The New York State Senate

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

                                 2969--A
                                                            R. R. 69

                       2019-2020 Regular Sessions

                          I N  A S S E M B L Y

                            January 28, 2019
                               ___________

Introduced  by  M.  of  A.  PEOPLES-STOKES, BARRETT, NIOU, ORTIZ, GALEF,
  ABINANTI,  LAVINE,  COLTON,  JEAN-PIERRE,   TAYLOR,   BYRNE,   WEPRIN,
  SEAWRIGHT, BARRON, MOSLEY, LUPARDO, ASHBY, REYES, L. ROSENTHAL, VANEL,
  STIRPE,  D. ROSENTHAL,  GRIFFIN,  JAFFEE, BUCHWALD, GOTTFRIED, D'URSO,
  MAGNARELLI, STERN, HUNTER, JACOBSON, LiPETRI, HEVESI,  OTIS,  CARROLL,
  STECK, SIMON, MIKULIN, PICHARDO, EPSTEIN, ROZIC, WALLACE, MALLIOTAKIS,
  BUTTENSCHON,  SCHMITT  --  Multi-Sponsored by -- M. of A. ENGLEBRIGHT,
  RA, THIELE -- read once and referred to the Committee on Insurance  --
  reported  and  referred  to  the  Committee  on  Codes -- reported and
  referred to the Committee on Rules -- amended on the special order  of
  third  reading,  ordered  reprinted as amended, retaining its place on
  the special order of third reading

AN ACT to amend the insurance law and the public health law, in relation
  to prescription drug formulary changes during a contract year

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

  Section  1.  The insurance law is amended by adding a new section 4909
to read as follows:
  § 4909. PRESCRIPTION DRUG FORMULARY CHANGES. (A) EXCEPT  AS  OTHERWISE
PROVIDED  IN  SUBSECTION  (C)  OF THIS SECTION, A HEALTH CARE PLAN SHALL
NOT:
  (I) REMOVE A PRESCRIPTION DRUG FROM A FORMULARY;
  (II) MOVE A PRESCRIPTION DRUG TO A  TIER  WITH  A  LARGER  DEDUCTIBLE,
COPAYMENT, OR COINSURANCE IF THE FORMULARY INCLUDES TWO OR MORE TIERS OF
BENEFITS  PROVIDING FOR DIFFERENT DEDUCTIBLES, COPAYMENTS OR COINSURANCE
APPLICABLE TO THE PRESCRIPTION DRUGS IN EACH TIER; OR
  (III) ADD UTILIZATION MANAGEMENT RESTRICTIONS TO A  PRESCRIPTION  DRUG
ON  A  FORMULARY, UNLESS SUCH CHANGES OCCUR AT THE TIME OF ENROLLMENT OR
ISSUANCE OF COVERAGE.
  (B) PROHIBITIONS PROVIDED IN SUBSECTION  (A)  OF  THIS  SECTION  SHALL
APPLY  BEGINNING  ON THE DATE ON WHICH OPEN ENROLLMENT BEGINS FOR A PLAN

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD04720-04-9

A. 2969--A                          2

YEAR AND THROUGH THE END OF THE PLAN YEAR TO WHICH SUCH OPEN  ENROLLMENT
PERIOD APPLIES.
  (C)  (I) A HEALTH CARE PLAN WITH A FORMULARY THAT INCLUDES TWO OR MORE
TIERS OF BENEFITS PROVIDING FOR  DIFFERENT  DEDUCTIBLES,  COPAYMENTS  OR
COINSURANCE  APPLICABLE  TO  PRESCRIPTION  DRUGS IN EACH TIER MAY MOVE A
PRESCRIPTION DRUG TO A TIER WITH A LARGER DEDUCTIBLE, COPAYMENT OR COIN-
SURANCE IF AN AB-RATED GENERIC EQUIVALENT OR INTERCHANGEABLE  BIOLOGICAL
PRODUCT FOR SUCH PRESCRIPTION DRUG IS ADDED TO THE FORMULARY AT THE SAME
TIME.
  (II)  A  HEALTH CARE PLAN MAY REMOVE A PRESCRIPTION DRUG FROM A FORMU-
LARY IF THE FEDERAL FOOD AND DRUG ADMINISTRATION  DETERMINES  THAT  SUCH
PRESCRIPTION  DRUG  SHOULD  BE  REMOVED  FROM  THE MARKET, INCLUDING NEW
UTILIZATION MANAGEMENT RESTRICTIONS ISSUED PURSUANT TO FEDERAL FOOD  AND
DRUG ADMINISTRATION SAFETY CONCERNS.
  (D)  A  HEALTH  CARE PLAN SHALL PROVIDE NOTICE TO POLICYHOLDERS OF THE
INTENT TO REMOVE A PRESCRIPTION DRUG FROM A FORMULARY OR  ALTER  DEDUCT-
IBLE,  COPAYMENT  OR COINSURANCE REQUIREMENTS IN THE UPCOMING PLAN YEAR,
THIRTY DAYS PRIOR TO THE OPEN ENROLLMENT PERIOD FOR THE CONSECUTIVE PLAN
YEAR. SUCH NOTICE OF IMPENDING FORMULARY AND  DEDUCTIBLE,  COPAYMENT  OR
COINSURANCE  CHANGES SHALL ALSO BE POSTED ON THE PLAN'S ONLINE FORMULARY
AND IN ANY PRESCRIPTION DRUG FINDER SYSTEM THAT THE PLAN PROVIDES TO THE
PUBLIC.
  (E) THE PROVISIONS OF THIS SECTION SHALL NOT SUPERSEDE THE TERMS OF  A
COLLECTIVE  BARGAINING  AGREEMENT, OR THE RIGHTS OF LABOR REPRESENTATION
GROUPS TO COLLECTIVELY BARGAIN CHANGES TO THE FORMULARIES.
  § 2. The public health law is amended by adding a new section 4909  to
read as follows:
  §  4909.  PRESCRIPTION  DRUG FORMULARY CHANGES. 1. EXCEPT AS OTHERWISE
PROVIDED IN SUBDIVISION THREE OF THIS SECTION, A HEALTH CARE PLAN  SHALL
NOT:
  (A) REMOVE A PRESCRIPTION DRUG FROM A FORMULARY;
  (B)  MOVE  A  PRESCRIPTION  DRUG  TO  A TIER WITH A LARGER DEDUCTIBLE,
COPAYMENT, OR COINSURANCE IF THE FORMULARY INCLUDES TWO OR MORE TIERS OF
BENEFITS PROVIDING FOR DIFFERENT DEDUCTIBLES, COPAYMENTS OR  COINSURANCE
APPLICABLE TO THE PRESCRIPTION DRUGS IN EACH TIER; OR
  (C)  ADD UTILIZATION MANAGEMENT RESTRICTIONS TO A PRESCRIPTION DRUG ON
A FORMULARY, UNLESS SUCH CHANGES OCCUR AT  THE  TIME  OF  ENROLLMENT  OR
ISSUANCE OF COVERAGE.
  2.  PROHIBITIONS  PROVIDED  IN  SUBDIVISION  ONE OF THIS SECTION SHALL
APPLY BEGINNING ON THE DATE ON WHICH OPEN ENROLLMENT BEGINS FOR  A  PLAN
YEAR  AND THROUGH THE END OF THE PLAN YEAR TO WHICH SUCH OPEN ENROLLMENT
PERIOD APPLIES.
  3. (A) A HEALTH CARE PLAN WITH A FORMULARY THAT INCLUDES TWO  OR  MORE
TIERS  OF  BENEFITS  PROVIDING  FOR DIFFERENT DEDUCTIBLES, COPAYMENTS OR
COINSURANCE APPLICABLE TO PRESCRIPTION DRUGS IN EACH  TIER  MAY  MOVE  A
PRESCRIPTION DRUG TO A TIER WITH A LARGER DEDUCTIBLE, COPAYMENT OR COIN-
SURANCE  IF AN AB-RATED GENERIC EQUIVALENT OR INTERCHANGEABLE BIOLOGICAL
PRODUCT FOR SUCH PRESCRIPTION DRUG IS ADDED TO THE FORMULARY AT THE SAME
TIME.
  (B) A HEALTH CARE PLAN MAY REMOVE A PRESCRIPTION DRUG FROM A FORMULARY
IF THE  FEDERAL  FOOD  AND  DRUG  ADMINISTRATION  DETERMINES  THAT  SUCH
PRESCRIPTION  DRUG  SHOULD  BE  REMOVED  FROM  THE MARKET, INCLUDING NEW
UTILIZATION MANAGEMENT RESTRICTIONS ISSUED PURSUANT TO FEDERAL FOOD  AND
DRUG ADMINISTRATION SAFETY CONCERNS.
  4.  A  HEALTH  CARE  PLAN SHALL PROVIDE NOTICE TO POLICYHOLDERS OF THE
INTENT TO REMOVE A PRESCRIPTION DRUG FROM A FORMULARY OR  ALTER  DEDUCT-

A. 2969--A                          3

IBLE,  COPAYMENT  OR COINSURANCE REQUIREMENTS IN THE UPCOMING PLAN YEAR,
THIRTY DAYS PRIOR TO THE OPEN ENROLLMENT PERIOD FOR THE CONSECUTIVE PLAN
YEAR. SUCH NOTICE OF IMPENDING FORMULARY AND  DEDUCTIBLE,  COPAYMENT  OR
COINSURANCE  CHANGES SHALL ALSO BE POSTED ON THE PLAN'S ONLINE FORMULARY
AND IN ANY PRESCRIPTION DRUG FINDER SYSTEM THAT THE PLAN PROVIDES TO THE
PUBLIC.
  5. THE PROVISIONS OF THIS SECTION SHALL NOT SUPERSEDE THE TERMS  OF  A
COLLECTIVE  BARGAINING  AGREEMENT, OR THE RIGHTS OF LABOR REPRESENTATION
GROUPS TO COLLECTIVELY BARGAIN CHANGES TO THE FORMULARIES.
  § 3. This act shall take effect on the sixtieth  day  after  it  shall
have  become  a  law.    Effective  immediately, the addition, amendment
and/or repeal of any rule or regulation necessary for the implementation
of this act on  its  effective  date  are  authorized  to  be  made  and
completed on or before such effective date.