The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5911
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 24, 2023
                                ___________
 
 Introduced  by M. of A. PAULIN, BRONSON -- read once and referred to the
   Committee on Health
 
 AN ACT to amend the social services law and the public  health  law,  in
   relation  to  pharmacy services provided by managed care providers and
   to  repeal sections 1 and 1-a of part FFF of chapter 56 of the laws of
   2020 relating to directing the department  of  health  to  remove  the
   pharmacy  benefit from the managed care benefit package and to provide
   the pharmacy benefit under the fee for service  program,  in  relation
   thereto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Sections 1 and 1-a of part FFF of chapter 56 of the laws of
 2020 relating to directing the department of health to remove the  phar-
 macy  benefit  from  the managed care benefit package and to provide the
 pharmacy benefit under the fee for service program, are REPEALED.
   § 2. Subdivision 4 of section 364-j of  the  social  services  law  is
 amended  by adding four new paragraphs (x), (y), (z) and (aa) to read as
 follows:
   (X) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, MANAGED CARE
 PROVIDERS UNDER THE MEDICAL ASSISTANCE PROGRAM AND ANY PHARMACY  BENEFIT
 MANAGERS  ACTING  ON  THEIR  BEHALF,  AS  DEFINED IN SECTION TWO HUNDRED
 EIGHTY-A OF THE PUBLIC HEALTH LAW, SHALL BE REQUIRED TO REIMBURSE RETAIL
 PHARMACIES FOR EACH OUTPATIENT DRUG, AT THE NATIONAL AVERAGE DRUG ACQUI-
 SITION COST (NADAC), OR IF NADAC PRICING  IS  UNAVAILABLE  FOR  A  DRUG,
 REIMBURSEMENT SHALL BE PURSUANT TO THE CURRENT BENCHMARKS UNDER FEE-FOR-
 SERVICE, PLUS A TIERED PROFESSIONAL DISPENSING FEE BASED ON PRESCRIPTION
 CLAIMS  VOLUME  TO  BE DETERMINED BY THE COMMISSIONER.  IN DETERMINING A
 PROFESSIONAL DISPENSING FEE, THE COMMISSIONER SHALL ISSUE A SURVEY  THAT
 COLLECTS  CLAIMS VOLUMES FROM ENROLLED PHARMACIES, AND OTHER SUCH INFOR-
 MATION AS THE COMMISSIONER MAY DEEM NECESSARY TO  WEIGH  REGIONAL  VARI-
 ANCES  AND OTHER FACTORS SIGNIFICANTLY IMPACTING MARKETS FROM THE PREVI-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09373-03-3

 A. 5911                             2
 
 OUS TWELVE-MONTH PERIOD, TO DETERMINE  THE  APPROPRIATE  DISPENSING  FEE
 REIMBURSEMENT.   THE DISPENSING FEE DETERMINED BY THE COMMISSIONER SHALL
 BE IN AN AMOUNT OF AT LEAST EIGHT DOLLARS AND FIFTY CENTS.
   (Y)  (I)  NOTWITHSTANDING  ANY  PROVISION  OF  LAW  TO THE CONTRARY, A
 MANAGED CARE PROVIDER OR PHARMACY BENEFIT MANAGER ACTING ON ITS  BEHALF,
 SHALL  NOT  DENY  ANY  RETAIL PHARMACY THE OPPORTUNITY TO PARTICIPATE IN
 ANOTHER  PROVIDER'S  PHARMACY  NETWORK  UNDER  THE  MEDICAL   ASSISTANCE
 PROGRAM, PROVIDED THAT:
   (A) SUCH RETAIL PHARMACY AGREES TO THE SAME REIMBURSEMENT AMOUNT;
   (B)  IS ABLE TO FILL AND DISPENSE COMMONLY DISPENSED PRESCRIPTIONS AND
 OVER-THE-COUNTER MEDICATIONS IN A MANNER CONSISTENT WITH MEDICAL ASSIST-
 ANCE PROGRAM GUIDANCE AND STATUTE FOR THOSE PATIENTS AND POPULATION  THE
 PHARMACY SERVES ENROLLED IN THE MEDICAL ASSISTANCE PROGRAM;
   (II)  NOTHING  IN THIS PARAGRAPH SHALL REQUIRE A MANAGED CARE PROVIDER
 OR PHARMACY BENEFIT MANAGER TO CONTRACT WITH A RETAIL PHARMACY OR  PHAR-
 MACIES  THAT FAIL TO MEET UNIVERSALLY ACCEPTED PROFESSIONAL STANDARDS OF
 PHARMACY PRACTICE. FURTHER, NOTHING IN THIS PARAGRAPH SHALL BE CONSTRUED
 AS LIMITING THE ABILITY OF MANAGED CARE PROVIDERS  OR  PHARMACY  BENEFIT
 MANAGERS  TO  REMOVE  PHARMACIES  FROM  THEIR  NETWORK, OR TO DECLINE TO
 CONTRACT WITH PHARMACIES IN CASES OF FRAUD, WASTE, ABUSE, OR  AS  OTHER-
 WISE AUTHORIZED BY LAW.
   (Z)  (I) A MANAGED CARE PROVIDER OR PHARMACY BENEFIT MANAGER ACTING ON
 ITS BEHALF SHALL BE REQUIRED TO REIMBURSE 340B COVERED ENTITY PROVIDERS,
 WHETHER DIRECTLY OR THROUGH ARRANGEMENTS WITH THEIR CONTRACTUAL  PHARMA-
 CIES,  FOR  OUTPATIENT DRUGS DISPENSED UNDER SECTION 340B OF THE FEDERAL
 PUBLIC HEALTH SERVICE ACT (42 USCA § 256B), AT NADAC, OR IF NADAC  PRIC-
 ING  IS  UNAVAILABLE  FOR A DRUG, REIMBURSEMENT SHALL BE PURSUANT TO THE
 CURRENT BENCHMARKS UNDER FEE-FOR-SERVICE, PLUS A PROFESSIONAL DISPENSING
 FEE AS DETERMINED BY THE COMMISSIONER PURSUANT TO PARAGRAPH (X) OF  THIS
 SUBDIVISION.
   (II)  NOTWITHSTANDING  ANY  PROVISION OF LAW TO THE CONTRARY, RATES OF
 PAYMENT BETWEEN COVERED ENTITIES UNDER SECTION 340B OF THE PUBLIC HEALTH
 SERVICE ACT AND CONTRACT PHARMACIES THAT OBTAIN AND DISPENSE 340B  DRUGS
 ON BEHALF OF THE COVERED ENTITY, SHALL COMPRISE A FEE SCHEDULE, BASED ON
 FAIR MARKET VALUE PRINCIPLES AND SHALL NOT BE A PERCENTAGE OF EITHER THE
 CLAIM'S TOTAL REIMBURSEMENT OR NET MARGIN. THE COMMISSIONER SHALL EVALU-
 ATE THE ADEQUACY OF SUCH FEE SCHEDULE NO LESS THAN EVERY TWO YEARS.
   (AA) NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY, IN ORDER TO
 ALIGN  MANAGED  CARE  PROVIDER DRUG FORMULARIES TO REDUCE COMPLEXITY FOR
 BENEFICIARIES OF MEDICAL ASSISTANCE, AND TO MAXIMIZE  AVAILABLE  FEDERAL
 STATUTORY  DRUG  REBATES  FOR  THE STATE, MANAGED CARE PROVIDERS AND ANY
 PHARMACY BENEFIT MANAGERS ACTING ON THEIR BEHALF, SHALL BE  REQUIRED  TO
 USE  THE FEE-FOR-SERVICE PREFERRED DRUG LIST WHEN DEVELOPING A FORMULARY
 OR PREFERRED DRUG LIST OF OUTPATIENTS DRUGS FOR BENEFICIARIES OF MEDICAL
 ASSISTANCE. IN THE INTERESTS OF THE CREATION OF A HIGH  QUALITY  UNIFORM
 FORMULARY, AND NOTWITHSTANDING ANY PROVISION OF LAW TO THE CONTRARY: THE
 COMMISSIONER  SHALL CONVENE A COMMITTEE COMPRISED OF THE PHARMACY DIREC-
 TORS OF THE STATE'S CURRENTLY PARTICIPATING MANAGED  CARE  PROVIDERS  TO
 ADVISE  IN  THE  CREATION  AND  STEWARDSHIP  OF  ANY  SUCH  FORMULARY OR
 PREFERRED DRUG LIST.
   § 3. Section 280-a of the public health law is amended by adding a new
 subdivision 6 to read as follows:
   6. MEDICAL ASSISTANCE DELIVERY OPTION. NOTWITHSTANDING  ANY  PROVISION
 OF  LAW  TO  THE  CONTRARY,  NO PHARMACY BENEFIT MANAGER SHALL LIMIT THE
 OPTION FOR AN INDIVIDUAL EXERCISING THEIR  BENEFITS  UNDER  THE  STATE'S
 MEDICAL  ASSISTANCE  PROGRAM  RECEIVING PRESCRIPTION OR OVER-THE-COUNTER
 A. 5911                             3
 
 MEDICATIONS TO RECEIVE SUCH MEDICATIONS FROM THEIR LOCAL, NON-MAIL ORDER
 PHARMACY OF CHOICE VIA DELIVERY  INCLUDING  IN-PERSON  DELIVERY,  UNITED
 STATES POSTAL SERVICE OR OTHER MAIL OR COURIER SERVICE. NO RESTRICTIONS,
 PROHIBITIONS,  OR PRIOR AUTHORIZATION REQUIREMENTS SHALL BE BASED ON THE
 INDIVIDUAL'S CHOICE IN DELIVERY TYPE OR DISTANCE FROM A PHARMACY.
   § 4. This act shall take effect immediately; provided,  however,  that
 sections  two and three of this act shall be deemed to have been in full
 force and effect on and after April 1, 2023.