Amends provisions governing reimbursement practices of pharmacy benefit managers to ensure that pharmacies are not reimbursed an amount less than the cost of procuring the drugs.
STATE OF NEW YORK
________________________________________________________________________
950
2023-2024 Regular Sessions
IN SENATE
January 9, 2023
___________
Introduced by Sen. THOMAS -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the public health law, in relation to pharmacy benefit
managers
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 280-a of the public health law, as added by chapter
2 828 of the laws of 2021, subdivisions 1, 2, 3 and 5 as amended by chap-
3 ter 128 of the laws of 2022, is amended to read as follows:
4 § 280-a. Pharmacy benefit managers. 1. Definitions. As used in this
5 section, the following terms shall have the following meanings:
6 (a) "Health plan" means an entity for which a pharmacy benefit manager
7 provides pharmacy benefit management services and that is a health bene-
8 fit plan or other entity that approves, provides, arranges for, or pays
9 or reimburses in whole or in part for health care items or services, to
10 include at least prescription drugs, for a substantial number of benefi-
11 ciaries who work or reside in this state. The superintendent shall
12 determine, in his or her sole discretion, by regulation how the phrase
13 "a substantial number of beneficiaries who work or reside in this state"
14 shall be interpreted.
15 (b) "Pharmacy benefit management services" means the management or
16 administration of prescription drug benefits for a health plan, directly
17 or through another entity, and regardless of whether the pharmacy bene-
18 fit manager and the health plan are related, or associated by ownership,
19 common ownership, organization or otherwise; including the procurement
20 of prescription drugs to be dispensed to patients, or the administration
21 or management of prescription drug benefits, including but not limited
22 to, any of the following:
23 (i) mail service pharmacy;
24 (ii) claims processing, retail network management, or payment of
25 claims to pharmacies for dispensing prescription drugs;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01957-01-3
S. 950 2
1 (iii) clinical or other formulary or preferred drug list development
2 or management;
3 (iv) negotiation or administration of rebates, discounts, payment
4 differentials, or other incentives, for the inclusion of particular
5 prescription drugs in a particular category or to promote the purchase
6 of particular prescription drugs;
7 (v) patient compliance, therapeutic intervention, or generic substi-
8 tution programs;
9 (vi) disease management;
10 (vii) drug utilization review or prior authorization;
11 (viii) adjudication of appeals or grievances related to prescription
12 drug coverage;
13 (ix) contracting with network pharmacies; and
14 (x) controlling the cost of covered prescription drugs.
15 (c) "Pharmacy benefit manager" means any entity that performs pharmacy
16 benefit management services for a health plan.
17 (d) "Maximum allowable cost price" means a maximum reimbursement
18 amount set by the pharmacy benefit manager for therapeutically equiv-
19 alent multiple source generic drugs.
20 (e) "Controlling person" means any person or other entity who or which
21 directly or indirectly has the power to direct or cause to be directed
22 the management, control or activities of a pharmacy benefit manager.
23 (f) "Covered individual" means a member, participant, enrollee,
24 contract holder or policy holder or beneficiary of a health plan.
25 (g) "License" means a license to be a pharmacy benefit manager, under
26 article twenty-nine of the insurance law.
27 (h) "Spread pricing" means the practice of a pharmacy benefit manager
28 retaining an additional amount of money in addition to the amount paid
29 to the pharmacy to fill a prescription.
30 (i) "Superintendent" means the superintendent of financial services.
31 (j) "Pharmacy acquisition cost" means the amount that a pharmaceutical
32 wholesaler charges for a pharmaceutical product as listed on the pharma-
33 cy's billing invoice.
34 (k) "Pharmacy benefit manager affiliate" means a pharmacy or pharma-
35 cist that directly or indirectly, through one or more intermediaries
36 owns or controls, is owned or controlled by, or is under common owner-
37 ship or control with a pharmacy benefit manager.
38 (l) "Pharmacy benefits plan or program" means a plan or program that
39 pays for, reimburses, covers the cost of, or otherwise provides for
40 pharmacist services to individuals who reside in or are employed in this
41 state.
42 2. Duty, accountability and transparency. (a) (i) The pharmacy benefit
43 manager shall have a duty and obligation to perform pharmacy benefit
44 management services with care, skill, prudence, diligence, and profes-
45 sionalism.
46 (ii) In addition to the duties as may be prescribed by regulation
47 pursuant to article twenty-nine of the insurance law:
48 (1) A pharmacy benefit manager interacting with a covered individual
49 shall have the same duty to a covered individual as the health plan for
50 whom it is performing pharmacy benefit management services.
51 (2) A pharmacy benefit manager shall have a duty of good faith and
52 fair dealing with all parties, including but not limited to covered
53 individuals and pharmacies, with whom it interacts in the performance of
54 pharmacy benefit management services.
55 (b) All funds received by the pharmacy benefit manager in relation to
56 providing pharmacy benefit management services shall be received by the
S. 950 3
1 pharmacy benefit manager in trust and shall be used or distributed only
2 pursuant to the pharmacy benefit manager's contract with the health plan
3 or applicable law; including any administrative fee or payment to the
4 pharmacy benefit manager expressly provided for in the contract to
5 compensate the pharmacy benefit manager for its services. Any funds
6 received by the pharmacy benefit manager through spread pricing shall be
7 subject to this paragraph. In addition to any other power conferred by
8 law the superintendent shall have the authority to prescribe rules
9 concerning pharmacy benefit manager administrative fees, including limi-
10 tations on their form and use.
11 (c) The pharmacy benefit manager shall account, annually or more
12 frequently to the health plan for any pricing discounts, rebates of any
13 kind, inflationary payments, credits, clawbacks, fees, grants, charge-
14 backs, reimbursements, or other benefits received by the pharmacy bene-
15 fit manager. The health plan shall have access to all financial and
16 utilization information of the pharmacy benefit manager in relation to
17 pharmacy benefit management services provided to the health plan.
18 (d) The pharmacy benefit manager shall disclose in writing to the
19 health plan the terms and conditions of any contract or arrangement
20 between the pharmacy benefit manager and any party relating to pharmacy
21 benefit management services provided to the health plan including but
22 not limited to, dispensing fees paid to the pharmacies.
23 (e) The pharmacy benefit manager shall disclose in writing to the
24 health plan any activity, policy, practice, contract or arrangement of
25 the pharmacy benefit manager that directly or indirectly presents any
26 conflict of interest with the pharmacy benefit manager's relationship
27 with or obligation to the health plan.
28 (f) Any information required to be disclosed by a pharmacy benefit
29 manager to a health plan under this section that is reasonably desig-
30 nated by the pharmacy benefit manager as proprietary or trade secret
31 information shall be kept confidential by the health plan, except as
32 required or permitted by law, including disclosure necessary to prose-
33 cute or defend any legitimate legal claim or cause of action. Desig-
34 nation of information as proprietary or trade secret information under
35 this subdivision shall have no effect on the obligations of any pharmacy
36 benefit manager or health plan to provide that information to the
37 department of health or the department of financial services.
38 (g) The superintendent, in consultation with the commissioner may make
39 regulations defining, limiting, and relating to the duties, obligations,
40 requirements and other provisions relating to pharmacy benefit managers
41 under this subdivision.
42 3. Prescriptions. A pharmacy benefit manager may not substitute or
43 cause the substituting of one prescription drug for another in dispens-
44 ing a prescription, or alter or cause the altering of the terms of a
45 prescription, except with the approval of the prescriber or as explicit-
46 ly required or permitted by law, including regulations of the department
47 of financial services or the department of health. The superintendent
48 and commissioner, in coordination with each other, are authorized to
49 promulgate regulations to determine when substitution of prescription
50 drugs may be required or permitted.
51 4. Appeals. A pharmacy benefit manager shall, with respect to
52 contracts between a pharmacy benefit manager and a pharmacy or, alterna-
53 tively, a pharmacy benefit manager and a pharmacy's contracting agent,
54 such as a pharmacy services administrative organization, include a
55 reasonable process to appeal, investigate and resolve disputes regarding
56 multi-source generic drug pricing, including being below the pharmacy
S. 950 4
1 acquisition cost. The appeals process shall include the following
2 provisions:
3 (a) the right to appeal by the pharmacy and/or the pharmacy's
4 contracting agent shall be limited to thirty days following the initial
5 claim submitted for payment;
6 (b) a telephone number through which a network pharmacy may contact
7 the pharmacy benefit manager for the purpose of filing an appeal and an
8 electronic mail address of the individual who is responsible for proc-
9 essing appeals;
10 (c) the pharmacy benefit manager shall send an electronic mail message
11 acknowledging receipt of the appeal. The pharmacy benefit manager shall
12 respond in an electronic message to the pharmacy and/or the pharmacy's
13 contracting agent filing the appeal within seven business days indicat-
14 ing its determination. If the appeal is determined to be valid, the
15 maximum allowable cost for the drug shall be adjusted for the appealing
16 pharmacy effective as of the date of the original claim for payment. The
17 pharmacy benefit manager shall require the appealing pharmacy to reverse
18 and rebill the claim in question in order to obtain the corrected
19 reimbursement;
20 (d) if an update to the maximum allowable cost is warranted, the phar-
21 macy benefit manager or covered entity shall adjust the maximum allow-
22 able cost of the drug effective for all similarly situated pharmacies in
23 its network in the state on the date the appeal was determined to be
24 valid; and
25 (e) if an appeal is denied, the pharmacy benefit manager shall identi-
26 fy the national drug code of a therapeutically equivalent drug, as
27 determined by the federal Food and Drug Administration, that is avail-
28 able for purchase by pharmacies in this state from wholesalers regis-
29 tered pursuant to subdivision four of section sixty-eight hundred eight
30 of the education law at a price which is equal to or less than the maxi-
31 mum allowable cost for that drug as determined by the pharmacy benefit
32 manager.
33 4-a. Maximum allowable costs. (a) If the national drug code number
34 provided by the pharmacy benefit manager is not available below the
35 pharmacy acquisition cost from the pharmaceutical wholesaler from whom
36 the pharmacy or pharmacist purchases the majority of prescription drugs
37 for resale, then the pharmacy benefit manager shall adjust the maximum
38 allowable cost above the challenging pharmacy's pharmacy acquisition
39 cost and permit the pharmacy to reverse and rebill each claim affected
40 by the inability to procure the drug at a cost that is equal to or less
41 than the previously challenged maximum allowable cost.
42 (b) A pharmacy benefit manager shall not reimburse a pharmacy or phar-
43 macist in this state an amount less than the amount that the pharmacy
44 benefit manager reimburses a pharmacy benefit manager affiliate for
45 providing the same pharmacist services.
46 (c) The amount shall be calculated on a per unit basis based on the
47 same generic product identified or generic code number.
48 (d) A pharmacy or pharmacist may decline to provide the pharmacist
49 services to a patient or pharmacy benefit manager if, as a result of a
50 maximum allowable cost, a pharmacy or pharmacist is to be paid less than
51 the pharmacy acquisition cost of the pharmacy providing pharmacist
52 services.
53 5. Contract provisions. No pharmacy benefit manager shall, with
54 respect to contracts between such pharmacy benefit manager and a pharma-
55 cy or, alternatively, such pharmacy benefit manager and a pharmacy's
S. 950 5
1 contracting agent, such as a pharmacy services administrative organiza-
2 tion:
3 (a) prohibit or penalize a pharmacist or pharmacy from disclosing to
4 an individual purchasing a prescription medication information regard-
5 ing:
6 (i) the cost of the prescription medication to the individual, or
7 (ii) the availability of any therapeutically equivalent alternative
8 medications or alternative methods of purchasing the prescription medi-
9 cation, including but not limited to, paying a cash price; or
10 (b) charge or collect from an individual a copayment that exceeds the
11 total submitted charges by the pharmacy for which the pharmacy is paid.
12 If an individual pays a copayment, the pharmacy shall retain the adjudi-
13 cated costs and the pharmacy benefit manager shall not redact or recoup
14 the adjudicated cost.
15 6. Pharmacy benefit manager additional duties. A pharmacy benefit
16 manager shall:
17 (a) provide access to its maximum allowable cost prices to each phar-
18 macy subject to the maximum allowable cost price; and
19 (b) update its maximum allowable cost prices on a timely basis, but in
20 no event longer than seven calendar days from an increase of ten percent
21 or more in the pharmacy acquisition cost from sixty percent or more of
22 the pharmaceutical wholesaler doing business in the state or a change in
23 the methodology on which the maximum allowable cost price is based or in
24 the value of a variable involved in the methodology.
25 § 2. This act shall take effect immediately.
