S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7767
 
                             I N  S E N A T E
 
                             January 11, 2022
                                ___________
 
 Introduced  by  Sen. BRESLIN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the insurance law,  in  relation  to  prescription  drug
   formulary  changes during a  plan year; to amend a chapter of the laws
   of 2021 amending the insurance law and the public health law  relating
   to  prescription  drug  formulary  changes  during a contract year, as
   proposed in legislative bills  numbers  S.  4111  and  A.    4668,  in
   relation  to  the effectiveness thereof; and to repeal section 4909 of
   the insurance law and section 4909 of the public health  law  relating
   thereto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 4909 of the insurance law, as added by a chapter of
 the laws of 2021 amending the insurance law and the  public  health  law
 relating  to prescription drug formulary changes during a contract year,
 as proposed in legislative  bills  numbers  S.  4111  and  A.  4668,  is
 REPEALED.
   §  2.  Section 4909 of the public health law, as added by a chapter of
 the laws of 2021 amending the insurance law and the  public  health  law
 relating  to prescription drug formulary changes during a contract year,
 as proposed in legislative  bills  numbers  S.  4111  and  A.  4668,  is
 REPEALED.
   §  3.  Section  3242  of  the insurance law is amended by adding a new
 subsection (c) to read as follows:
   (C)(1) EXCEPT  AS  OTHERWISE  PROVIDED  IN  PARAGRAPH  THREE  OF  THIS
 SUBSECTION, AN INSURER 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,  ISSU-
 ANCE OR RENEWAL OF COVERAGE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08236-02-2
 S. 7767                             2
 
   (2)  PROHIBITIONS  PROVIDED  IN PARAGRAPH ONE OF THIS SUBSECTION SHALL
 APPLY BEGINNING ON THE DATE ON WHICH A PLAN YEAR BEGINS AND THROUGH  THE
 END OF SUCH PLAN YEAR.
   (3) (A) AN INSURER 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 COINSURANCE IF AN
 AB-RATED GENERIC EQUIVALENT OR INTERCHANGEABLE  BIOLOGICAL  PRODUCT  FOR
 SUCH PRESCRIPTION DRUG IS ADDED TO THE FORMULARY AT THE SAME TIME.
   (B)  AN INSURER 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  ADMIN-
 ISTRATION SAFETY CONCERNS.
   (C)  AN  INSURER  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 THAT  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) AN INSURER SHALL PROVIDE NOTICE  TO  INSUREDS  OF  THE  INTENT  TO
 REMOVE  A PRESCRIPTION DRUG FROM A FORMULARY OR ALTER DEDUCTIBLE, COPAY-
 MENT OR COINSURANCE REQUIREMENTS IN THE UPCOMING PLAN YEAR, NINETY  DAYS
 PRIOR  TO THE START OF THE PLAN YEAR. SUCH NOTICE OF IMPENDING FORMULARY
 AND DEDUCTIBLE, COPAYMENT OR COINSURANCE CHANGES SHALL ALSO BE POSTED ON
 THE INSURER'S ONLINE FORMULARY  AND  IN  ANY  PRESCRIPTION  DRUG  FINDER
 SYSTEM THAT THE INSURER PROVIDES TO THE PUBLIC.
   (5) THE PROVISIONS OF THIS SUBSECTION SHALL NOT SUPERSEDE THE TERMS OF
 A COLLECTIVE BARGAINING AGREEMENT, OR THE RIGHTS OF LABOR REPRESENTATION
 GROUPS TO COLLECTIVELY BARGAIN CHANGES TO THE FORMULARIES.
   §  4.  Section  4329  of  the insurance law is amended by adding a new
 subsection (c) to read as follows:
   (C) (1) EXCEPT AS  OTHERWISE  PROVIDED  IN  PARAGRAPH  THREE  OF  THIS
 SUBSECTION, A CORPORATION 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,  ISSU-
 ANCE OR RENEWAL OF COVERAGE.
   (2)  PROHIBITIONS  PROVIDED  IN PARAGRAPH ONE OF THIS SUBSECTION SHALL
 APPLY BEGINNING ON THE DATE ON WHICH A PLAN YEAR BEGINS AND THROUGH  THE
 END OF SUCH PLAN YEAR.
   (3) (A) A CORPORATION WITH A FORMULARY THAT INCLUDES TWO OR MORE TIERS
 OF  BENEFITS  PROVIDING FOR DIFFERENT DEDUCTIBLES, COPAYMENTS OR COINSU-
 RANCE  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.
 S. 7767                             3
 
   (B) A CORPORATION 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.
   (C)  A CORPORATION 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 THAT  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 CORPORATION SHALL PROVIDE NOTICE TO INSUREDS OF  THE  INTENT  TO
 REMOVE  A PRESCRIPTION DRUG FROM A FORMULARY OR ALTER DEDUCTIBLE, COPAY-
 MENT OR COINSURANCE REQUIREMENTS IN THE UPCOMING PLAN YEAR, NINETY  DAYS
 PRIOR  TO THE START OF THE PLAN YEAR. SUCH NOTICE OF IMPENDING FORMULARY
 AND DEDUCTIBLE, COPAYMENT OR COINSURANCE CHANGES SHALL ALSO BE POSTED ON
 THE CORPORATION'S ONLINE FORMULARY AND IN ANY PRESCRIPTION  DRUG  FINDER
 SYSTEM THAT THE CORPORATION PROVIDES TO THE PUBLIC.
   (5) THE PROVISIONS OF THIS SUBSECTION SHALL NOT SUPERSEDE THE TERMS OF
 A COLLECTIVE BARGAINING AGREEMENT, OR THE RIGHTS OF LABOR REPRESENTATION
 GROUPS TO COLLECTIVELY BARGAIN CHANGES TO THE FORMULARIES.
   § 5. Section 3 of a chapter of the laws of 2021 amending the insurance
 law  and  the  public health law relating to prescription drug formulary
 changes during a contract year, as proposed in legislative bills numbers
 S. 4111 and A. 4668, is amended to read as follows:
   § 3. This act shall take effect on [the sixtieth day  after  it  shall
 have  become  a law] JANUARY 1, 2023 AND SHALL APPLY TO ALL POLICIES AND
 CONTRACTS ISSUED, RENEWED, MODIFIED, ALTERED OR AMENDED ON OR AFTER SUCH
 DATE. Effective immediately, the addition, amendment  and/or  repeal  of
 any  rule  or regulation necessary for the [implantation] IMPLEMENTATION
 of this act on its effective date are authorized to be made on or before
 such effective date.
   § 6. This act shall take effect immediately; provided,  however,  that
 sections  one,  two, three and four of this act shall take effect on the
 same date and in the same manner as a chapter of the laws of 2021 amend-
 ing the insurance law and the public health law relating to prescription
 drug formulary changes during a contract year, as proposed  in  legisla-
 tive bills numbers S. 4111 and A. 4668, takes effect.