The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4111
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 2, 2021
                                ___________
 
 Introduced  by Sens. BRESLIN, ADDABBO, BENJAMIN, BIAGGI, BROOKS, COMRIE,
   GAUGHRAN,  GIANARIS,  GRIFFO,  HELMING,  HOYLMAN,  JORDAN,   KAMINSKY,
   KAPLAN,  KENNEDY,  KRUEGER, LANZA, MAY, MAYER, MYRIE, PARKER, RITCHIE,
   RIVERA, SALAZAR, SANDERS, SAVINO, SEPULVEDA, SERINO, SERRANO, SKOUFIS,
   THOMAS -- read twice and ordered  printed,  and  when  printed  to  be
   committed to the Committee on Insurance
 
 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
 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-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD08236-01-1

 S. 4111                             2
 
 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.
   (III)  A  HEALTH  CARE PLAN WITH A FORMULARY THAT INCLUDES TWO OR MORE
 TIERS OF BENEFITS  PROVIDING  FOR  DIFFERENT  COPAYMENTS  APPLICABLE  TO
 PRESCRIPTION  DRUGS MAY MOVE A PRESCRIPTION DRUG TO A TIER WITH A LARGER
 COPAYMENT DURING THE PLAN YEAR, PROVIDED THE CHANGE IS NOT APPLICABLE TO
 AN INSURED WHO IS ALREADY RECEIVING SUCH PRESCRIPTION DRUG OR  HAS  BEEN
 DIAGNOSED WITH OR PRESENTED WITH A CONDITION ON OR PRIOR TO THE START OF
 THE  PLAN  YEAR  WHICH  IS  TREATED  BY  SUCH  PRESCRIPTION DRUG OR IS A
 PRESCRIPTION DRUG THAT IS OR WOULD BE PART OF  THE  INSURED'S  TREATMENT
 REGIMEN FOR SUCH CONDITION.
   (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

 S. 4111                             3
 
 UTILIZATION MANAGEMENT RESTRICTIONS ISSUED PURSUANT TO FEDERAL FOOD  AND
 DRUG ADMINISTRATION SAFETY CONCERNS.
   (C)  A  HEALTH  CARE  PLAN  WITH A FORMULARY THAT INCLUDES TWO OR MORE
 TIERS OF BENEFITS  PROVIDING  FOR  DIFFERENT  COPAYMENTS  APPLICABLE  TO
 PRESCRIPTION  DRUGS MAY MOVE A PRESCRIPTION DRUG TO A TIER WITH A LARGER
 COPAYMENT DURING THE PLAN YEAR, PROVIDED THE CHANGE IS NOT APPLICABLE TO
 AN INSURED WHO IS ALREADY RECEIVING SUCH PRESCRIPTION DRUG OR  HAS  BEEN
 DIAGNOSED WITH OR PRESENTED WITH A CONDITION ON OR PRIOR TO THE START OF
 THE  PLAN  YEAR  WHICH  IS  TREATED  BY  SUCH  PRESCRIPTION DRUG OR IS A
 PRESCRIPTION DRUG THAT IS OR WOULD BE PART OF  THE  INSURED'S  TREATMENT
 REGIMEN FOR SUCH CONDITION.
   4.  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.
   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 implantation of this
 act on its effective date are authorized to be made on  or  before  such
 effective date.