Bill Text: NY S07051 | 2023-2024 | General Assembly | Introduced
Bill Title: Requires Medicaid managed care, and Child Health Plus plans to adopt the procedural protections of the Preferred Drug Program, including "prescriber prevails", for all drugs.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-03 - REFERRED TO HEALTH [S07051 Detail]
Download: New_York-2023-S07051-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7051 2023-2024 Regular Sessions IN SENATE May 17, 2023 ___________ Introduced by Sen. SKOUFIS -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the social services law and the public health law, in relation to prescription drugs in Medicaid managed care programs; and to repeal certain provisions of the social services law, relating to payments for prescription drugs The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The social services law is amended by adding a new section 2 365-i to read as follows: 3 § 365-i. Prescription drugs in Medicaid managed care programs. 1. 4 Definitions. As used in this section, unless the context clearly 5 requires otherwise: 6 (a) "Article" means title eleven of article five of this chapter with 7 respect to the medical assistance program, and title one-A of article 8 twenty-five of the public health law with respect to the child health 9 insurance plan. 10 (b) "Clinical drug review program" means the clinical drug review 11 program under section two hundred seventy-four of the public health law. 12 (c) "Emergency condition" means a medical or behavioral condition as 13 determined by the prescriber or pharmacist, the onset of which is 14 sudden, that manifests itself by symptoms of sufficient severity, 15 including severe pain, and for which delay in beginning treatment 16 prescribed by the patient's health care practitioner would result in: 17 (i) placing the health or safety of the person afflicted with such 18 condition or other person or persons in serious jeopardy; 19 (ii) serious impairment to such person's bodily functions; 20 (iii) serious dysfunction of any bodily organ or part of such person; 21 (iv) serious disfigurement of such person; or 22 (v) severe discomfort. 23 (d) "Managed care provider" means a managed care provider under 24 section three hundred sixty-four-j of this title, a managed long term 25 care plan or other care coordination model under section forty-four 26 hundred three-f of the public health law, an approved organization under EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11188-01-3S. 7051 2 1 title one-A of article twenty-five of the public health law (child 2 health insurance plan), or any other entity that provides or arranges 3 for the provision of medical assistance services and supplies to partic- 4 ipants directly or indirectly (including by referral), including case 5 management, including the managed care provider's authorized agents. 6 (e) "Non-preferred drug" means a prescription drug that requires prior 7 authorization under the participant's managed care provider. 8 (f) "Participant" means a medical assistance recipient who receives, 9 is required to receive or elects to receive his or her medical assist- 10 ance services from a managed care provider. 11 (g) "Preferred drug" means a prescription drug that is not a non-pre- 12 ferred drug under the patient's managed care provider. "Preferred drug 13 list" means a list of a managed care provider's preferred drugs. 14 (h) "Preferred drug program" means the preferred drug program estab- 15 lished under section two hundred seventy-two of the public health law. 16 (i) "Prescriber" means a health care professional authorized to 17 prescribe prescription drugs for a participant of the managed care 18 provider, acting within his or her lawful scope of practice. 19 (j) "Prescription drug" or "drug" means a drug defined in subdivision 20 seven of section sixty-eight hundred two of the education law, for which 21 a prescription is required under the federal food, drug and cosmetic 22 act. Any drug that does not require a prescription under such act, but 23 which would otherwise be eligible for reimbursement under this article 24 when ordered by a prescriber and the prescription is subject to the 25 applicable provisions of this article and paragraph (a) of subdivision 26 four of section three hundred sixty-five-a of this title. 27 (k) "Prior authorization" means a process requiring the prescriber or 28 the dispenser to verify with the participant's managed care provider 29 that the drug is appropriate for the needs of the specific patient. 30 (l) "Qualified prescription drug system" or "system" means a process 31 under this section, approved by the commissioner, through which a 32 managed care provider approves payment for a non-preferred drug for a 33 participant based on prior authorization. 34 2. Payment for prescription drugs under capitation. (a) Payment for 35 prescription drugs shall be included in the capitation payments for 36 services or supplies provided to a managed care provider's participants, 37 provided that the managed care provider pays for prescription drugs 38 under a qualified prescription drug system. Every prescription drug 39 eligible for reimbursement under this article prescribed in relation to 40 a service provided by the managed care provider shall be either a 41 preferred or non-preferred drug under the qualified prescription drug 42 system. The commissioner shall approve a managed care provider's quali- 43 fied prescription drug system if it conforms to the provisions of this 44 section. 45 (b) If the managed care provider does not pay for prescription drugs 46 under a qualified prescription drug system, then payment for 47 prescription drugs for the managed care provider's patients shall not be 48 included in such capitation payments and prescription drugs shall be 49 provided for the managed care provider's participants under the 50 preferred drug program. 51 3. Qualified prescription drug system; criteria. (a) A qualified 52 prescription drug system shall promote access to the most effective 53 prescription drugs while reducing the cost of prescription drugs under 54 this article. This subdivision and subdivision four of this section 55 apply to qualified prescription drug systems.S. 7051 3 1 (b) When a prescriber prescribes a non-preferred drug for a partic- 2 ipant, reimbursement may be denied unless prior authorization is 3 obtained, unless no prior authorization is required under this section. 4 When a prescriber prescribes a preferred drug for a participant, no 5 prior authorization shall be required for reimbursement, unless prior 6 authorization is required under the clinical drug review program. 7 (c) The commissioner shall establish performance standards for systems 8 that, at a minimum, ensure that systems provide sufficient technical 9 support and timely responses to consumers, prescribers and pharmacists. 10 (d) The commissioner shall adopt criteria for qualified prescription 11 drug systems after considering recommendations and comments received 12 from prescribers, pharmacists, participants, and organizations repres- 13 enting them. 14 (e) The managed care provider shall develop its preferred drug list 15 based initially on an evaluation of the clinical effectiveness, safety, 16 and patient outcomes, followed by consideration of the cost-effective- 17 ness of the drugs. In each therapeutic class, the managed care provider 18 shall determine whether there is one drug that is significantly more 19 clinically effective and safe, and that drug shall be included on the 20 preferred drug list without consideration of cost. If, among two or more 21 drugs in a therapeutic class, the difference in clinical effectiveness 22 and safety is not clinically significant, then cost-effectiveness may 23 also be considered in determining which drug or drugs shall be included 24 on the preferred drug list. 25 4. Prior authorization. (a) A qualified prescription drug system shall 26 make available a twenty-four hour per day, seven days per week telephone 27 call center that includes a tollfree telephone line and dedicated 28 facsimile line to respond to requests for prior authorization. The call 29 center shall include qualified health care professionals who shall be 30 available to consult with prescribers concerning prescription drugs that 31 are non-preferred drugs. A prescriber seeking prior authorization shall 32 consult with the program call line to reasonably present his or her 33 justification for the prescription and give the program's qualified 34 health care professional a reasonable opportunity to respond. 35 (b) When a patient's health care provider prescribes a non-preferred 36 drug, the prescriber shall consult with the system to confirm that in 37 his or her reasonable professional judgment, the patient's clinical 38 condition is consistent with the criteria for approval of the non-pre- 39 ferred drug. Such criteria shall include: 40 (i) the preferred drug has been tried by the patient and has failed to 41 produce the desired health outcomes; 42 (ii) the patient has tried the preferred drug and has experienced 43 unacceptable side effects; 44 (iii) the patient has been stabilized on a non-preferred drug and 45 transition to the preferred drug would be medically contraindicated; or 46 (iv) other clinical indications identified by the commissioner or the 47 managed care provider for the patient's use of the non-preferred drug, 48 which shall include consideration of the medical needs of special popu- 49 lations, including children, elderly, chronically ill, persons with 50 mental health conditions, and persons affected by HIV/AIDS or Hepatitis 51 C. 52 (c) In the event that the patient does not meet the criteria in para- 53 graph (b) of this subdivision, the prescriber may provide additional 54 information to the managed care provider to justify the use of a non- 55 preferred drug. The system shall provide a reasonable opportunity for a 56 prescriber to reasonably present his or her justification of priorS. 7051 4 1 authorization. If, after consultation with the managed care provider, 2 the prescriber, in his or her reasonable professional judgment, deter- 3 mines that the use of a non-preferred drug is warranted, the 4 prescriber's determination shall be final. 5 (d) If a prescriber meets the requirements of paragraph (b) or (c) of 6 this subdivision, the prescriber shall be granted prior authorization 7 under this section. 8 (e) In the instance where a prior authorization determination is not 9 completed within twenty-four hours of the original request, solely as 10 the result of a failure of the system (whether by action or inaction), 11 prior authorization shall be immediately and automatically granted with 12 no further action by the prescriber and the prescriber shall be notified 13 of this determination. In the instance where a prior authorization 14 determination is not completed within twenty-four hours of the original 15 request for any other reason, a seventy-two hour supply of the medica- 16 tion shall be approved by the system and the prescriber shall be noti- 17 fied of this determination. 18 (f) When, in the judgment of the prescriber or the pharmacist, an 19 emergency condition exists, and the prescriber or pharmacist notifies 20 the managed care provider that an emergency condition exists, a seven- 21 ty-two hour emergency supply of the drug prescribed shall be immediately 22 authorized by the managed care provider. 23 (g) In the event that a patient presents a prescription to a pharma- 24 cist for a prescription drug that is a non-preferred drug and for which 25 the prescriber has not obtained a prior authorization, the pharmacist 26 shall, within a prompt period based on professional judgment, notify the 27 prescriber. The prescriber shall, within a prompt period based on 28 professional judgment, either seek prior authorization or shall contact 29 the pharmacist and amend or cancel the prescription. The pharmacist 30 shall, within a prompt period based on professional judgment, notify the 31 patient when prior authorization has been obtained or denied or when the 32 prescription has been amended or cancelled. 33 (h) Once prior authorization of a prescription for a drug that is not 34 on the preferred drug list is obtained, prior authorization shall not be 35 required for any refill of the prescription. 36 (i) No prior authorization under a qualified prescription drug system 37 shall be required for: (i) atypical anti-psychotics; (ii) anti-depres- 38 sants; (iii) anti-retrovirals used in the treatment of HIV/AIDS or Hepa- 39 titis C; (iv) anti-rejection drugs used in the treatment of organ and 40 tissue transplants; and (v) any other therapeutic class for the treat- 41 ment of mental illness, HIV/AIDS or Hepatitis C, approved by the commis- 42 sioner. 43 5. Clinical drug review program. In the case of a drug for which prior 44 authorization is required under the clinical drug review program, prior 45 authorization shall be obtained under the clinical drug review program 46 and not under this section. 47 6. Prescriber conduct. The managed care provider and the department 48 shall monitor the prior authorization process under a qualified 49 prescription drug system for prescribing patterns which are suspected of 50 endangering the health and safety of the patient or which demonstrate a 51 likelihood of fraud or abuse. The managed care provider and the depart- 52 ment shall take any and all actions otherwise permitted by law to inves- 53 tigate such prescribing patterns, to take remedial action and to enforce 54 applicable federal and state laws. 55 7. Use of preferred drug program. The commissioner may contract with a 56 managed care provider for the provider to use the preferred drug programS. 7051 5 1 to provide prior authorization under the managed care provider's quali- 2 fied prescription drug system. The contract shall include terms required 3 by the commissioner to maximize savings to the Medicaid program and 4 protect the health and interests of the managed care provider's partic- 5 ipants. The contract shall provide whether the preferred drug program 6 shall use the managed care provider's lists of preferred and non-pre- 7 ferred drugs or the preferred drug list under the preferred drug 8 program, with respect to whether prior authorization is required. 9 § 2. Subdivisions 25 and 25-a of section 364-j of the social services 10 law are REPEALED. 11 § 3. Section 2511 of the public health law is amended by adding a new 12 subdivision 23 to read as follows: 13 23. Payment for prescription drugs. Payment for prescription drugs 14 shall be included in the payments for services or supplies provided by 15 the approved organization, provided that the plan pays for prescription 16 drugs under a qualified prescription drug system under section three 17 hundred sixty-five-i of the social services law. Every prescription drug 18 eligible for reimbursement under this article prescribed in relation to 19 a service provided by the approved organization shall be either a 20 preferred or non-preferred drug under the qualified prescription drug 21 system. If the approved organization does not pay for prescription drugs 22 under a qualified prescription drug system, then payment for 23 prescription drugs for the approved organization's patients shall not be 24 included in such payments and prescription drugs shall be provided for 25 the approved organization's participants under the preferred drug 26 program. 27 § 4. Subdivision 11 of section 270 of the public health law, as 28 amended by section 2-a of part C of chapter 58 of the laws of 2008, is 29 amended to read as follows: 30 11. "State public health plan" means the medical assistance program 31 established by title eleven of article five of the social services law 32 (referred to in this article as "Medicaid"), the elderly pharmaceutical 33 insurance coverage program established by title three of article two of 34 the elder law (referred to in this article as "EPIC"), [and the family35health plus program established by section three hundred sixty-nine-ee36of the social services law to the extent that section provides that the37program shall be subject to this article], and the child health insur- 38 ance plan under title one-A of article twenty-five of this chapter. 39 § 5. Section 272 of the public health law is amended by adding a new 40 subdivision 12 to read as follows: 41 12. No prior authorization shall be required under the preferred drug 42 program for: 43 (a) atypical anti-psychotics; (b) anti-depressants; (c) anti-retrovi- 44 rals used in the treatment of HIV/AIDS or Hepatitis C; (d) anti-rejec- 45 tion drugs used in the treatment of organ and tissue transplants; and 46 (e) any other therapeutic class for the treatment of mental illness, 47 HIV/AIDS or Hepatitis C, recommended by the board and approved by the 48 commissioner under this section. 49 § 6. This act shall take effect on the one hundred eightieth day after 50 it shall have become a law; provided, however, that section two of this 51 act shall take effect one year after this act shall have become a law. 52 Effective immediately, the addition, amendment and/or repeal of any rule 53 or regulation necessary for the implementation of this act on its effec- 54 tive date are authorized to be made and completed on or before such 55 effective date.
