Bill Text: NY A02973 | 2019-2020 | General Assembly | Introduced
Bill Title: Provides that prescription benefit plans may not require patients to receive prescriptions through mail order pharmacies.
Spectrum: Moderate Partisan Bill (Democrat 31-9)
Status: (Introduced - Dead) 2020-01-08 - referred to insurance [A02973 Detail]
Download: New_York-2019-A02973-Introduced.html
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. LBD00275-01-9A. 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 fairA. 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.
