Bill Text: NY A04787 | 2013-2014 | General Assembly | Introduced
Bill Title: Prohibits pharmacy benefits managers, HMOs, insurers and health plans from offering incentives to health care providers to switch from one prescription drug to another specific prescription drug.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Introduced - Dead) 2014-02-06 - advanced to third reading cal.438 [A04787 Detail]
Download: New_York-2013-A04787-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4787
2013-2014 Regular Sessions
I N A S S E M B L Y
February 8, 2013
___________
Introduced by M. of A. PERRY, JAFFEE, MAISEL, GUNTHER, JACOBS, CASTRO,
GIBSON, COLTON -- Multi-Sponsored by -- M. of A. WEISENBERG -- read
once and referred to the Committee on Health
AN ACT to amend the public health law, in relation to prohibiting phar-
macy benefit managers, health maintenance organizations, insurers and
other health plans from offering incentives to health care providers
to switch a patient from a specific prescription drug to another
specific drug, excluding generic substitution
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The public health law is amended by adding a new article
2 2-B to read as follows:
3 ARTICLE 2-B
4 IMPROPER PAYMENTS FOR PRESCRIPTION DRUG
5 SWITCHES PROHIBITED
6 SECTION 285. DEFINITIONS.
7 285-A. UNLAWFUL PAYMENTS WITH RESPECT TO HEALTH CARE PROVIDER
8 PRESCRIBING PRACTICES.
9 285-B. NO RETALIATION AGAINST HEALTH CARE PROVIDERS.
10 285-C. ENFORCEMENT.
11 S 285. DEFINITIONS. FOR THE PURPOSE OF THIS ARTICLE: 1. "HEALTH PLAN"
12 MEANS A NONHOSPITAL OR MEDICAL SERVICE ORGANIZATION, INSURER, HEALTH
13 COVERAGE PLAN OR HEALTH MAINTENANCE ORGANIZATION LICENSED PURSUANT TO
14 THE INSURANCE LAW; ANY ORGANIZATION CERTIFIED OR RECOGNIZED PURSUANT TO
15 ARTICLE FORTY-FOUR OF THIS CHAPTER, INCLUDING AN INDEPENDENT PRACTICE
16 ASSOCIATION; OR AN EMPLOYER, LABOR UNION OR OTHER GROUP OF PERSONS
17 ORGANIZED IN THE STATE THAT PROVIDES HEALTH COVERAGE TO PARTICIPANTS WHO
18 ARE EMPLOYED OR RESIDE IN THE STATE. "HEALTH PLAN" DOES NOT INCLUDE A
19 HEALTH PLAN THAT PROVIDES COVERAGE ONLY FOR ACCIDENTAL INJURY, SPECIFIED
20 DISEASE, HOSPITAL INDEMNITY, MEDICARE SUPPLEMENT, DISABILITY INCOME,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00095-01-3
A. 4787 2
1 LONG-TERM CARE OR OTHER LIMITED BENEFIT HEALTH INSURANCE POLICIES AND
2 CONTRACTS.
3 2. "HEALTH CARE PROVIDER" MEANS A LICENSED HEALTH CARE PROVIDER LEGAL-
4 LY AUTHORIZED TO PRESCRIBE DRUGS UNDER THE PROVISIONS OF THE EDUCATION
5 LAW.
6 3. "PRESCRIPTION DRUG PRODUCT" MEANS ANY PRODUCT SUBJECT TO THE
7 REQUIREMENTS OF SECTION SIXTY-EIGHT HUNDRED ELEVEN-A OF THE EDUCATION
8 LAW.
9 4. "PHARMACY BENEFIT MANAGER" OR "PBM" MEANS A PERSON OR ENTITY THAT
10 PROVIDES PHARMACY BENEFIT MANAGEMENT SERVICES TO A HEALTH PLAN.
11 5. "PHARMACY BENEFIT MANAGEMENT SERVICES" MEANS THE NEGOTIATION OF THE
12 AMOUNT TO BE PAID FOR PRESCRIPTION DRUGS BY THE HEALTH PLAN FOR PARTIC-
13 IPANTS IN THE STATE, THE ADMINISTRATION OR MANAGEMENT OF PRESCRIPTION
14 DRUG BENEFITS PROVIDED BY A HEALTH PLAN OR INSURER FOR THE BENEFIT OF
15 PARTICIPANTS, OR ANY OF THE SERVICES LISTED IN PARAGRAPHS (A) THROUGH
16 (G) OF THIS SUBDIVISION THAT ARE PROVIDED WITH REGARD TO THE ADMINIS-
17 TRATION OF PARTICIPANTS' PHARMACY BENEFITS:
18 (A) MAIL SERVICE PHARMACY;
19 (B) SPECIALTY PHARMACY;
20 (C) CLAIMS PROCESSING, RETAIN NETWORK MANAGEMENT AND PAYMENT OF CLAIMS
21 TO PHARMACIES FOR PRESCRIPTION DRUGS DISPENSED TO PARTICIPANTS;
22 (D) CLINICAL FORMULARY DEVELOPMENT AND MANAGEMENT SERVICES;
23 (E) REBATE CONTRACTING AND ADMINISTRATION;
24 (F) PATIENT COMPLIANCE, THERAPEUTIC INTERVENTION AND GENERIC SUBSTI-
25 TUTION PROGRAMS; AND
26 (G) DISEASE MANAGEMENT PROGRAMS.
27 6. "PATIENT" MEANS AN INDIVIDUAL WHO RECEIVES PRESCRIPTION DRUG BENE-
28 FITS FROM A HEALTH PLAN OR PBM.
29 7. "THERAPEUTIC ALTERNATIVE PRESCRIPTION DRUG" MEANS A PRESCRIPTION
30 DRUG WITH THE SAME OR SIMILAR INDICATIONS TO ANOTHER PRESCRIPTION DRUG
31 BUT WHICH, WHETHER A SINGLE SOURCE OR MULTIPLE SOURCE PRODUCT, IS NOT A
32 GENERIC OF, OR LISTED AS A THERAPEUTICALLY EQUIVALENT VERSION OF, THE
33 OTHER PRESCRIPTION DRUG ON THE LIST REQUIRED BY PARAGRAPH (O) OF SUBDI-
34 VISION ONE OF SECTION TWO HUNDRED SIX OF THIS CHAPTER.
35 8. "PRESCRIPTION DRUG SWITCH" MEANS AN ATTEMPT BY A HEALTH PLAN OR PBM
36 TO ENCOURAGE HEALTH CARE PROVIDERS WHO HAVE PRESCRIBED A CERTAIN
37 PRESCRIPTION DRUG PRODUCT TO THEIR PATIENTS TO CHANGE THE PRESCRIPTION
38 DRUG PRODUCT WHEN SUCH AN ATTEMPT IS PART OF A CONCERTED EFFORT TO
39 EFFECT ON THE PART OF THE HEALTH PLAN OR PBM TO HAVE SAID HEALTH CARE
40 PROVIDER CHANGE SAID PRESCRIPTION DRUG PRODUCT IN EXCHANGE FOR ANYTHING
41 OF AN ECONOMIC VALUE PROVIDED DIRECTLY OR INDIRECTLY BY THE HEALTH PLAN
42 OR PBM.
43 S 285-A. UNLAWFUL PAYMENTS WITH RESPECT TO HEALTH CARE PROVIDER
44 PRESCRIBING PRACTICES. (A) IMPROPER PRESCRIPTION DRUG SWITCH PAYMENTS.
45 NO HEALTH PLAN OR PBM SHALL, BY CONTRACT, WRITTEN POLICY OR PROCEDURE OR
46 ANY OTHER AGREEMENT OR COURSE OF CONDUCT, OFFER OR FURNISH PAYMENT OR
47 ANY OTHER INCENTIVE TO A HEALTH CARE PROVIDER TO COMPLY WITH A
48 PRESCRIPTION DRUG SWITCH AS DEFINED IN THIS ARTICLE.
49 (B) OTHER IMPROPER PAYMENTS RELATING TO HEALTH CARE PROVIDER PRESCRIB-
50 ING DECISIONS. NO HEALTH PLAN OR PBM SHALL, BY CONTRACT, WRITTEN POLICY
51 OR PROCEDURE OR ANY OTHER AGREEMENT OR COURSE OF CONDUCT, OFFER OR
52 FURNISH PAYMENT OR ANY OTHER INCENTIVE TO A HEALTH CARE PROVIDER TO
53 COMPLY WITH A DIRECTION TO PRESCRIBE A SPECIFIC PRESCRIPTION DRUG OR
54 WITH FORMULARY OR OTHER GUIDELINES FOR SELECTION OF PRESCRIPTION DRUG
55 PRODUCTS, OR PROVIDE ANY DISINCENTIVE FOR NON-COMPLIANCE.
A. 4787 3
1 (C) GENERIC SUBSTITUTION EXCEPTED. NOTHING IN THIS SECTION PROHIBITS A
2 HEALTH PLAN OR PBM, BY CONTRACT, WRITTEN POLICY OR PROCEDURE OR ANY
3 OTHER AGREEMENT OR COURSE OF CONDUCT, FROM OFFERING OR FURNISHING
4 PAYMENT OR ANY OTHER INCENTIVE TO A HEALTH CARE PROVIDER FOR EFFECTING
5 GENERIC SUBSTITUTIONS OF PRESCRIPTION DRUG PRODUCTS, OR PROVIDING ANY
6 DISINCENTIVE FOR FAILING TO EFFECT SUCH SUBSTITUTION.
7 S 285-B. NO RETALIATION AGAINST HEALTH CARE PROVIDERS. IT SHALL BE
8 UNLAWFUL FOR ANY HEALTH PLAN OR PBM TO DEPRIVE OR THREATEN TO DEPRIVE
9 ANY HEALTH CARE PROVIDER OF EMPLOYMENT OR TO TERMINATE THE HEALTH CARE
10 PROVIDER'S ENGAGEMENT FOR SERVICES, TAKE OR THREATEN TO TAKE ANY RETALI-
11 ATORY ACTION AGAINST ANY HEALTH CARE PROVIDER, OR DIRECTLY OR INDIRECTLY
12 INTIMIDATE, THREATEN, COERCE, COMMAND OR ATTEMPT TO INTIMIDATE, THREAT-
13 EN, COERCE, OR COMMAND ANY HEALTH CARE PROVIDER BECAUSE SUCH HEALTH CARE
14 PROVIDER HAS MADE PRESCRIBING CHOICES FOR PATIENTS THAT DO NOT CONFORM
15 TO A DIRECTION TO PRESCRIBE A SPECIFIC PRESCRIPTION DRUG OR WITH FORMU-
16 LARY OR OTHER GUIDELINES FOR SELECTION OF PRESCRIPTION DRUG PRODUCTS,
17 PROVIDED THAT SUCH DECISIONS ARE BASED ON THE HEALTH CARE PROVIDER'S
18 INDEPENDENT CLINICAL JUDGMENT REGARDING THE APPROPRIATE PRESCRIPTION
19 DRUG FOR EACH PATIENT FOR WHOM THE NON-CONFORMING CHOICE HAS BEEN MADE.
20 S 285-C. ENFORCEMENT. (A) ANY HEALTH CARE PROVIDER THAT HAS BEEN
21 INJURED BY REASON OF THE VIOLATION BY A HEALTH PLAN OR PBM OF SECTION
22 TWO HUNDRED EIGHTY-FIVE-B OF THIS ARTICLE MAY BRING AN ACTION FOR EQUI-
23 TABLE RELIEF AND TO RECOVER THE PROVIDER'S ACTUAL DAMAGES AND A CIVIL
24 PENALTY TO BE PAID TO THE HEALTH CARE PROVIDER NOT TO EXCEED THREE TIMES
25 THE HEALTH CARE PROVIDER'S ACTUAL DAMAGES.
26 (B) THE COMMISSIONER MAY ASSESS A CIVIL PENALTY OF UP TO TWENTY-FIVE
27 THOUSAND DOLLARS FOR EACH VIOLATION OF SECTION TWO HUNDRED EIGHTY-FIVE-A
28 OF THIS ARTICLE.
29 S 2. This act shall take effect immediately.
