S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9893
 
                           I N  A S S E M B L Y
 
                             February 20, 2018
                                ___________
 
 Introduced by M. of A. BRINDISI -- read once and referred to the Commit-
   tee on Insurance
 
 AN ACT to amend the public health law and the insurance law, in relation
   to contracts between pharmacies and pharmacy benefit managers
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. The public health law is amended by adding  a  new  section
 280-c to read as follows:
   §  280-C.  CONTRACTS BETWEEN PHARMACIES AND PHARMACY BENEFIT MANAGERS.
 1. ON AND AFTER JANUARY FIRST, TWO THOUSAND NINETEEN,  NO  CONTRACT  FOR
 PHARMACY  SERVICES  ENTERED INTO IN THE STATE BETWEEN A HEALTH INSURANCE
 CARRIER OR A PHARMACY BENEFIT MANAGER, AS DEFINED IN SECTION TWO HUNDRED
 EIGHTY-A OF THIS ARTICLE, AND A PHARMACY,  PHARMACIST  OR  A  PHARMACY'S
 CONTRACTING  AGENT, SUCH AS A PHARMACY SERVICES ADMINISTRATIVE ORGANIZA-
 TION, SHALL CONTAIN A PROVISION  PROHIBITING  OR  PENALIZING,  INCLUDING
 THROUGH  INCREASED  UTILIZATION REVIEW, REDUCED PAYMENTS OR OTHER FINAN-
 CIAL DISINCENTIVES, A PHARMACIST'S DISCLOSURE TO AN INDIVIDUAL  PURCHAS-
 ING PRESCRIPTION MEDICATION OF INFORMATION REGARDING (A) THE COST OF THE
 PRESCRIPTION  MEDICATION  TO  THE INDIVIDUAL, OR (B) THE AVAILABILITY OF
 ANY THERAPEUTICALLY EQUIVALENT ALTERNATIVE  MEDICATIONS  OR  ALTERNATIVE
 METHODS  OF  PURCHASING  THE PRESCRIPTION MEDICATION, INCLUDING, BUT NOT
 LIMITED TO, PAYING A CASH PRICE, THAT ARE LESS EXPENSIVE THAN  THE  COST
 OF THE PRESCRIPTION MEDICATION TO THE INDIVIDUAL.
   2. ON AND AFTER JANUARY FIRST, TWO THOUSAND NINETEEN, NO HEALTH INSUR-
 ANCE  CARRIER OR PHARMACY BENEFIT MANAGER SHALL REQUIRE AN INDIVIDUAL TO
 MAKE A PAYMENT AT THE POINT OF SALE FOR A COVERED  PRESCRIPTION  MEDICA-
 TION  IN  AN AMOUNT GREATER THAN THE LESSER OF (A) THE APPLICABLE COPAY-
 MENT FOR SUCH PRESCRIPTION MEDICATION, (B) THE  ALLOWABLE  CLAIM  AMOUNT
 FOR  THE  PRESCRIPTION MEDICATION, OR (C) THE AMOUNT AN INDIVIDUAL WOULD
 PAY FOR THE PRESCRIPTION MEDICATION  IF  THE  INDIVIDUAL  PURCHASED  THE
 PRESCRIPTION MEDICATION WITHOUT USING A HEALTH BENEFIT PLAN OR ANY OTHER
 SOURCE  OF  PRESCRIPTION  MEDICATION  BENEFITS  OR  DISCOUNTS.  FOR  THE
 PURPOSES OF THIS SECTION, "ALLOWABLE CLAIM AMOUNT" MEANS THE AMOUNT  THE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13660-04-8

 A. 9893                             2

 HEALTH  INSURANCE  CARRIER OR PHARMACY BENEFIT MANAGER HAS AGREED TO PAY
 THE PHARMACY FOR THE PRESCRIPTION MEDICATION.
   3.  ANY  PROVISION  OF A CONTRACT THAT VIOLATES THE PROVISIONS OF THIS
 SECTION SHALL BE VOID AND UNENFORCEABLE. ANY GENERAL  BUSINESS  PRACTICE
 THAT  VIOLATES THE PROVISIONS OF THIS SECTION SHALL CONSTITUTE AN UNFAIR
 TRADE PRACTICE PURSUANT TO SECTION THREE HUNDRED FORTY  OF  THE  GENERAL
 BUSINESS  LAW.  THE  INVALIDITY  OR  UNENFORCEABILITY  OF  ANY  CONTRACT
 PROVISION UNDER THIS SUBSECTION SHALL NOT AFFECT ANY OTHER PROVISION  OF
 SUCH CONTRACT.
   4.  THE SUPERINTENDENT, AS DEFINED IN SECTION ONE HUNDRED SEVEN OF THE
 INSURANCE LAW, MAY ENFORCE THE PROVISIONS  OF  THIS  SECTION,  AND  UPON
 REQUEST,  AUDIT A CONTRACT FOR PHARMACY SERVICES FOR COMPLIANCE WITH THE
 PROVISIONS OF THIS SECTION.
   5. IN ANY ACTION BROUGHT UNDER SECTION  THREE  HUNDRED  FORTY  OF  THE
 GENERAL  BUSINESS  LAW, A DEFENDANT THAT SELLS, DISTRIBUTES OR OTHERWISE
 DISPOSES OF ANY DRUG OR DEVICE, AS DEFINED IN 21 USC 321 MAY NOT  ASSERT
 AS A DEFENSE THAT THE DEFENDANT DID NOT DEAL DIRECTLY WITH THE PERSON ON
 WHOSE  BEHALF  THE ACTION IS BROUGHT AND MAY, IN ORDER TO AVOID DUPLICA-
 TIVE LIABILITY, PROVE, AS A PARTIAL OR COMPLETE DEFENSE AGAINST A DAMAGE
 CLAIM, THAT ALL OR ANY PART OF AN  ALLEGED  OVERCHARGE  FOR  A  DRUG  OR
 DEVICE  ULTIMATELY  WAS  PASSED ON TO ANOTHER PERSON BY A PURCHASER OR A
 SELLER IN THE CHAIN OF MANUFACTURE, PRODUCTION OR  DISTRIBUTION  OF  THE
 DRUG OR DEVICE THAT PAID THE ALLEGED OVERCHARGE.
   §  2.  Section  3217-b of the insurance law is amended by adding a new
 subsection (l) to read as follows:
   (L) (1) NO INSURER SUBJECT TO THIS ARTICLE SHALL BY CONTRACT,  WRITTEN
 POLICY OR WRITTEN PROCEDURE PROHIBIT OR RESTRICT ANY HEALTH CARE PROVID-
 ER FROM DISCLOSURE OF (I) BILLED OR ALLOWED AMOUNTS, REIMBURSEMENT RATES
 OR  OUT-OF-POCKET  COSTS,  OR  (II)  ANY  DATA TO THE ALL PAYOR DATABASE
 (APD). SUCH INFORMATION MAY BE USED TO  ASSIST  CONSUMERS  AND  INSTITU-
 TIONAL  PURCHASERS  IN  MAKING INFORMED DECISIONS REGARDING THEIR HEALTH
 CARE AND INFORMED CHOICES AMONG HEALTH CARE PROVIDERS AND ALLOW  COMPAR-
 ISONS  BETWEEN  PRICES  PAID  BY  VARIOUS HEALTH CARRIERS TO HEALTH CARE
 PROVIDERS.
   (2) NO CONTRACT ENTERED INTO UNDER THIS ARTICLE BETWEEN A HEALTH  CARE
 PROVIDER, OR ANY AGENT OR VENDOR RETAINED BY THE HEALTH CARE PROVIDER TO
 PROVIDE  DATA  OR ANALYTICAL SERVICES TO EVALUATE AND MANAGE HEALTH CARE
 SERVICES PROVIDED TO THE INSURER'S PLAN PARTICIPANTS,  AND  THE  INSURER
 SHALL  CONTAIN  A  PROVISION  PROHIBITING  DISCLOSURE  OF  (I) BILLED OR
 ALLOWED AMOUNTS, REIMBURSEMENT RATES OR OUT-OF-POCKET COSTS, OR (II) ANY
 DATA TO THE ALL PAYOR DATABASE (APD). SUCH INFORMATION MAY  BE  USED  TO
 ASSIST  CONSUMERS  AND INSTITUTIONAL PURCHASERS IN MAKING INFORMED DECI-
 SIONS REGARDING THEIR HEALTH CARE AND INFORMED CHOICES AMONG HEALTH CARE
 PROVIDERS AND ALLOW COMPARISONS BETWEEN PRICES PAID  BY  VARIOUS  HEALTH
 CARRIERS TO HEALTH CARE PROVIDERS.
   (3)  IF  A  CONTRACT  DESCRIBED  IN  PARAGRAPH  ONE  OR  TWO  OF  THIS
 SUBSECTION, WHICHEVER IS APPLICABLE,  CONTAINS  A  PROVISION  PROHIBITED
 UNDER  THE APPLICABLE PARAGRAPHS, SUCH PROVISION SHALL BE VOID AND UNEN-
 FORCEABLE. THE INVALIDITY OR UNENFORCEABILITY OF ANY CONTRACT  PROVISION
 UNDER  THIS  SUBSECTION  SHALL  NOT  AFFECT  ANY OTHER PROVISION OF SUCH
 CONTRACT.
   § 3. Section 4325 of the insurance law is  amended  by  adding  a  new
 subsection (m) to read as follows:
   (M) (1) NO CORPORATION ORGANIZED UNDER THIS ARTICLE SHALL BY CONTRACT,
 WRITTEN POLICY OR WRITTEN PROCEDURE PROHIBIT OR RESTRICT ANY HEALTH CARE
 PROVIDER FROM DISCLOSURE OF (I) BILLED OR ALLOWED AMOUNTS, REIMBURSEMENT

 A. 9893                             3
 
 RATES OR OUT-OF-POCKET COSTS, OR (II) ANY DATA TO THE ALL PAYOR DATABASE
 (APD).  SUCH  INFORMATION  MAY  BE USED TO ASSIST CONSUMERS AND INSTITU-
 TIONAL PURCHASERS IN MAKING INFORMED DECISIONS  REGARDING  THEIR  HEALTH
 CARE  AND INFORMED CHOICES AMONG HEALTH CARE PROVIDERS AND ALLOW COMPAR-
 ISONS BETWEEN PRICES PAID BY VARIOUS  HEALTH  CARRIERS  TO  HEALTH  CARE
 PROVIDERS.
   (2) NO CONTRACT OR AGREEMENT ENTERED INTO UNDER THIS ARTICLE BETWEEN A
 HEALTH CARE PROVIDER, OR ANY AGENT OR VENDOR RETAINED BY THE HEALTH CARE
 PROVIDER  TO  PROVIDE DATA OR ANALYTICAL SERVICES TO EVALUATE AND MANAGE
 HEALTH CARE SERVICES PROVIDED TO THE INSURER'S  PLAN  PARTICIPANTS,  AND
 THE  INSURER  SHALL  CONTAIN  A  PROVISION PROHIBITING DISCLOSURE OF (A)
 BILLED OR ALLOWED AMOUNTS, REIMBURSEMENT RATES OR  OUT-OF-POCKET  COSTS,
 OR (B) ANY DATA TO THE ALL PAYOR DATABASE (APD). SUCH INFORMATION MAY BE
 USED TO ASSIST CONSUMERS AND INSTITUTIONAL PURCHASERS IN MAKING INFORMED
 DECISIONS  REGARDING THEIR HEALTH CARE AND INFORMED CHOICES AMONG HEALTH
 CARE PROVIDERS AND ALLOW COMPARISONS  BETWEEN  PRICES  PAID  BY  VARIOUS
 HEALTH CARRIERS TO HEALTH CARE PROVIDERS.
   (3)  IF  A  CONTRACT  DESCRIBED  IN  PARAGRAPH  ONE  OR  TWO  OF  THIS
 SUBSECTION, WHICHEVER IS APPLICABLE,  CONTAINS  A  PROVISION  PROHIBITED
 UNDER  THE APPLICABLE PARAGRAPHS, SUCH PROVISION SHALL BE VOID AND UNEN-
 FORCEABLE. THE INVALIDITY OR UNENFORCEABILITY OF  ANY  POLICY  PROVISION
 UNDER  THIS  SUBSECTION  SHALL  NOT  AFFECT  ANY OTHER PROVISION OF SUCH
 CONTRACT.
   § 4. This act shall take effect immediately and  shall  apply  to  all
 policies  and contracts issued, renewed, modified, altered or amended on
 or after such date.