S07051 Summary:

BILL NOS07051
 
SAME ASNo Same As
 
SPONSORSKOUFIS
 
COSPNSR
 
MLTSPNSR
 
Add 365-i, rpld 364-j subs 25 & 25-a, Soc Serv L; amd 2511, 270 & 272, Pub Health L
 
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.
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S07051 Actions:

BILL NOS07051
 
05/17/2023REFERRED TO HEALTH
01/03/2024REFERRED TO HEALTH
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S07051 Committee Votes:

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S07051 Floor Votes:

There are no votes for this bill in this legislative session.
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S07051 Memo:

Memo not available
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S07051 Text:



 
                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.
                                                                   LBD11188-01-3

        S. 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  prior

        S. 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 program

        S. 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  family
    35  health  plus  program established by section three hundred sixty-nine-ee
    36  of the social services law to the extent that section provides that  the
    37  program  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.
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