION TWO HUNDRED SEVENTY-TWO OF THE PUBLIC HEALTH LAW.
  (I) "PRESCRIBER"  MEANS  A  HEALTH  CARE  PROFESSIONAL  AUTHORIZED  TO
PRESCRIBE  PRESCRIPTION  DRUGS  FOR  A  PARTICIPANT  OF THE MANAGED CARE
PROVIDER, ACTING WITHIN HIS OR HER LAWFUL SCOPE OF PRACTICE.
  (J) "PRESCRIPTION DRUG" OR "DRUG" MEANS A DRUG DEFINED IN  SUBDIVISION
SEVEN OF SECTION SIXTY-EIGHT HUNDRED TWO OF THE EDUCATION LAW, FOR WHICH
A  PRESCRIPTION  IS  REQUIRED  UNDER THE FEDERAL FOOD, DRUG AND COSMETIC
ACT. ANY DRUG THAT DOES NOT REQUIRE A PRESCRIPTION UNDER SUCH  ACT,  BUT
WHICH  WOULD  OTHERWISE BE ELIGIBLE FOR REIMBURSEMENT UNDER THIS ARTICLE
WHEN ORDERED BY A PRESCRIBER AND THE  PRESCRIPTION  IS  SUBJECT  TO  THE
APPLICABLE  PROVISIONS  OF THIS ARTICLE AND PARAGRAPH (A) OF SUBDIVISION
FOUR OF SECTION THREE HUNDRED SIXTY-FIVE-A OF THIS TITLE.
  (K) "PRIOR AUTHORIZATION" MEANS A PROCESS REQUIRING THE PRESCRIBER  OR
THE  DISPENSER  TO  VERIFY  WITH THE PARTICIPANT'S MANAGED CARE PROVIDER
THAT THE DRUG IS APPROPRIATE FOR THE NEEDS OF THE SPECIFIC PATIENT.
  (L) "QUALIFIED PRESCRIPTION DRUG SYSTEM" OR "SYSTEM" MEANS  A  PROCESS
UNDER  THIS  SECTION,  APPROVED  BY  THE  COMMISSIONER,  THROUGH WHICH A
MANAGED CARE PROVIDER APPROVES PAYMENT FOR A NON-PREFERRED  DRUG  FOR  A
PARTICIPANT BASED ON PRIOR AUTHORIZATION.
  2.  PAYMENT  FOR  PRESCRIPTION DRUGS UNDER CAPITATION. (A) PAYMENT FOR
PRESCRIPTION DRUGS SHALL BE INCLUDED  IN  THE  CAPITATION  PAYMENTS  FOR
SERVICES OR SUPPLIES PROVIDED TO A MANAGED CARE PROVIDER'S PARTICIPANTS,
PROVIDED  THAT  THE  MANAGED  CARE  PROVIDER PAYS FOR PRESCRIPTION DRUGS

A. 2335--A                          3

UNDER A QUALIFIED PRESCRIPTION  DRUG  SYSTEM.  EVERY  PRESCRIPTION  DRUG
ELIGIBLE  FOR REIMBURSEMENT UNDER THIS ARTICLE PRESCRIBED IN RELATION TO
A SERVICE PROVIDED BY THE  MANAGED  CARE  PROVIDER  SHALL  BE  EITHER  A
PREFERRED  OR  NON-PREFERRED  DRUG UNDER THE QUALIFIED PRESCRIPTION DRUG
SYSTEM.  THE COMMISSIONER SHALL APPROVE A MANAGED CARE PROVIDER'S QUALI-
FIED PRESCRIPTION DRUG SYSTEM IF IT CONFORMS TO THE PROVISIONS  OF  THIS
SECTION.
  (B)  IF  THE MANAGED CARE PROVIDER DOES NOT PAY FOR PRESCRIPTION DRUGS
UNDER  A  QUALIFIED  PRESCRIPTION  DRUG   SYSTEM,   THEN   PAYMENT   FOR
PRESCRIPTION DRUGS FOR THE MANAGED CARE PROVIDER'S PATIENTS SHALL NOT BE
INCLUDED  IN  SUCH  CAPITATION  PAYMENTS AND PRESCRIPTION DRUGS SHALL BE
PROVIDED  FOR  THE  MANAGED  CARE  PROVIDER'S  PARTICIPANTS  UNDER   THE
PREFERRED DRUG PROGRAM.
  3.  QUALIFIED  PRESCRIPTION  DRUG  SYSTEM;  CRITERIA.  (A) A QUALIFIED
PRESCRIPTION DRUG SYSTEM SHALL PROMOTE  ACCESS  TO  THE  MOST  EFFECTIVE
PRESCRIPTION  DRUGS  WHILE REDUCING THE COST OF PRESCRIPTION DRUGS UNDER
THIS ARTICLE. THIS SUBDIVISION AND  SUBDIVISION  FOUR  OF  THIS  SECTION
APPLY TO QUALIFIED PRESCRIPTION DRUG SYSTEMS.
  (B)  WHEN  A  PRESCRIBER PRESCRIBES A NON-PREFERRED DRUG FOR A PARTIC-
IPANT,  REIMBURSEMENT  MAY  BE  DENIED  UNLESS  PRIOR  AUTHORIZATION  IS
OBTAINED,  UNLESS NO PRIOR AUTHORIZATION IS REQUIRED UNDER THIS SECTION.
WHEN A PRESCRIBER PRESCRIBES A PREFERRED  DRUG  FOR  A  PARTICIPANT,  NO
PRIOR  AUTHORIZATION  SHALL  BE REQUIRED FOR REIMBURSEMENT, UNLESS PRIOR
AUTHORIZATION IS REQUIRED UNDER THE CLINICAL DRUG REVIEW PROGRAM.
  (C) THE COMMISSIONER SHALL ESTABLISH PERFORMANCE STANDARDS FOR SYSTEMS
THAT, AT A MINIMUM, ENSURE THAT  SYSTEMS  PROVIDE  SUFFICIENT  TECHNICAL
SUPPORT AND TIMELY RESPONSES TO CONSUMERS, PRESCRIBERS AND PHARMACISTS.
  (D)  THE  COMMISSIONER SHALL ADOPT CRITERIA FOR QUALIFIED PRESCRIPTION
DRUG SYSTEMS AFTER CONSIDERING  RECOMMENDATIONS  AND  COMMENTS  RECEIVED
FROM  PRESCRIBERS,  PHARMACISTS, PARTICIPANTS, AND ORGANIZATIONS REPRES-
ENTING THEM.
  (E) THE MANAGED CARE PROVIDER SHALL DEVELOP ITS  PREFERRED  DRUG  LIST
BASED  INITIALLY ON AN EVALUATION OF THE CLINICAL EFFECTIVENESS, SAFETY,
AND PATIENT OUTCOMES, FOLLOWED BY CONSIDERATION OF  THE  COST-EFFECTIVE-
NESS  OF THE DRUGS. IN EACH THERAPEUTIC CLASS, THE MANAGED CARE PROVIDER
SHALL DETERMINE WHETHER THERE IS ONE DRUG  THAT  IS  SIGNIFICANTLY  MORE
CLINICALLY  EFFECTIVE  AND  SAFE, AND THAT DRUG SHALL BE INCLUDED ON THE
PREFERRED DRUG LIST WITHOUT CONSIDERATION OF COST. IF, AMONG TWO OR MORE
DRUGS IN A THERAPEUTIC CLASS, THE DIFFERENCE IN  CLINICAL  EFFECTIVENESS
AND  SAFETY  IS  NOT CLINICALLY SIGNIFICANT, THEN COST-EFFECTIVENESS MAY
ALSO BE CONSIDERED IN DETERMINING WHICH DRUG OR DRUGS SHALL BE  INCLUDED
ON THE PREFERRED DRUG LIST.
  4. PRIOR AUTHORIZATION. (A) A QUALIFIED PRESCRIPTION DRUG SYSTEM SHALL
MAKE AVAILABLE A TWENTY-FOUR HOUR PER DAY, SEVEN DAYS PER WEEK TELEPHONE
CALL  CENTER  THAT  INCLUDES  A  TOLLFREE  TELEPHONE  LINE AND DEDICATED
FACSIMILE LINE TO RESPOND TO REQUESTS FOR PRIOR AUTHORIZATION. THE  CALL
CENTER  SHALL  INCLUDE  QUALIFIED HEALTH CARE PROFESSIONALS WHO SHALL BE
AVAILABLE TO CONSULT WITH PRESCRIBERS CONCERNING PRESCRIPTION DRUGS THAT
ARE NON-PREFERRED DRUGS. A PRESCRIBER SEEKING PRIOR AUTHORIZATION  SHALL
CONSULT  WITH  THE  PROGRAM  CALL  LINE TO REASONABLY PRESENT HIS OR HER
JUSTIFICATION FOR THE PRESCRIPTION  AND  GIVE  THE  PROGRAM'S  QUALIFIED
HEALTH CARE PROFESSIONAL A REASONABLE OPPORTUNITY TO RESPOND.
  (B)  WHEN  A PATIENT'S HEALTH CARE PROVIDER PRESCRIBES A NON-PREFERRED
DRUG, THE PRESCRIBER SHALL CONSULT WITH THE SYSTEM TO  CONFIRM  THAT  IN
HIS  OR  HER  REASONABLE  PROFESSIONAL  JUDGMENT, THE PATIENT'S CLINICAL

A. 2335--A                          4

CONDITION IS CONSISTENT WITH THE CRITERIA FOR APPROVAL OF  THE  NON-PRE-
FERRED DRUG. SUCH CRITERIA SHALL INCLUDE:
  (I) THE PREFERRED DRUG HAS BEEN TRIED BY THE PATIENT AND HAS FAILED TO
PRODUCE THE DESIRED HEALTH OUTCOMES;
  (II)  THE  PATIENT  HAS  TRIED  THE PREFERRED DRUG AND HAS EXPERIENCED
UNACCEPTABLE SIDE EFFECTS;
  (III) THE PATIENT HAS BEEN STABILIZED  ON  A  NON-PREFERRED  DRUG  AND
TRANSITION TO THE PREFERRED DRUG WOULD BE MEDICALLY CONTRAINDICATED; OR
  (IV)  OTHER CLINICAL INDICATIONS IDENTIFIED BY THE COMMISSIONER OR THE
MANAGED CARE PROVIDER FOR THE PATIENT'S USE OF THE  NON-PREFERRED  DRUG,
WHICH  SHALL INCLUDE CONSIDERATION OF THE MEDICAL NEEDS OF SPECIAL POPU-
LATIONS, INCLUDING CHILDREN,  ELDERLY,  CHRONICALLY  ILL,  PERSONS  WITH
MENTAL HEALTH CONDITIONS, AND PERSONS AFFECTED BY HIV/AIDS.
  (C)  IN THE EVENT THAT THE PATIENT DOES NOT MEET THE CRITERIA IN PARA-
GRAPH (B) OF THIS SUBDIVISION, THE  PRESCRIBER  MAY  PROVIDE  ADDITIONAL
INFORMATION  TO  THE  MANAGED  CARE  PROVIDER  TO  JUSTIFY  THE USE OF A
NON-PREFERRED DRUG. THE SYSTEM SHALL PROVIDE  A  REASONABLE  OPPORTUNITY
FOR A PRESCRIBER TO REASONABLY PRESENT HIS OR HER JUSTIFICATION OF PRIOR
AUTHORIZATION.  IF,  AFTER  CONSULTATION WITH THE MANAGED CARE PROVIDER,
THE PRESCRIBER, IN HIS OR HER REASONABLE PROFESSIONAL  JUDGMENT,  DETER-
MINES   THAT   THE  USE  OF  A  NON-PREFERRED  DRUG  IS  WARRANTED,  THE
PRESCRIBER'S DETERMINATION SHALL BE FINAL.
  (D) IF A PRESCRIBER MEETS THE REQUIREMENTS OF PARAGRAPH (B) OR (C)  OF
THIS  SUBDIVISION,  THE  PRESCRIBER SHALL BE GRANTED PRIOR AUTHORIZATION
UNDER THIS SECTION.
  (E) IN THE INSTANCE WHERE A PRIOR AUTHORIZATION DETERMINATION  IS  NOT
COMPLETED  WITHIN  TWENTY-FOUR  HOURS OF THE ORIGINAL REQUEST, SOLELY AS
THE RESULT OF A FAILURE OF THE SYSTEM (WHETHER BY ACTION  OR  INACTION),
PRIOR  AUTHORIZATION SHALL BE IMMEDIATELY AND AUTOMATICALLY GRANTED WITH
NO FURTHER ACTION BY THE PRESCRIBER AND THE PRESCRIBER SHALL BE NOTIFIED
OF THIS DETERMINATION. IN  THE  INSTANCE  WHERE  A  PRIOR  AUTHORIZATION
DETERMINATION  IS NOT COMPLETED WITHIN TWENTY-FOUR HOURS OF THE ORIGINAL
REQUEST FOR ANY OTHER REASON, A SEVENTY-TWO HOUR SUPPLY OF  THE  MEDICA-
TION  SHALL  BE APPROVED BY THE SYSTEM AND THE PRESCRIBER SHALL BE NOTI-
FIED OF THIS DETERMINATION.
  (F) WHEN, IN THE JUDGMENT OF THE  PRESCRIBER  OR  THE  PHARMACIST,  AN
EMERGENCY  CONDITION  EXISTS,  AND THE PRESCRIBER OR PHARMACIST NOTIFIES
THE MANAGED CARE PROVIDER THAT AN EMERGENCY CONDITION EXISTS,  A  SEVEN-
TY-TWO HOUR EMERGENCY SUPPLY OF THE DRUG PRESCRIBED SHALL BE IMMEDIATELY
AUTHORIZED BY THE MANAGED CARE PROVIDER.
  (G)  IN  THE EVENT THAT A PATIENT PRESENTS A PRESCRIPTION TO A PHARMA-
CIST FOR A PRESCRIPTION DRUG THAT IS A NON-PREFERRED DRUG AND FOR  WHICH
THE  PRESCRIBER  HAS  NOT OBTAINED A PRIOR AUTHORIZATION, THE PHARMACIST
SHALL, WITHIN A PROMPT PERIOD BASED ON PROFESSIONAL JUDGMENT, NOTIFY THE
PRESCRIBER. THE PRESCRIBER  SHALL,  WITHIN  A  PROMPT  PERIOD  BASED  ON
PROFESSIONAL  JUDGMENT, EITHER SEEK PRIOR AUTHORIZATION OR SHALL CONTACT
THE PHARMACIST AND AMEND OR  CANCEL  THE  PRESCRIPTION.  THE  PHARMACIST
SHALL, WITHIN A PROMPT PERIOD BASED ON PROFESSIONAL JUDGMENT, NOTIFY THE
PATIENT WHEN PRIOR AUTHORIZATION HAS BEEN OBTAINED OR DENIED OR WHEN THE
PRESCRIPTION HAS BEEN AMENDED OR CANCELLED.
  (H)  ONCE PRIOR AUTHORIZATION OF A PRESCRIPTION FOR A DRUG THAT IS NOT
ON THE PREFERRED DRUG LIST IS OBTAINED, PRIOR AUTHORIZATION SHALL NOT BE
REQUIRED FOR ANY REFILL OF THE PRESCRIPTION.
  (I) NO PRIOR AUTHORIZATION UNDER A QUALIFIED PRESCRIPTION DRUG  SYSTEM
SHALL  BE  REQUIRED FOR: (I) ATYPICAL ANTI-PSYCHOTICS; (II) ANTI-DEPRES-
SANTS; (III) ANTI-RETROVIRALS USED IN THE TREATMENT  OF  HIV/AIDS;  (IV)

A. 2335--A                          5

ANTI-REJECTION  DRUGS  USED  IN THE TREATMENT OF ORGAN AND TISSUE TRANS-
PLANTS; AND (V) ANY OTHER THERAPEUTIC CLASS FOR THE TREATMENT OF  MENTAL
ILLNESS OR HIV/AIDS, APPROVED BY THE COMMISSIONER.
  5. CLINICAL DRUG REVIEW PROGRAM. IN THE CASE OF A DRUG FOR WHICH PRIOR
AUTHORIZATION  IS REQUIRED UNDER THE CLINICAL DRUG REVIEW PROGRAM, PRIOR
AUTHORIZATION SHALL BE OBTAINED UNDER THE CLINICAL DRUG  REVIEW  PROGRAM
AND NOT UNDER THIS SECTION.
  6.  PRESCRIBER  CONDUCT.  THE MANAGED CARE PROVIDER AND THE DEPARTMENT
SHALL  MONITOR  THE  PRIOR  AUTHORIZATION  PROCESS  UNDER  A   QUALIFIED
PRESCRIPTION DRUG SYSTEM FOR PRESCRIBING PATTERNS WHICH ARE SUSPECTED OF
ENDANGERING  THE HEALTH AND SAFETY OF THE PATIENT OR WHICH DEMONSTRATE A
LIKELIHOOD OF FRAUD OR ABUSE. THE MANAGED CARE PROVIDER AND THE  DEPART-
MENT SHALL TAKE ANY AND ALL ACTIONS OTHERWISE PERMITTED BY LAW TO INVES-
TIGATE SUCH PRESCRIBING PATTERNS, TO TAKE REMEDIAL ACTION AND TO ENFORCE
APPLICABLE FEDERAL AND STATE LAWS.
  7. USE OF PREFERRED DRUG PROGRAM. THE COMMISSIONER MAY CONTRACT WITH A
MANAGED CARE PROVIDER FOR THE PROVIDER TO USE THE PREFERRED DRUG PROGRAM
TO  PROVIDE PRIOR AUTHORIZATION UNDER THE MANAGED CARE PROVIDER'S QUALI-
FIED PRESCRIPTION DRUG SYSTEM. THE CONTRACT SHALL INCLUDE TERMS REQUIRED
BY THE COMMISSIONER TO MAXIMIZE SAVINGS  TO  THE  MEDICAID  PROGRAM  AND
PROTECT  THE HEALTH AND INTERESTS OF THE MANAGED CARE PROVIDER'S PARTIC-
IPANTS. THE CONTRACT SHALL PROVIDE WHETHER THE  PREFERRED  DRUG  PROGRAM
SHALL  USE  THE  MANAGED CARE PROVIDER'S LISTS OF PREFERRED AND NON-PRE-
FERRED DRUGS OR  THE  PREFERRED  DRUG  LIST  UNDER  THE  PREFERRED  DRUG
PROGRAM, WITH RESPECT TO WHETHER PRIOR AUTHORIZATION IS REQUIRED.
  S 2. Subdivisions 25 and  25-a of section 364-j of the social services
law are REPEALED.
  S  3.  Subdivision 2-b of section 369-ee of the social services law is
REPEALED and a new subdivision 2-b is added to read as follows:
  2-B. PAYMENT FOR PRESCRIPTION DRUGS. PAYMENT  FOR  PRESCRIPTION  DRUGS
SHALL  BE  INCLUDED  IN  THE CAPITATED PAYMENTS FOR SERVICES OR SUPPLIES
PROVIDED UNDER A FAMILY HEALTH INSURANCE PLAN OR PROVIDED BY AN EMPLOYER
PARTNERSHIP FOR FAMILY HEALTH PLUS  PLAN  AUTHORIZED  BY  SECTION  THREE
HUNDRED  SIXTY-NINE-FF  OF  THIS  TITLE, PROVIDED THAT THE PLAN PAYS FOR
PRESCRIPTION DRUGS UNDER A  QUALIFIED  PRESCRIPTION  DRUG  SYSTEM  UNDER
SECTION  THREE  HUNDRED SIXTY-FIVE-I OF THIS ARTICLE. EVERY PRESCRIPTION
DRUG  ELIGIBLE  FOR  REIMBURSEMENT  UNDER  THIS  ARTICLE  PRESCRIBED  IN
RELATION  TO  A SERVICE PROVIDED BY THE PLAN SHALL BE EITHER A PREFERRED
OR NON-PREFERRED DRUG UNDER THE QUALIFIED PRESCRIPTION DRUG  SYSTEM.  IF
THE  PLAN  DOES  NOT  PAY  FOR  PRESCRIPTION  DRUGS  UNDER  A  QUALIFIED
PRESCRIPTION DRUG SYSTEM, THEN PAYMENT FOR PRESCRIPTION  DRUGS  FOR  THE
PLAN'S  PATIENTS  SHALL  NOT BE INCLUDED IN SUCH CAPITATION PAYMENTS AND
PRESCRIPTION DRUGS SHALL BE PROVIDED  FOR  THE  APPROVED  ORGANIZATION'S
PARTICIPANTS UNDER THE PREFERRED DRUG PROGRAM.
  S  4. Section 2511 of the public health law is amended by adding a new
subdivision 22 to read as follows:
  22. PAYMENT FOR PRESCRIPTION DRUGS.  PAYMENT  FOR  PRESCRIPTION  DRUGS
SHALL  BE  INCLUDED IN THE PAYMENTS FOR SERVICES OR SUPPLIES PROVIDED BY
THE APPROVED ORGANIZATION, PROVIDED THAT THE PLAN PAYS FOR  PRESCRIPTION
DRUGS  UNDER  A  QUALIFIED  PRESCRIPTION DRUG SYSTEM UNDER SECTION THREE
HUNDRED SIXTY-FIVE-I OF THE SOCIAL SERVICES LAW. EVERY PRESCRIPTION DRUG
ELIGIBLE FOR REIMBURSEMENT UNDER THIS ARTICLE PRESCRIBED IN RELATION  TO
A  SERVICE  PROVIDED  BY  THE  APPROVED  ORGANIZATION  SHALL BE EITHER A
PREFERRED OR NON-PREFERRED DRUG UNDER THE  QUALIFIED  PRESCRIPTION  DRUG
SYSTEM. IF THE APPROVED ORGANIZATION DOES NOT PAY FOR PRESCRIPTION DRUGS
UNDER   A   QUALIFIED   PRESCRIPTION   DRUG  SYSTEM,  THEN  PAYMENT  FOR

A. 2335--A                          6

PRESCRIPTION DRUGS FOR THE APPROVED ORGANIZATION'S PATIENTS SHALL NOT BE
INCLUDED IN SUCH PAYMENTS AND PRESCRIPTION DRUGS SHALL BE  PROVIDED  FOR
THE  APPROVED  ORGANIZATION'S  PARTICIPANTS  UNDER  THE  PREFERRED  DRUG
PROGRAM.
  S  5.  Subdivision  11  of  section  270  of the public health law, as
amended by section 2-a of part C of chapter 58 of the laws of  2008,  is
amended to read as follows:
  11.  "State  public  health plan" means the medical assistance program
established by title eleven of article five of the social  services  law
(referred  to in this article as "Medicaid"), the elderly pharmaceutical
insurance coverage program established by title three of article two  of
the  elder law (referred to in this article as "EPIC"), [and] the family
health plus program established by section three  hundred  sixty-nine-ee
of the social services law [to the extent that section provides that the
program  shall  be subject to this article], AND THE CHILD HEALTH INSUR-
ANCE PROGRAM UNDER TITLE ONE-A OF ARTICLE TWENTY-FIVE OF THIS CHAPTER.
  S 6. Section 272 of the public health law is amended by adding  a  new
subdivision 12 to read as follows:
  12.  NO PRIOR AUTHORIZATION SHALL BE REQUIRED UNDER THE PREFERRED DRUG
PROGRAM FOR:
  (A) ATYPICAL ANTI-PSYCHOTICS; (B) ANTI-DEPRESSANTS; (C)  ANTI-RETROVI-
RALS USED IN THE TREATMENT OF HIV/AIDS; (D) ANTI-REJECTION DRUGS USED IN
THE  TREATMENT OF ORGAN AND TISSUE TRANSPLANTS; AND (E) ANY OTHER THERA-
PEUTIC CLASS FOR THE TREATMENT OF MENTAL  ILLNESS  OR  HIV/AIDS,  RECOM-
MENDED BY THE BOARD AND APPROVED BY THE COMMISSIONER UNDER THIS SECTION.
  S 7. This act shall take effect on the one hundred eightieth day after
it  shall  become a law; provided, however, that section two of this act
shall take effect one year after  this  act  shall  become  a  law;  and
provided further, that the commissioner of health is immediately author-
ized  and  directed to take actions necessary to implement this act when
it takes effect.

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

                                 2335--B

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 14, 2013
                               ___________

Introduced  by  M.  of A. RODRIGUEZ, ABINANTI, GUNTHER, BRONSON, RIVERA,
  CYMBROWITZ, BROOK-KRASNY, GOTTFRIED, JACOBS, MAISEL, SCHIMEL, BOYLAND,
  ARROYO, JAFFEE, PERRY, SCARBOROUGH, WEPRIN, DINOWITZ, CAMARA, GOLDFED-
  ER, GIBSON, ROSENTHAL, COLTON, HOOPER, ZEBROWSKI, SIMANOWITZ,  MAGNAR-
  ELLI,  BENEDETTO,  ABBATE,  AUBRY, TITONE, GABRYSZAK, ROBERTS, CRESPO,
  ESPINAL, QUART, BARRON, WEISENBERG, CAHILL,  MILLMAN,  SKOUFIS,  OTIS,
  RAIA  --  Multi-Sponsored by -- M. of A. BRENNAN, CLARK, COOK, CROUCH,
  DUPREY,  GLICK,  HEASTIE,  LENTOL,  LUPARDO,  MAGEE,   PEOPLES-STOKES,
  RUSSELL,  SKARTADOS, SWEENEY, THIELE, TITUS, WEINSTEIN, WRIGHT -- read
  once and referred to the Committee on Health -- reported and  referred
  to the Committee on Codes -- reported and referred to the Committee on
  Ways   and  Means  --  committee  discharged,  bill  amended,  ordered
  reprinted as amended  and  recommitted  to  said  committee  --  again
  reported  from  said  committee  with amendments, ordered reprinted as
  amended and recommitted to said committee

AN ACT to amend the social services law and the public  health  law,  in
  relation  to prescription drugs in Medicaid managed care programs; and
  to repeal certain provisions of the social services law,  relating  to
  payments for prescription drugs

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

  Section 1. The social services law is amended by adding a new  section
365-i to read as follows:
  S  365-I.  PRESCRIPTION  DRUGS  IN MEDICAID MANAGED CARE PROGRAMS.  1.
DEFINITIONS. AS  USED  IN  THIS  SECTION,  UNLESS  THE  CONTEXT  CLEARLY
REQUIRES OTHERWISE:
  (A)  "ARTICLE" MEANS TITLE ELEVEN OF ARTICLE FIVE OF THIS CHAPTER WITH
RESPECT TO THE MEDICAL ASSISTANCE PROGRAM,  TITLE  ELEVEN-D  OF  ARTICLE
FIVE OF THIS CHAPTER WITH RESPECT TO THE FAMILY HEALTH PLUS PROGRAM, AND
TITLE ONE-A OF ARTICLE TWENTY-FIVE OF THE PUBLIC HEALTH LAW WITH RESPECT
TO THE CHILD HEALTH INSURANCE PROGRAM.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05620-03-3
              

A. 2335--B                          2

  (B)  "CLINICAL  DRUG  REVIEW  PROGRAM"  MEANS THE CLINICAL DRUG REVIEW
PROGRAM UNDER SECTION TWO HUNDRED SEVENTY-FOUR OF THE PUBLIC HEALTH LAW.
  (C)  "EMERGENCY  CONDITION" MEANS A MEDICAL OR BEHAVIORAL CONDITION AS
DETERMINED BY THE PRESCRIBER  OR  PHARMACIST,  THE  ONSET  OF  WHICH  IS
SUDDEN,  THAT  MANIFESTS  ITSELF  BY  SYMPTOMS  OF  SUFFICIENT SEVERITY,
INCLUDING SEVERE PAIN,  AND  FOR  WHICH  DELAY  IN  BEGINNING  TREATMENT
PRESCRIBED BY THE PATIENT'S HEALTH CARE PRACTITIONER WOULD RESULT IN:
  (I)  PLACING  THE  HEALTH  OR SAFETY OF THE PERSON AFFLICTED WITH SUCH
CONDITION OR OTHER PERSON OR PERSONS IN SERIOUS JEOPARDY;
  (II) SERIOUS IMPAIRMENT TO SUCH PERSON'S BODILY FUNCTIONS;
  (III) SERIOUS DYSFUNCTION OF ANY BODILY ORGAN OR PART OF SUCH PERSON;
  (IV) SERIOUS DISFIGUREMENT OF SUCH PERSON; OR
  (V) SEVERE DISCOMFORT.
  (D) "MANAGED CARE  PROVIDER"  MEANS  A  MANAGED  CARE  PROVIDER  UNDER
SECTION  THREE  HUNDRED  SIXTY-FOUR-J OF THIS TITLE, A MANAGED LONG TERM
CARE PLAN OR OTHER CARE  COORDINATION  MODEL  UNDER  SECTION  FORTY-FOUR
HUNDRED THREE-F OF THE PUBLIC HEALTH LAW, A FAMILY HEALTH INSURANCE PLAN
UNDER SECTION THREE HUNDRED SIXTY-NINE-EE OF THIS ARTICLE OR AN EMPLOYER
PARTNERSHIP  FOR  FAMILY  HEALTH  PLUS  PLAN UNDER SECTION THREE HUNDRED
SIXTY-NINE-FF OF THIS ARTICLE (FAMILY HEALTH PLUS PROGRAM), AN  APPROVED
ORGANIZATION  UNDER  TITLE  ONE-A  OF  ARTICLE TWENTY-FIVE OF THE PUBLIC
HEALTH LAW (CHILD HEALTH INSURANCE PROGRAM), OR ANY  OTHER  ENTITY  THAT
PROVIDES  OR  ARRANGES  FOR THE PROVISION OF MEDICAL ASSISTANCE SERVICES
AND SUPPLIES TO PARTICIPANTS DIRECTLY OR INDIRECTLY (INCLUDING BY REFER-
RAL), INCLUDING CASE MANAGEMENT, INCLUDING THE MANAGED  CARE  PROVIDER'S
AUTHORIZED AGENTS.
  (E) "NON-PREFERRED DRUG" MEANS A PRESCRIPTION DRUG THAT REQUIRES PRIOR
AUTHORIZATION UNDER THE PARTICIPANT'S MANAGED CARE PROVIDER.
  (F)  "PARTICIPANT"  MEANS A MEDICAL ASSISTANCE RECIPIENT WHO RECEIVES,
IS REQUIRED TO RECEIVE OR ELECTS TO RECEIVE HIS OR HER  MEDICAL  ASSIST-
ANCE SERVICES FROM A MANAGED CARE PROVIDER.
  (G)  "PREFERRED DRUG" MEANS A PRESCRIPTION DRUG THAT IS NOT A NON-PRE-
FERRED DRUG UNDER THE PATIENT'S MANAGED CARE PROVIDER.  "PREFERRED  DRUG
LIST" MEANS A LIST OF A MANAGED CARE PROVIDER'S PREFERRED DRUGS.
  (H)  "PREFERRED  DRUG PROGRAM" MEANS THE PREFERRED DRUG PROGRAM ESTAB-
LISHED UNDER SECTION TWO HUNDRED SEVENTY-TWO OF THE PUBLIC HEALTH LAW.
  (I) "PRESCRIBER"  MEANS  A  HEALTH  CARE  PROFESSIONAL  AUTHORIZED  TO
PRESCRIBE  PRESCRIPTION  DRUGS  FOR  A  PARTICIPANT  OF THE MANAGED CARE
PROVIDER, ACTING WITHIN HIS OR HER LAWFUL SCOPE OF PRACTICE.
  (J) "PRESCRIPTION DRUG" OR "DRUG" MEANS A DRUG DEFINED IN  SUBDIVISION
SEVEN OF SECTION SIXTY-EIGHT HUNDRED TWO OF THE EDUCATION LAW, FOR WHICH
A  PRESCRIPTION  IS  REQUIRED  UNDER THE FEDERAL FOOD, DRUG AND COSMETIC
ACT. ANY DRUG THAT DOES NOT REQUIRE A PRESCRIPTION UNDER SUCH  ACT,  BUT
WHICH  WOULD  OTHERWISE BE ELIGIBLE FOR REIMBURSEMENT UNDER THIS ARTICLE
WHEN ORDERED BY A PRESCRIBER AND THE  PRESCRIPTION  IS  SUBJECT  TO  THE
APPLICABLE  PROVISIONS  OF THIS ARTICLE AND PARAGRAPH (A) OF SUBDIVISION
FOUR OF SECTION THREE HUNDRED SIXTY-FIVE-A OF THIS TITLE.
  (K) "PRIOR AUTHORIZATION" MEANS A PROCESS REQUIRING THE PRESCRIBER  OR
THE  DISPENSER  TO  VERIFY  WITH THE PARTICIPANT'S MANAGED CARE PROVIDER
THAT THE DRUG IS APPROPRIATE FOR THE NEEDS OF THE SPECIFIC PATIENT.
  (L) "QUALIFIED PRESCRIPTION DRUG SYSTEM" OR "SYSTEM" MEANS  A  PROCESS
UNDER  THIS  SECTION,  APPROVED  BY  THE  COMMISSIONER,  THROUGH WHICH A
MANAGED CARE PROVIDER APPROVES PAYMENT FOR A NON-PREFERRED  DRUG  FOR  A
PARTICIPANT BASED ON PRIOR AUTHORIZATION.
  2.  PAYMENT  FOR  PRESCRIPTION DRUGS UNDER CAPITATION. (A) PAYMENT FOR
PRESCRIPTION DRUGS SHALL BE INCLUDED  IN  THE  CAPITATION  PAYMENTS  FOR

A. 2335--B                          3

SERVICES OR SUPPLIES PROVIDED TO A MANAGED CARE PROVIDER'S PARTICIPANTS,
PROVIDED  THAT  THE  MANAGED  CARE  PROVIDER PAYS FOR PRESCRIPTION DRUGS
UNDER A QUALIFIED PRESCRIPTION  DRUG  SYSTEM.  EVERY  PRESCRIPTION  DRUG
ELIGIBLE  FOR REIMBURSEMENT UNDER THIS ARTICLE PRESCRIBED IN RELATION TO
A SERVICE PROVIDED BY THE  MANAGED  CARE  PROVIDER  SHALL  BE  EITHER  A
PREFERRED  OR  NON-PREFERRED  DRUG UNDER THE QUALIFIED PRESCRIPTION DRUG
SYSTEM.  THE COMMISSIONER SHALL APPROVE A MANAGED CARE PROVIDER'S QUALI-
FIED PRESCRIPTION DRUG SYSTEM IF IT CONFORMS TO THE PROVISIONS  OF  THIS
SECTION.
  (B)  IF  THE MANAGED CARE PROVIDER DOES NOT PAY FOR PRESCRIPTION DRUGS
UNDER  A  QUALIFIED  PRESCRIPTION  DRUG   SYSTEM,   THEN   PAYMENT   FOR
PRESCRIPTION DRUGS FOR THE MANAGED CARE PROVIDER'S PATIENTS SHALL NOT BE
INCLUDED  IN  SUCH  CAPITATION  PAYMENTS AND PRESCRIPTION DRUGS SHALL BE
PROVIDED  FOR  THE  MANAGED  CARE  PROVIDER'S  PARTICIPANTS  UNDER   THE
PREFERRED DRUG PROGRAM.
  3.  QUALIFIED  PRESCRIPTION  DRUG  SYSTEM;  CRITERIA.  (A) A QUALIFIED
PRESCRIPTION DRUG SYSTEM SHALL PROMOTE  ACCESS  TO  THE  MOST  EFFECTIVE
PRESCRIPTION  DRUGS  WHILE REDUCING THE COST OF PRESCRIPTION DRUGS UNDER
THIS ARTICLE. THIS SUBDIVISION AND  SUBDIVISION  FOUR  OF  THIS  SECTION
APPLY TO QUALIFIED PRESCRIPTION DRUG SYSTEMS.
  (B)  WHEN  A  PRESCRIBER PRESCRIBES A NON-PREFERRED DRUG FOR A PARTIC-
IPANT,  REIMBURSEMENT  MAY  BE  DENIED  UNLESS  PRIOR  AUTHORIZATION  IS
OBTAINED,  UNLESS NO PRIOR AUTHORIZATION IS REQUIRED UNDER THIS SECTION.
WHEN A PRESCRIBER PRESCRIBES A PREFERRED  DRUG  FOR  A  PARTICIPANT,  NO
PRIOR  AUTHORIZATION  SHALL  BE REQUIRED FOR REIMBURSEMENT, UNLESS PRIOR
AUTHORIZATION IS REQUIRED UNDER THE CLINICAL DRUG REVIEW PROGRAM.
  (C) THE COMMISSIONER SHALL ESTABLISH PERFORMANCE STANDARDS FOR SYSTEMS
THAT, AT A MINIMUM, ENSURE THAT  SYSTEMS  PROVIDE  SUFFICIENT  TECHNICAL
SUPPORT AND TIMELY RESPONSES TO CONSUMERS, PRESCRIBERS AND PHARMACISTS.
  (D)  THE  COMMISSIONER SHALL ADOPT CRITERIA FOR QUALIFIED PRESCRIPTION
DRUG SYSTEMS AFTER CONSIDERING  RECOMMENDATIONS  AND  COMMENTS  RECEIVED
FROM  PRESCRIBERS,  PHARMACISTS, PARTICIPANTS, AND ORGANIZATIONS REPRES-
ENTING THEM.
  (E) THE MANAGED CARE PROVIDER SHALL DEVELOP ITS  PREFERRED  DRUG  LIST
BASED  INITIALLY ON AN EVALUATION OF THE CLINICAL EFFECTIVENESS, SAFETY,
AND PATIENT OUTCOMES, FOLLOWED BY CONSIDERATION OF  THE  COST-EFFECTIVE-
NESS  OF THE DRUGS. IN EACH THERAPEUTIC CLASS, THE MANAGED CARE PROVIDER
SHALL DETERMINE WHETHER THERE IS ONE DRUG  THAT  IS  SIGNIFICANTLY  MORE
CLINICALLY  EFFECTIVE  AND  SAFE, AND THAT DRUG SHALL BE INCLUDED ON THE
PREFERRED DRUG LIST WITHOUT CONSIDERATION OF COST. IF, AMONG TWO OR MORE
DRUGS IN A THERAPEUTIC CLASS, THE DIFFERENCE IN  CLINICAL  EFFECTIVENESS
AND  SAFETY  IS  NOT CLINICALLY SIGNIFICANT, THEN COST-EFFECTIVENESS MAY
ALSO BE CONSIDERED IN DETERMINING WHICH DRUG OR DRUGS SHALL BE  INCLUDED
ON THE PREFERRED DRUG LIST.
  4. PRIOR AUTHORIZATION. (A) A QUALIFIED PRESCRIPTION DRUG SYSTEM SHALL
MAKE AVAILABLE A TWENTY-FOUR HOUR PER DAY, SEVEN DAYS PER WEEK TELEPHONE
CALL  CENTER  THAT  INCLUDES  A  TOLLFREE  TELEPHONE  LINE AND DEDICATED
FACSIMILE LINE TO RESPOND TO REQUESTS FOR PRIOR AUTHORIZATION. THE  CALL
CENTER  SHALL  INCLUDE  QUALIFIED HEALTH CARE PROFESSIONALS WHO SHALL BE
AVAILABLE TO CONSULT WITH PRESCRIBERS CONCERNING PRESCRIPTION DRUGS THAT
ARE NON-PREFERRED DRUGS. A PRESCRIBER SEEKING PRIOR AUTHORIZATION  SHALL
CONSULT  WITH  THE  PROGRAM  CALL  LINE TO REASONABLY PRESENT HIS OR HER
JUSTIFICATION FOR THE PRESCRIPTION  AND  GIVE  THE  PROGRAM'S  QUALIFIED
HEALTH CARE PROFESSIONAL A REASONABLE OPPORTUNITY TO RESPOND.
  (B)  WHEN  A PATIENT'S HEALTH CARE PROVIDER PRESCRIBES A NON-PREFERRED
DRUG, THE PRESCRIBER SHALL CONSULT WITH THE SYSTEM TO  CONFIRM  THAT  IN

A. 2335--B                          4

HIS  OR  HER  REASONABLE  PROFESSIONAL  JUDGMENT, THE PATIENT'S CLINICAL
CONDITION IS CONSISTENT WITH THE CRITERIA FOR APPROVAL OF  THE  NON-PRE-
FERRED DRUG. SUCH CRITERIA SHALL INCLUDE:
  (I) THE PREFERRED DRUG HAS BEEN TRIED BY THE PATIENT AND HAS FAILED TO
PRODUCE THE DESIRED HEALTH OUTCOMES;
  (II)  THE  PATIENT  HAS  TRIED  THE PREFERRED DRUG AND HAS EXPERIENCED
UNACCEPTABLE SIDE EFFECTS;
  (III) THE PATIENT HAS BEEN STABILIZED  ON  A  NON-PREFERRED  DRUG  AND
TRANSITION TO THE PREFERRED DRUG WOULD BE MEDICALLY CONTRAINDICATED; OR
  (IV)  OTHER CLINICAL INDICATIONS IDENTIFIED BY THE COMMISSIONER OR THE
MANAGED CARE PROVIDER FOR THE PATIENT'S USE OF THE  NON-PREFERRED  DRUG,
WHICH  SHALL INCLUDE CONSIDERATION OF THE MEDICAL NEEDS OF SPECIAL POPU-
LATIONS, INCLUDING CHILDREN,  ELDERLY,  CHRONICALLY  ILL,  PERSONS  WITH
MENTAL  HEALTH CONDITIONS, AND PERSONS AFFECTED BY HIV/AIDS OR HEPATITIS
C.
  (C) IN THE EVENT THAT THE PATIENT DOES NOT MEET THE CRITERIA IN  PARA-
GRAPH  (B)  OF  THIS  SUBDIVISION, THE PRESCRIBER MAY PROVIDE ADDITIONAL
INFORMATION TO THE MANAGED  CARE  PROVIDER  TO  JUSTIFY  THE  USE  OF  A
NON-PREFERRED  DRUG.  THE  SYSTEM SHALL PROVIDE A REASONABLE OPPORTUNITY
FOR A PRESCRIBER TO REASONABLY PRESENT HIS OR HER JUSTIFICATION OF PRIOR
AUTHORIZATION. IF, AFTER CONSULTATION WITH THE  MANAGED  CARE  PROVIDER,
THE  PRESCRIBER,  IN HIS OR HER REASONABLE PROFESSIONAL JUDGMENT, DETER-
MINES  THAT  THE  USE  OF  A  NON-PREFERRED  DRUG  IS   WARRANTED,   THE
PRESCRIBER'S DETERMINATION SHALL BE FINAL.
  (D)  IF A PRESCRIBER MEETS THE REQUIREMENTS OF PARAGRAPH (B) OR (C) OF
THIS SUBDIVISION, THE PRESCRIBER SHALL BE  GRANTED  PRIOR  AUTHORIZATION
UNDER THIS SECTION.
  (E)  IN  THE INSTANCE WHERE A PRIOR AUTHORIZATION DETERMINATION IS NOT
COMPLETED WITHIN TWENTY-FOUR HOURS OF THE ORIGINAL  REQUEST,  SOLELY  AS
THE  RESULT  OF A FAILURE OF THE SYSTEM (WHETHER BY ACTION OR INACTION),
PRIOR AUTHORIZATION SHALL BE IMMEDIATELY AND AUTOMATICALLY GRANTED  WITH
NO FURTHER ACTION BY THE PRESCRIBER AND THE PRESCRIBER SHALL BE NOTIFIED
OF  THIS  DETERMINATION.  IN  THE  INSTANCE  WHERE A PRIOR AUTHORIZATION
DETERMINATION IS NOT COMPLETED WITHIN TWENTY-FOUR HOURS OF THE  ORIGINAL
REQUEST  FOR  ANY OTHER REASON, A SEVENTY-TWO HOUR SUPPLY OF THE MEDICA-
TION SHALL BE APPROVED BY THE SYSTEM AND THE PRESCRIBER SHALL  BE  NOTI-
FIED OF THIS DETERMINATION.
  (F)  WHEN,  IN  THE  JUDGMENT  OF THE PRESCRIBER OR THE PHARMACIST, AN
EMERGENCY CONDITION EXISTS, AND THE PRESCRIBER  OR  PHARMACIST  NOTIFIES
THE  MANAGED  CARE PROVIDER THAT AN EMERGENCY CONDITION EXISTS, A SEVEN-
TY-TWO HOUR EMERGENCY SUPPLY OF THE DRUG PRESCRIBED SHALL BE IMMEDIATELY
AUTHORIZED BY THE MANAGED CARE PROVIDER.
  (G) IN THE EVENT THAT A PATIENT PRESENTS A PRESCRIPTION TO  A  PHARMA-
CIST  FOR A PRESCRIPTION DRUG THAT IS A NON-PREFERRED DRUG AND FOR WHICH
THE PRESCRIBER HAS NOT OBTAINED A PRIOR  AUTHORIZATION,  THE  PHARMACIST
SHALL, WITHIN A PROMPT PERIOD BASED ON PROFESSIONAL JUDGMENT, NOTIFY THE
PRESCRIBER.  THE  PRESCRIBER  SHALL,  WITHIN  A  PROMPT  PERIOD BASED ON
PROFESSIONAL JUDGMENT, EITHER SEEK PRIOR AUTHORIZATION OR SHALL  CONTACT
THE  PHARMACIST  AND  AMEND  OR  CANCEL THE PRESCRIPTION. THE PHARMACIST
SHALL, WITHIN A PROMPT PERIOD BASED ON PROFESSIONAL JUDGMENT, NOTIFY THE
PATIENT WHEN PRIOR AUTHORIZATION HAS BEEN OBTAINED OR DENIED OR WHEN THE
PRESCRIPTION HAS BEEN AMENDED OR CANCELLED.
  (H) ONCE PRIOR AUTHORIZATION OF A PRESCRIPTION FOR A DRUG THAT IS  NOT
ON THE PREFERRED DRUG LIST IS OBTAINED, PRIOR AUTHORIZATION SHALL NOT BE
REQUIRED FOR ANY REFILL OF THE PRESCRIPTION.

A. 2335--B                          5

  (I)  NO PRIOR AUTHORIZATION UNDER A QUALIFIED PRESCRIPTION DRUG SYSTEM
SHALL BE REQUIRED FOR: (I) ATYPICAL ANTI-PSYCHOTICS;  (II)  ANTI-DEPRES-
SANTS; (III) ANTI-RETROVIRALS USED IN THE TREATMENT OF HIV/AIDS OR HEPA-
TITIS  C;  (IV)  ANTI-REJECTION DRUGS USED IN THE TREATMENT OF ORGAN AND
TISSUE  TRANSPLANTS;  AND (V) ANY OTHER THERAPEUTIC CLASS FOR THE TREAT-
MENT OF MENTAL ILLNESS, HIV/AIDS OR HEPATITIS C, APPROVED BY THE COMMIS-
SIONER.
  5. CLINICAL DRUG REVIEW PROGRAM. IN THE CASE OF A DRUG FOR WHICH PRIOR
AUTHORIZATION IS REQUIRED UNDER THE CLINICAL DRUG REVIEW PROGRAM,  PRIOR
AUTHORIZATION  SHALL  BE OBTAINED UNDER THE CLINICAL DRUG REVIEW PROGRAM
AND NOT UNDER THIS SECTION.
  6. PRESCRIBER CONDUCT. THE MANAGED CARE PROVIDER  AND  THE  DEPARTMENT
SHALL   MONITOR  THE  PRIOR  AUTHORIZATION  PROCESS  UNDER  A  QUALIFIED
PRESCRIPTION DRUG SYSTEM FOR PRESCRIBING PATTERNS WHICH ARE SUSPECTED OF
ENDANGERING THE HEALTH AND SAFETY OF THE PATIENT OR WHICH DEMONSTRATE  A
LIKELIHOOD  OF FRAUD OR ABUSE. THE MANAGED CARE PROVIDER AND THE DEPART-
MENT SHALL TAKE ANY AND ALL ACTIONS OTHERWISE PERMITTED BY LAW TO INVES-
TIGATE SUCH PRESCRIBING PATTERNS, TO TAKE REMEDIAL ACTION AND TO ENFORCE
APPLICABLE FEDERAL AND STATE LAWS.
  7. USE OF PREFERRED DRUG PROGRAM. THE COMMISSIONER MAY CONTRACT WITH A
MANAGED CARE PROVIDER FOR THE PROVIDER TO USE THE PREFERRED DRUG PROGRAM
TO PROVIDE PRIOR AUTHORIZATION UNDER THE MANAGED CARE PROVIDER'S  QUALI-
FIED PRESCRIPTION DRUG SYSTEM. THE CONTRACT SHALL INCLUDE TERMS REQUIRED
BY  THE  COMMISSIONER  TO  MAXIMIZE  SAVINGS TO THE MEDICAID PROGRAM AND
PROTECT THE HEALTH AND INTERESTS OF THE MANAGED CARE PROVIDER'S  PARTIC-
IPANTS.  THE  CONTRACT  SHALL PROVIDE WHETHER THE PREFERRED DRUG PROGRAM
SHALL USE THE MANAGED CARE PROVIDER'S LISTS OF  PREFERRED  AND  NON-PRE-
FERRED  DRUGS  OR  THE  PREFERRED  DRUG  LIST  UNDER  THE PREFERRED DRUG
PROGRAM, WITH RESPECT TO WHETHER PRIOR AUTHORIZATION IS REQUIRED.
  S 2. Subdivisions 25 and  25-a of section 364-j of the social services
law are REPEALED.
  S 3. Subdivision 2-b of section 369-ee of the social services  law  is
REPEALED and a new subdivision 2-b is added to read as follows:
  2-B.  PAYMENT  FOR  PRESCRIPTION DRUGS. PAYMENT FOR PRESCRIPTION DRUGS
SHALL BE INCLUDED IN THE CAPITATED PAYMENTS  FOR  SERVICES  OR  SUPPLIES
PROVIDED UNDER A FAMILY HEALTH INSURANCE PLAN OR PROVIDED BY AN EMPLOYER
PARTNERSHIP  FOR  FAMILY  HEALTH  PLUS  PLAN AUTHORIZED BY SECTION THREE
HUNDRED SIXTY-NINE-FF OF THIS TITLE, PROVIDED THAT  THE  PLAN  PAYS  FOR
PRESCRIPTION  DRUGS  UNDER  A  QUALIFIED  PRESCRIPTION DRUG SYSTEM UNDER
SECTION THREE HUNDRED SIXTY-FIVE-I OF THIS ARTICLE.  EVERY  PRESCRIPTION
DRUG  ELIGIBLE  FOR  REIMBURSEMENT  UNDER  THIS  ARTICLE  PRESCRIBED  IN
RELATION TO A SERVICE PROVIDED BY THE PLAN SHALL BE EITHER  A  PREFERRED
OR  NON-PREFERRED  DRUG UNDER THE QUALIFIED PRESCRIPTION DRUG SYSTEM. IF
THE  PLAN  DOES  NOT  PAY  FOR  PRESCRIPTION  DRUGS  UNDER  A  QUALIFIED
PRESCRIPTION  DRUG  SYSTEM,  THEN PAYMENT FOR PRESCRIPTION DRUGS FOR THE
PLAN'S PATIENTS SHALL NOT BE INCLUDED IN SUCH  CAPITATION  PAYMENTS  AND
PRESCRIPTION  DRUGS  SHALL  BE  PROVIDED FOR THE APPROVED ORGANIZATION'S
PARTICIPANTS UNDER THE PREFERRED DRUG PROGRAM.
  S 4. Section 2511 of the public health law is amended by adding a  new
subdivision 22 to read as follows:
  22.  PAYMENT  FOR  PRESCRIPTION  DRUGS. PAYMENT FOR PRESCRIPTION DRUGS
SHALL BE INCLUDED IN THE PAYMENTS FOR SERVICES OR SUPPLIES  PROVIDED  BY
THE  APPROVED ORGANIZATION, PROVIDED THAT THE PLAN PAYS FOR PRESCRIPTION
DRUGS UNDER A QUALIFIED PRESCRIPTION DRUG  SYSTEM  UNDER  SECTION  THREE
HUNDRED SIXTY-FIVE-I OF THE SOCIAL SERVICES LAW. EVERY PRESCRIPTION DRUG
ELIGIBLE  FOR REIMBURSEMENT UNDER THIS ARTICLE PRESCRIBED IN RELATION TO

A. 2335--B                          6

A SERVICE PROVIDED BY  THE  APPROVED  ORGANIZATION  SHALL  BE  EITHER  A
PREFERRED  OR  NON-PREFERRED  DRUG UNDER THE QUALIFIED PRESCRIPTION DRUG
SYSTEM. IF THE APPROVED ORGANIZATION DOES NOT PAY FOR PRESCRIPTION DRUGS
UNDER   A   QUALIFIED   PRESCRIPTION   DRUG  SYSTEM,  THEN  PAYMENT  FOR
PRESCRIPTION DRUGS FOR THE APPROVED ORGANIZATION'S PATIENTS SHALL NOT BE
INCLUDED IN SUCH PAYMENTS AND PRESCRIPTION DRUGS SHALL BE  PROVIDED  FOR
THE  APPROVED  ORGANIZATION'S  PARTICIPANTS  UNDER  THE  PREFERRED  DRUG
PROGRAM.
  S 5. Subdivision 11 of section  270  of  the  public  health  law,  as
amended  by  section 2-a of part C of chapter 58 of the laws of 2008, is
amended to read as follows:
  11. "State public health plan" means the  medical  assistance  program
established  by  title eleven of article five of the social services law
(referred to in this article as "Medicaid"), the elderly  pharmaceutical
insurance  coverage program established by title three of article two of
the elder law (referred to in this article as "EPIC"), [and] the  family
health  plus  program established by section three hundred sixty-nine-ee
of the social services law [to the extent that section provides that the
program shall be subject to this article], AND THE CHILD  HEALTH  INSUR-
ANCE PROGRAM UNDER TITLE ONE-A OF ARTICLE TWENTY-FIVE OF THIS CHAPTER.
  S  6.  Section 272 of the public health law is amended by adding a new
subdivision 12 to read as follows:
  12. NO PRIOR AUTHORIZATION SHALL BE REQUIRED UNDER THE PREFERRED  DRUG
PROGRAM FOR:
  (A)  ATYPICAL ANTI-PSYCHOTICS; (B) ANTI-DEPRESSANTS; (C) ANTI-RETROVI-
RALS USED IN THE TREATMENT OF HIV/AIDS OR HEPATITIS C;  (D)  ANTI-REJEC-
TION  DRUGS  USED  IN THE TREATMENT OF ORGAN AND TISSUE TRANSPLANTS; AND
(E) ANY OTHER THERAPEUTIC CLASS FOR THE  TREATMENT  OF  MENTAL  ILLNESS,
HIV/AIDS  OR  HEPATITIS  C, RECOMMENDED BY THE BOARD AND APPROVED BY THE
COMMISSIONER UNDER THIS SECTION.
  S 7. This act shall take effect on the one hundred eightieth day after
it shall become a law; provided, however, that section two of  this  act
shall  take  effect  one  year  after  this  act shall become a law; and
provided further, that the amendments to section 369-ee  of  the  social
services  law  made  by  section  three of this act shall not affect the
repeal of such section and shall  be  deemed  to  expire  therewith  and
provided further, that the commissioner of health is immediately author-
ized  and  directed to take actions necessary to implement this act when
it takes effect.