S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  7200--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              April 29, 2021
                                ___________
 
 Introduced  by  M.  of  A.  GOTTFRIED,  STECK, McDONALD -- read once and
   referred to the Committee on Health -- recommitted to the Committee on
   Ways and Means in accordance with Assembly Rule 3, sec. 2 -- committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee

 AN ACT to amend the social services law,  in  relation  to  prescription
   drugs  eligible for Medicaid coverage; to amend the public health law,
   in relation to prior authorization under the preferred  drug  program;
   to  repeal certain provisions of part FFF of chapter 56 of the laws of
   2020 directing the department of health to remove the pharmacy benefit
   from the managed care benefit  package,  relating  to  restoring  such
   benefits; and to repeal certain provisions of the social services law,
   relating  to  coverage  for  certain prescription drugs under Medicaid
   managed care programs
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative findings. This legislature finds that the costs
 of  many prescription drugs in the market have been escalating unreason-
 ably. The preferred drug program and the clinical  drug  review  program
 under  the  public  health law provide effective mechanisms for assuring
 access to quality, effective and safe drugs to  patients  at  reasonable
 cost.  Providing  prescription  drugs  to  Medicaid  managed health care
 provider participants through these programs will maximize the  Medicaid
 program's  ability  to  negotiate  more  substantial  rebates  with drug
 manufacturers (effectively, lower  prices),  while  protecting  Medicaid
 managed care provider participants.
   § 2. Sections 1 and 1-a of part FFF of chapter 56 of the laws of 2020,
 relating to prescription drugs under the Medicaid program, are REPEALED.
   §  3. The social services law is amended by adding a new section 365-i
 to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11099-02-2
 A. 7200--A                          2
              

 
   § 365-I. PRESCRIPTION DRUGS IN MEDICAID. 1. THE DEFINITIONS  OF  TERMS
 IN  SECTION  TWO HUNDRED SEVENTY OF THE PUBLIC HEALTH LAW SHALL APPLY TO
 THIS SECTION.   AS USED IN THIS  SECTION,  UNLESS  THE  CONTEXT  CLEARLY
 REQUIRES OTHERWISE, "MANAGED CARE PROVIDER" MEANS A MANAGED CARE PROVID-
 ER  UNDER  SECTION  THREE  HUNDRED  SIXTY-FOUR-J  OF  THIS ARTICLE, OR A
 MANAGED LONG TERM CARE PLAN UNDER SECTION FORTY-FOUR HUNDRED THREE-F  OF
 THE PUBLIC HEALTH LAW.
   2.  PRESCRIPTION  DRUGS  ELIGIBLE FOR REIMBURSEMENT UNDER THIS ARTICLE
 SHALL BE PROVIDED AND PAID FOR UNDER THE PREFERRED DRUG PROGRAM AND  THE
 CLINICAL  DRUG  REVIEW  PROGRAM  UNDER TITLE ONE OF ARTICLE TWO-A OF THE
 PUBLIC HEALTH LAW, EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION THREE  OF
 THIS SECTION.
   3.  THIS SUBDIVISION APPLIES WHERE THE ELIGIBLE INDIVIDUAL IS ENROLLED
 IN A MANAGED CARE PROVIDER AND A PRESCRIPTION FOR THE ELIGIBLE  INDIVID-
 UAL  IS MADE UNDER SECTION 340B OF THE FEDERAL PUBLIC HEALTH SERVICE ACT
 (THE "340B PROGRAM"). THE MANAGED CARE PROVIDER SHALL PAY FOR THE  DRUGS
 UNDER  THE  340B  PROGRAM. HOWEVER, THE PRESCRIPTION SHALL BE SUBJECT TO
 SECTION TWO HUNDRED SEVENTY-THREE (PREFERRED DRUG PROGRAM PRIOR AUTHORI-
 ZATION) AND SECTION  TWO  HUNDRED  SEVENTY-FOUR  (CLINICAL  DRUG  REVIEW
 PROGRAM) OF THE PUBLIC HEALTH LAW.
   4.  THE  MANAGED  CARE  PROVIDER  SHALL  ACCOUNT  TO AND REIMBURSE THE
 DEPARTMENT FOR THE NET COST TO THE  DEPARTMENT  FOR  PRESCRIPTION  DRUGS
 PROVIDED  TO  ELIGIBLE INDIVIDUALS WHO RECEIVE MEDICAL SERVICES FROM THE
 MANAGED CARE PROVIDER.  CAPITATION PAYMENTS BY THE  DEPARTMENT  TO  SUCH
 MANAGED  CARE PROVIDER SHALL INCLUDE A COMPONENT FOR REIMBURSEMENTS PAID
 UNDER THIS SUBDIVISION.
   § 4. Paragraph (b) of subdivision 3  of  section  273  of  the  public
 health  law,  as added by section 10 of part C of chapter 58 of the laws
 of 2005, is amended to read as follows:
   (b) In the event that the patient does not meet the criteria in  para-
 graph  (a)  of  this  subdivision, the prescriber may provide additional
 information to the program to justify the use  of  a  prescription  drug
 that  is  not  on  the  preferred drug list. The program shall provide a
 reasonable opportunity for a prescriber to reasonably present his or her
 justification of prior authorization. If, after  consultation  with  the
 program, the prescriber, in his or her reasonable professional judgment,
 determines  that  the  use  of  a  prescription  drug that is not on the
 preferred drug list is warranted, the prescriber's  determination  shall
 be  final.   HOWEVER, THE PRESCRIBER'S DETERMINATION SHALL NOT BE FINAL:
 (I) WHERE THE PREFERRED DRUG IS A GENERIC DRUG SUBJECT  TO  SUBPARAGRAPH
 (I)  OF  PARAGRAPH  (A-1)  OF  SUBDIVISION FOUR OF SECTION THREE HUNDRED
 SIXTY-FIVE-A OF THE  SOCIAL  SERVICES  LAW  (MANDATORY  GENERIC  SUBSTI-
 TUTION),  AND EVEN IF THE PRESCRIBER HAS INDICATED THAT THE PRESCRIPTION
 SHALL BE DISPENSED AS WRITTEN; OR (II) IF IT IS FOR THE USE  OF  A  DRUG
 THAT IS NOT CONSISTENT WITH FOOD AND DRUG ADMINISTRATION-APPROVED LABEL-
 ING  OR  SUPPORTED BY ONE OR MORE OFFICIAL COMPENDIA REFERENCES, INCLUD-
 ING, BUT NOT LIMITED TO, THE AMERICAN HOSPITAL FORMULARY SERVICE (AHFS),
 THE DRUGDEX DRUG INFORMATION SYSTEM AND THE UNITED STATES PHARMACOPEIA.
   § 5. Subdivisions 25, 25-a, 26 and 26-b, and paragraph (u) of subdivi-
 sion 4 of section 364-j of the social services law are REPEALED.
   § 6. Severability. If any provision of this act, or any application of
 any provision of this act, is held to be invalid, or to  violate  or  be
 inconsistent  with  any federal law or regulation, that shall not affect
 the validity or effectiveness of any other provision of this act, or  of
 any  other  application of any provision of this act, which can be given
 A. 7200--A                          3
 
 effect without that provision or  application;  and  to  that  end,  the
 provisions and applications of this act are severable.
   §  7. This act shall take effect immediately, except that sections one
 through five of this act shall take effect on the one hundred  eightieth
 day  after  they  shall  have become a law.   Effective immediately, the
 commissioner of health shall make regulations  and  take  other  actions
 reasonably necessary to implement this act when it takes effect.