S T A T E O F N E W Y O R K
________________________________________________________________________
6605
2021-2022 Regular Sessions
I N A S S E M B L Y
March 19, 2021
___________
Introduced by M. of A. ABINANTI -- read once and referred to the Commit-
tee on Health
AN ACT to amend the social services law, in relation to the pricing of
single source brand-name maintenance medication for which there is no
National Average Drug Acquisition Cost pricing
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (b) of subdivision 9 of section 367-a of the
social services law, as amended by section 3 of part C of chapter 58 of
the laws of 2004, subparagraphs (i) and (ii) as amended by section 7 of
part D of chapter 57 of the laws of 2017 and subparagraph (iii) as added
by section 29 of part E of chapter 63 of the laws of 2005, is amended to
read as follows:
(b) for drugs dispensed by pharmacies:
(i) (A) if the drug dispensed is a generic prescription drug, the
lower of: (1) an amount equal to the national average drug acquisition
cost set by the federal centers for medicare and medicaid services for
the drug, if any, or if such amount if not available, the wholesale
acquisition cost of the drug based on the package size dispensed from,
as reported by the prescription drug pricing service used by the depart-
ment, less seventeen and one-half percent thereof; (2) the federal upper
limit, if any, established by the federal centers for medicare and medi-
caid services; (3) the state maximum acquisition cost, if any, estab-
lished pursuant to paragraph (e) of this subdivision; or (4) the
dispensing pharmacy's usual and customary price charged to the general
public; (B) if the drug dispensed is available without a prescription as
required by section sixty-eight hundred ten of the education law but is
reimbursed as an item of medical assistance pursuant to paragraph (a) of
subdivision four of section three hundred sixty-five-a of this title,
the lower of (1) an amount equal to the national average drug acquisi-
tion cost set by the federal centers for medicare and medicaid services
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09781-01-1
A. 6605 2
for the drug, if any, or if such amount is not available, the wholesale
acquisition cost of the drug based on the package size dispensed from,
as reported by the prescription drug pricing service used by the depart-
ment, (2) the federal upper limit, if any, established by the federal
centers for medicare and medicaid services; (3) the state maximum acqui-
sition cost if any, established pursuant to paragraph (e) of this subdi-
vision; or (4) the dispensing pharmacy's usual and customary price
charged to the general public;
(ii) if the drug dispensed is a brand-name prescription drug, the
lower of:
(A) an amount equal to the national average drug acquisition cost set
by the federal centers for medicare and medicaid services for the drug,
if any, or if such amount is not available, the wholesale acquisition
cost of the drug based on the package size dispensed from, as reported
by the prescription drug pricing service used by the department, less
three and three-tenths percent thereof; or (B) the dispensing pharmacy's
usual and customary price charged to the general public; [and]
(iii) notwithstanding subparagraphs (i) and (ii) of this paragraph and
paragraphs (d) and (e) of this subdivision, if the drug dispensed is a
drug that has been purchased from a manufacturer by a covered entity
pursuant to section 340B of the federal public health service act (42
USCA § 256b), the actual amount paid by such covered entity pursuant to
such section, plus the reasonable administrative costs, as determined by
the commissioner, incurred by the covered entity or by an authorized
contract pharmacy in connection with the purchase and dispensing of such
drug and the tracking of such transactions. For purposes of this subpar-
agraph, a "covered entity" is an entity that meets the requirements of
paragraph four of subsection (a) of such section, that elects to partic-
ipate in the program established by such section, and that causes claims
for payment for drugs covered by this subparagraph to be submitted to
the medical assistance program, either directly or through an authorized
contract pharmacy. No medical assistance payments may be made to a
covered entity or to an authorized contract pharmacy of a covered entity
for drugs that are eligible for purchase under the section 340B program
and are dispensed on an outpatient basis to patients of the covered
entity, other than under the provisions of this subparagraph. Pharmacies
submitting claims for reimbursement of drugs purchased pursuant to
section 340B of the public health service act shall notify the depart-
ment that the claim is eligible for purchase under the 340B program,
consistent with claiming instructions issued by the department to iden-
tify such claims; AND
(IV) IF THE DRUG IS A SINGLE SOURCE BRAND-NAME MAINTENANCE MEDICATION
FOR WHICH THERE IS NO NATIONAL AVERAGE DRUG ACQUISITION COST PRICING, IT
SHALL BE WHOLESALE ACQUISITION COST.
§ 2. Paragraph (b) of subdivision 9 of section 367-a of the social
services law, as added by chapter 170 of the laws of 1994, is amended to
read as follows:
(b) for drugs dispensed by pharmacies:
(i) if the drug dispensed is a multiple source prescription drug for
which an upper limit has been set by the federal health care financing
administration, an amount equal to the specific upper limit set by such
federal agency for the multiple source prescription drug[, and];
(ii) if the drug dispensed is a multiple source prescription drug or a
brand-name prescription drug for which no specific upper limit has been
set by such federal agency, the lower of the estimated acquisition cost
of such drug to pharmacies, or the dispensing pharmacy's usual and
A. 6605 3
customary price charged to the general public. Estimated acquisition
cost means the average wholesale price of a prescription drug based upon
the package size dispensed from, as reported by the prescription drug
pricing service used by the department, less ten percent thereof, and
updated monthly by the department; AND
(III) IF THE DRUG IS A SINGLE SOURCE BRAND-NAME MAINTENANCE MEDICATION
FOR WHICH THERE IS NO NATIONAL AVERAGE DRUG ACQUISITION COST PRICING, IT
SHALL BE WHOLESALE ACQUISITION COST.
§ 3. This act shall take effect on the ninetieth day after it shall
have become a law; provided that the amendments to paragraph (b) of
subdivision 9 of section 367-a of the social services law made by
section one of this act shall be subject to the expiration and rever-
sion of such subdivision pursuant to section 4 of chapter 19 of the laws
of 1998, as amended, when upon such date the provisions of section two
of this act shall take effect. 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 date.