STATE OF NEW YORK
________________________________________________________________________
2973
2019-2020 Regular Sessions
IN ASSEMBLY
January 28, 2019
___________
Introduced by M. of A. JOYNER, ROZIC, CARROLL, LAVINE, ZEBROWSKI,
L. ROSENTHAL, MONTESANO, GALEF, COLTON, ORTIZ, COOK, GLICK, D'URSO,
CROUCH, DICKENS, CRESPO, JAFFEE, WOERNER, BENEDETTO, GIGLIO,
JEAN-PIERRE, PEOPLES-STOKES, BRABENEC, DE LA ROSA, BLAKE, BARRETT --
Multi-Sponsored by -- M. of A. ABBATE, BLANKENBUSH, BRAUNSTEIN,
ENGLEBRIGHT, HEVESI, McDONOUGH, NOLAN, SIMON, STEC, THIELE, WALSH,
WRIGHT -- read once and referred to the Committee on Insurance
AN ACT to amend the general business law, in relation to mail order
pharmacies
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The general business law is amended by adding a new article
2 40 to read as follows:
3 ARTICLE 40
4 MAIL ORDER PHARMACIES
5 Section 900. Legislative findings and declarations; purposes.
6 901. Definitions.
7 902. Prohibited conduct.
8 903. Action to recover damages by an enrollee.
9 904. Violations.
10 905. Enforcement by attorney general.
11 906. Applicability.
12 § 900. Legislative findings and declarations; purposes. 1. The legis-
13 lature finds and declares that:
14 (a) The number of Americans who are prescribed three or more medica-
15 tions is growing at an alarming rate, with approximately ten percent of
16 the population taking five or more prescription medications. These Amer-
17 icans face many challenges when they are required to receive some of
18 their prescriptions from a mail order pharmacy while receiving other
19 prescriptions from a local retail pharmacy. These challenges include
20 the discovery of potential adverse interactions among their prescription
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00275-01-9
A. 2973 2
1 drugs, comprehensive counseling, the coordination and timing of the
2 receipt of prescriptions, and the ability to keep information regarding
3 their medical condition or conditions private.
4 (b) Americans with multiple prescriptions benefit from the services
5 provided by a local retail pharmacy because such local source will not
6 only be able to determine if there are any harmful or potentially harm-
7 ful drug interactions but can also provide immediate face-to-face,
8 confidential counseling to the patient regarding any and all of his or
9 her prescribed drugs. For patients who are enrolled in a prescription
10 benefit plan, ensuring that the plan's network includes local retail
11 pharmacies has become of great importance. Mandating that certain
12 prescriptions must be filled by a mail order pharmacy is not in the best
13 interest of all prescription benefit plan enrollees and such
14 prescription benefit plan enrollees should be given the choice regarding
15 where a prescription will be filled.
16 (c) Many Americans wish to keep information regarding their
17 prescriptions and health conditions private. Some Americans will choose
18 to disclose information to their family, while others may choose not to
19 disclose any information to any person. Many people know that medication
20 used to treat chronic, complex or rare conditions is dispensed by mail
21 order pharmacies, not local retail pharmacies. As part of their business
22 model, mail order pharmacies engage the services of third-party common
23 carriers to deliver prescriptions. This can lead to inadvertent disclo-
24 sure of and conjecture regarding private information to such common
25 carriers' employees, as well as the recipient's neighbors who may note
26 the regular deliveries of prescription medications to the recipient,
27 especially if the packages are left at the recipient's door.
28 (d) While prescription benefit plans have not foreclosed the possibil-
29 ity for a local network retail pharmacy to dispense specialty medica-
30 tions, many of these plans will not allow a local network retail pharma-
31 cy to dispense such prescriptions unless the pharmacy agrees to
32 additional contractual terms and conditions. Many specialty medications
33 do not require any additional or special services for proper dispensing;
34 they have been deemed to be specialty prescriptions because they are
35 expensive. While these additional terms and conditions make sense when
36 there is no possibility for face-to-face interactions between a pharma-
37 cist and the patient, they present an undue burden to local retail phar-
38 macies seeking to dispense specialty medications.
39 (e) Requiring prescription benefit plan enrollees to remit a higher
40 co-payment or pay the full retail price for a prescription that is
41 dispensed by a network retail pharmacy instead of a network mail order
42 pharmacy is not in the best interest of such enrollees as it effectively
43 forces an enrollee to use only mail order prescription pharmacies by
44 making all alternatives cost prohibitive.
45 (f) Similarly, requiring local network retail pharmacies to accept a
46 lower payment for dispensing specialty prescription drugs is not in the
47 best interest of the prescription benefit plan's enrollees because it
48 may become financially difficult for a network retail pharmacy to remain
49 in the prescription benefit plan's network. The result of this practice
50 is the complete elimination of or a reduction in the number of local
51 network retail pharmacies available to prescription benefit plan enrol-
52 lees.
53 2. The legislature declares that it is the express policy of this
54 state to safeguard the public against inadvertent disclosure of medical
55 conditions, unnecessary complexity in obtaining prescription medications
56 and financial hardship, and to foster and encourage competition and fair
A. 2973 3
1 dealing in the field of pharmaceutical services by prohibiting
2 prescription benefit plans from requiring that certain prescriptions be
3 filled by a network mail order pharmacy, harmful financial practices,
4 and other unfair practices that have been conducted by some prescription
5 benefit plans.
6 3. The legislature further finds that prescription benefit plans may
7 have a significant impact upon the economy and well-being of this state
8 and its local communities, and therefore the provisions of this article
9 are necessary to promote the public welfare.
10 4. The intent and purposes of this article are to provide prescription
11 benefit plan enrollees with the ability to choose whether to fill a
12 prescription at a local network retail pharmacy or a network mail order
13 pharmacy without incurring additional costs for choosing to have their
14 prescriptions filled by a local network retail pharmacy; to provide all
15 network retail pharmacies with the ability to contract with prescription
16 benefit plans to dispense prescriptions that have been deemed to be mail
17 order prescriptions by the pharmacy benefit manager without being
18 required to agree to additional contractual terms and conditions that
19 are applicable to mail order pharmacies where there is no face-to-face
20 interaction with prescription benefit plan enrollees, such as a twenty-
21 four hour customer service hotline; and to ensure that local network
22 retail pharmacies are not monetarily penalized for dispensing
23 prescriptions that the pharmacy benefit manager has deemed to be
24 specialty drug prescriptions requiring dispensing by a mail order phar-
25 macy.
26 § 901. Definitions. As used in this article:
27 1. "Mail order pharmacy" shall mean a pharmacy whose primary business
28 is to receive prescriptions by mail, telefax or through electronic
29 submissions and to dispense medication to patients through the use of
30 the United States mail or other common or contract carrier services and
31 provide any consultation with patients electronically rather than face-
32 to-face.
33 2. "Retail pharmacy" shall mean a pharmacy whose primary business is
34 to receive prescriptions directly from patients or through electronic
35 submissions and to dispense medication directly to patients and provide
36 face-to-face consultation with patients. For purposes of this subdivi-
37 sion, the term "patient" shall include a person who is acting on behalf
38 of a patient.
39 3. "Prescription benefit plan" shall mean any benefit plan other than
40 a state public health plan, as defined in subdivision eleven of section
41 two hundred seventy of the public health law, or an employee welfare
42 benefit plan, as defined in subsection one of section one thousand two
43 of the United States code, that provides prescription benefits, a
44 governmental plan, as defined in subsection thirty-two of section one
45 thousand two of the United States code, a church plan, as defined in
46 subsection thirty-three of section one thousand two of the United States
47 code, or a plan is maintained solely for the purpose of complying with
48 applicable workers' compensation laws or unemployment compensation or
49 disability insurance laws, that includes prescription drug benefits to
50 enrollees and their dependents.
51 4. "Specialty prescription drug" shall mean a prescription drug that
52 is used to treat a chronic, complex or rare condition, has been desig-
53 nated in the prescription benefit plan's formulary as a specialty
54 prescription drug, and will only be covered by the prescription benefit
55 plan if it is dispensed by a network mail order pharmacy or an author-
56 ized network retail pharmacy.
A. 2973 4
1 5. "Network" shall mean a mail order pharmacy or retail pharmacy that
2 participates in a prescription benefit plan.
3 6. "Mail order prescription" shall mean any prescription drug, includ-
4 ing, but not limited to specialty prescription drugs, that a
5 prescription benefit plan requires be filled by a mail order pharmacy or
6 an authorized network retail pharmacy in order for such dispensed
7 prescription to be covered by such plan.
8 7. "Prescription benefit plan enrollee" or "enrollee" shall mean the
9 person who is enrolled in the prescription benefit plan and his or her
10 spouse and dependent children who are enrolled in the prescription bene-
11 fit plan as dependents of such person.
12 8. "Authorized network retail pharmacy" shall mean a retail pharmacy
13 that, when used by a member to fill a mail order prescription, such
14 prescription will be covered by the member's prescription benefit plan
15 as if such pharmacy was a mail order pharmacy.
16 § 902. Prohibited conduct. 1. Notwithstanding any provision of law to
17 the contrary, it shall be unlawful for a prescription benefit plan to
18 require an enrollee or an enrollee's dependent to obtain any
19 prescription drug from a network mail order pharmacy in order to receive
20 coverage from such plan for such prescription.
21 2. Notwithstanding any provision of law to the contrary, it shall be
22 unlawful for a prescription benefit plan to require that an enrollee or
23 an enrollee's dependent remit a higher co-payment for a prescription
24 when such prescription is dispensed by a network retail pharmacy.
25 3. Notwithstanding any provision of law to the contrary, it shall be
26 unlawful for a prescription benefit plan to require a network retail
27 pharmacy to agree to additional contractual terms and conditions that go
28 beyond the industry standard and are not reasonable and relevant as a
29 condition precedent to allowing such a retail pharmacy to dispense any
30 prescription drug, including mail order prescription drugs, as a network
31 provider.
32 4. Notwithstanding any provision of law to the contrary, it shall be
33 unlawful for a mail order pharmacy to automatically refill a
34 prescription benefit plan enrollee's prescription without obtaining
35 permission for such automatic refills from such enrollee, or in the case
36 of an enrollee's dependent child, the enrollee or child's parent;
37 provided, however, any permission granted for automatic refills shall
38 expire after six months and may be renewed thereafter for intervals not
39 to exceed six months.
40 5. Notwithstanding any provision of law to the contrary, it shall be
41 unlawful for any mail order pharmacy to retain an enrollee's payment
42 information for future use without the consent of the enrollee. For
43 purposes of this subdivision, payment information includes, but is not
44 limited to, credit card information, debit card information, and bank
45 account information.
46 § 903. Action to recover damages by an enrollee. 1. Any person injured
47 by a violation of this article may bring an action for the recovery of
48 damages. Judgment may be entered in favor of such person in an amount
49 not to exceed three times the actual damages or one hundred dollars,
50 whichever is greater. The court may award reasonable attorney's fees to
51 a prevailing plaintiff.
52 2. Nothing in this article shall be construed so as to nullify or
53 impair any right or rights which a prescription benefit plan enrollee or
54 such enrollee's dependent may have against a seller at common law, by
55 statute, or otherwise.
A. 2973 5
1 § 904. Violations. Any mail order pharmacy or prescription benefit
2 plan, including its employees and agents, that violates any provision of
3 this article, shall be liable for a civil fine of not more than twenty-
4 five hundred dollars for each violation.
5 § 905. Enforcement by attorney general. In addition to the other reme-
6 dies provided, whenever there shall be a violation of this article,
7 application may be made by the attorney general in the name of the
8 people of the state to a court having jurisdiction to issue an injunc-
9 tion, and upon notice to the respondent of not fewer than five days, to
10 enjoin and restrain the continuance of the violation. If it shall appear
11 to the satisfaction of the court or justice that the defendant has, in
12 fact, violated this article, an injunction may be issued by such court
13 or justice, enjoining and restraining any further violation, without
14 requiring proof that any person has, in fact, been injured or damaged
15 thereby. In any such proceeding, the court may make allowances to the
16 attorney general as provided in paragraph six of subdivision (a) of
17 section eighty-three hundred three of the civil practice law and rules,
18 and direct restitution. Whenever the court shall determine that a
19 violation of this article has occurred, the court may impose a civil
20 penalty of not more than ten thousand dollars for each violation.
21 § 906. Applicability. This article shall not apply to any employee
22 welfare benefit plan, as defined in subsection one of section one thou-
23 sand two of the United States code, that provides prescription benefits,
24 governmental plan, as defined in subsection thirty-two of section one
25 thousand two of the United States code, church plan, as defined in
26 subsection thirty-three of section one thousand two of the United States
27 code, or a plan is maintained solely for the purpose of complying with
28 applicable workers' compensation laws or unemployment compensation or
29 disability insurance laws.
30 § 2. This act shall take effect on the ninetieth day after it shall
31 have become a law and shall apply to contracts entered into, amended or
32 renewed on and after such date.