Senate Bill S9497

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9497
 
                             I N  S E N A T E
 
                              March 18, 2026
                                ___________
 
 Introduced by Sen. FERNANDEZ -- read twice and ordered printed, and when
   printed to be committed to the Committee on Insurance
 
 AN  ACT  to  amend  the insurance law, in relation to substituting brand
   name prescription drugs in the case of a drug shortage
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  Section  3242 of the insurance law is amended by adding a
 new subsection (d) to read as follows:
   (D) (1) AS USED IN THIS SUBSECTION:
   (A) "ELIGIBLE PRESCRIPTION DRUG" MEANS A  PRESCRIPTION  DRUG  APPROVED
 UNDER 21 U.S.C. 355(C) THAT IS NOT UNDER PATENT.
   (B) "GENERIC DRUG" MEANS A DRUG THAT IS APPROVED PURSUANT TO AN APPLI-
 CATION REFERENCING AN ELIGIBLE PRESCRIPTION DRUG THAT IS SUBMITTED UNDER
 SUBSECTION  (J)  OF  SECTION 505 OF THE FEDERAL FOOD, DRUG, AND COSMETIC
 ACT, 21 U.S.C. 355.
   (C) "SUPPLY ISSUE" MEANS A DRUG SHORTAGE OR MEANINGFUL  DISRUPTION  AS
 DEFINED IN 21 U.S.C. 356(C).
   (2)  IN  THE  EVENT  AN AB-RATED GENERIC EQUIVALENT OR INTERCHANGEABLE
 BIOLOGICAL PRODUCT FOR AN ELIGIBLE PRESCRIPTION DRUG IS  COVERED  IN  AN
 INSURER'S  FORMULARY AND SUCH GENERIC DRUG EQUIVALENT IS UNAVAILABLE DUE
 TO A SUPPLY ISSUE WHICH HAS BEEN RECOGNIZED BY THE FEDERAL FOOD AND DRUG
 ADMINISTRATION PURSUANT TO 21 U.S.C.  356E  AND  THE  DOSAGE  CANNOT  BE
 ADJUSTED,  AN INSURER THAT DELIVERS OR ISSUES FOR DELIVERY IN THIS STATE
 A POLICY THAT PROVIDES COVERAGE FOR  PRESCRIPTION  DRUGS  SHALL  PROVIDE
 COVERAGE  FOR  A BRAND NAME ELIGIBLE PRESCRIPTION DRUG TO AN INSURED WHO
 IS ALREADY RECEIVING SUCH PRESCRIPTION DRUG AS A GENERIC  EQUIVALENT  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 ELIGIBLE PRESCRIPTION
 DRUG OR IS AN ELIGIBLE PRESCRIPTION DRUG THAT IS OR WOULD BE PART OF THE
 INSURED'S TREATMENT REGIMEN FOR SUCH CONDITION. SUCH BRAND NAME ELIGIBLE
 PRESCRIPTION DRUG SHALL BE COVERED AT THE SAME LEVEL OF COVERAGE AS  THE
 GENERIC  DRUG  IN  THE INSURER'S FORMULARY UNTIL SUCH TIME AS THE SUPPLY
 ISSUE IS RESOLVED AND THE DRUG HAS BEEN REMOVED FROM  THE  FEDERAL  FOOD
 AND DRUG ADMINISTRATION'S SHORTAGE LIST.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03949-01-5
 S. 9497                             2
 
   §  2.  Section  4329  of  the insurance law is amended by adding a new
 subsection (d) to read as follows:
   (D) (1) AS USED IN THIS SUBSECTION:
   (A)  "ELIGIBLE  PRESCRIPTION  DRUG" MEANS A PRESCRIPTION DRUG APPROVED
 UNDER 21 U.S.C. 355(C) THAT IS NOT UNDER PATENT.
   (B) "GENERIC DRUG" MEANS A DRUG THAT IS APPROVED PURSUANT TO AN APPLI-
 CATION REFERENCING AN ELIGIBLE PRESCRIPTION DRUG THAT IS SUBMITTED UNDER
 SUBSECTION (J) OF SECTION 505 OF THE FEDERAL FOOD,  DRUG,  AND  COSMETIC
 ACT, 21 U.S.C. 355.
   (C)  "SUPPLY  ISSUE" MEANS A DRUG SHORTAGE OR MEANINGFUL DISRUPTION AS
 DEFINED IN 21 U.S.C. 356(C).
   (2) IN THE EVENT AN AB-RATED  GENERIC  EQUIVALENT  OR  INTERCHANGEABLE
 BIOLOGICAL  PRODUCT  FOR  AN ELIGIBLE PRESCRIPTION DRUG IS COVERED IN AN
 INSURER'S FORMULARY AND SUCH GENERIC DRUG EQUIVALENT IS UNAVAILABLE  DUE
 TO A SUPPLY ISSUE WHICH HAS BEEN RECOGNIZED BY THE FEDERAL FOOD AND DRUG
 ADMINISTRATION  PURSUANT  TO  21  U.S.C.  356E  AND THE DOSAGE CANNOT BE
 ADJUSTED, A CORPORATION SUBJECT TO THE PROVISIONS OF THIS  ARTICLE  THAT
 ISSUES  A  CONTRACT  THAT PROVIDES COVERAGE FOR PRESCRIPTION DRUGS SHALL
 PROVIDE COVERAGE FOR A BRAND  NAME  ELIGIBLE  PRESCRIPTION  DRUG  TO  AN
 INSURED  WHO  IS  ALREADY  RECEIVING SUCH PRESCRIPTION DRUG AS A GENERIC
 EQUIVALENT 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 ELIGIBLE
 PRESCRIPTION DRUG OR IS AN ELIGIBLE PRESCRIPTION DRUG THAT IS  OR  WOULD
 BE  PART  OF  THE  INSURED'S  TREATMENT REGIMEN FOR SUCH CONDITION. SUCH
 BRAND NAME ELIGIBLE PRESCRIPTION DRUG SHALL BE COVERED AT THE SAME LEVEL
 OF COVERAGE AS THE GENERIC DRUG IN THE INSURER'S  FORMULARY  UNTIL  SUCH
 TIME  AS THE SUPPLY ISSUE IS RESOLVED AND THE DRUG HAS BEEN REMOVED FROM
 THE FEDERAL FOOD AND DRUG ADMINISTRATION'S SHORTAGE LIST.
   § 3. This act shall take effect immediately.