S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5401
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               March 4, 2021
                                ___________
 
 Introduced  by  Sen. REICHLIN-MELNICK -- read twice and ordered printed,
   and when printed to be committed to the Committee on Social Services
 
 AN ACT to amend the social services law, in relation to the  pricing  of
   single  source brand-name maintenance medication for which there is no
   National Average Drug Acquisition Cost pricing

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    Paragraph  (b) of subdivision 9 of section 367-a of the
 social services law, as amended by section 3 of part C of chapter 58  of
 the  laws of 2004, subparagraphs (i) and (ii) as amended by section 7 of
 part D of chapter 57 of the laws of 2017 and subparagraph (iii) as added
 by section 29 of part E of chapter 63 of the laws of 2005, is amended to
 read as follows:
   (b) for drugs dispensed by pharmacies:
   (i) (A) if the drug dispensed is  a  generic  prescription  drug,  the
 lower  of:  (1) an amount equal to the national average drug acquisition
 cost set by the federal centers for medicare and medicaid  services  for
 the  drug,  if  any,  or  if such amount if not available, the wholesale
 acquisition cost of the drug based on the package size  dispensed  from,
 as reported by the prescription drug pricing service used by the depart-
 ment, less seventeen and one-half percent thereof; (2) the federal upper
 limit, if any, established by the federal centers for medicare and medi-
 caid  services;  (3)  the state maximum acquisition cost, if any, estab-
 lished pursuant to  paragraph  (e)  of  this  subdivision;  or  (4)  the
 dispensing  pharmacy's  usual and customary price charged to the general
 public; (B) if the drug dispensed is available without a prescription as
 required by section sixty-eight hundred ten of the education law but  is
 reimbursed as an item of medical assistance pursuant to paragraph (a) of
 subdivision  four  of  section three hundred sixty-five-a of this title,
 the lower of (1) an amount equal to the national average  drug  acquisi-
 tion  cost set by the federal centers for medicare and medicaid services
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09781-01-1

 S. 5401                             2
 
 for the drug, if any, or if such amount is not available, the  wholesale
 acquisition  cost  of the drug based on the package size dispensed from,
 as reported by the prescription drug pricing service used by the depart-
 ment,  (2)  the  federal upper limit, if any, established by the federal
 centers for medicare and medicaid services; (3) the state maximum acqui-
 sition cost if any, established pursuant to paragraph (e) of this subdi-
 vision; or (4) the  dispensing  pharmacy's  usual  and  customary  price
 charged to the general public;
   (ii)  if  the  drug  dispensed  is a brand-name prescription drug, the
 lower of:
   (A) an amount equal to the national average drug acquisition cost  set
 by  the federal centers for medicare and medicaid services for the drug,
 if any, or if such amount is not available,  the  wholesale  acquisition
 cost  of  the drug based on the package size dispensed from, as reported
 by the prescription drug pricing service used by  the  department,  less
 three and three-tenths percent thereof; or (B) the dispensing pharmacy's
 usual and customary price charged to the general public; [and]
   (iii) notwithstanding subparagraphs (i) and (ii) of this paragraph and
 paragraphs  (d)  and (e) of this subdivision, if the drug dispensed is a
 drug that has been purchased from a manufacturer  by  a  covered  entity
 pursuant  to  section  340B of the federal public health service act (42
 USCA § 256b), the actual amount paid by such covered entity pursuant  to
 such section, plus the reasonable administrative costs, as determined by
 the  commissioner,  incurred  by  the covered entity or by an authorized
 contract pharmacy in connection with the purchase and dispensing of such
 drug and the tracking of such transactions. For purposes of this subpar-
 agraph, a "covered entity" is an entity that meets the  requirements  of
 paragraph four of subsection (a) of such section, that elects to partic-
 ipate in the program established by such section, and that causes claims
 for  payment  for  drugs covered by this subparagraph to be submitted to
 the medical assistance program, either directly or through an authorized
 contract pharmacy. No medical assistance  payments  may  be  made  to  a
 covered entity or to an authorized contract pharmacy of a covered entity
 for  drugs that are eligible for purchase under the section 340B program
 and are dispensed on an outpatient basis  to  patients  of  the  covered
 entity, other than under the provisions of this subparagraph. Pharmacies
 submitting  claims  for  reimbursement  of  drugs  purchased pursuant to
 section 340B of the public health service act shall notify  the  depart-
 ment  that  the  claim  is eligible for purchase under the 340B program,
 consistent with claiming instructions issued by the department to  iden-
 tify such claims; AND
   (IV)  IF THE DRUG IS A SINGLE SOURCE BRAND-NAME MAINTENANCE MEDICATION
 FOR WHICH THERE IS NO NATIONAL AVERAGE DRUG ACQUISITION COST PRICING, IT
 SHALL BE WHOLESALE ACQUISITION COST.
   § 2.  Paragraph (b) of subdivision 9 of section 367-a  of  the  social
 services law, as added by chapter 170 of the laws of 1994, is amended to
 read as follows:
   (b) for drugs dispensed by pharmacies:
   (i)  if  the drug dispensed is a multiple source prescription drug for
 which an upper limit has been set by the federal health  care  financing
 administration,  an amount equal to the specific upper limit set by such
 federal agency for the multiple source prescription drug[, and];
   (ii) if the drug dispensed is a multiple source prescription drug or a
 brand-name prescription drug for which no specific upper limit has  been
 set  by such federal agency, the lower of the estimated acquisition cost
 of such drug to pharmacies,  or  the  dispensing  pharmacy's  usual  and

 S. 5401                             3

 customary  price  charged  to  the general public. Estimated acquisition
 cost means the average wholesale price of a prescription drug based upon
 the package size dispensed from, as reported by  the  prescription  drug
 pricing  service  used  by the department, less ten percent thereof, and
 updated monthly by the department; AND
   (III) IF THE DRUG IS A SINGLE SOURCE BRAND-NAME MAINTENANCE MEDICATION
 FOR WHICH THERE IS NO NATIONAL AVERAGE DRUG ACQUISITION COST PRICING, IT
 SHALL BE WHOLESALE ACQUISITION COST.
   § 3. This act shall take effect on the ninetieth day  after  it  shall
 have  become  a  law;  provided  that the amendments to paragraph (b) of
 subdivision 9 of section 367-a  of  the  social  services  law  made  by
 section  one of this act shall be subject to the  expiration  and rever-
 sion of such subdivision pursuant to section 4 of chapter 19 of the laws
 of 1998, as amended, when upon such date the provisions of  section  two
 of  this  act  shall  take  effect.  Effective immediately the addition,
 amendment and/or repeal of any rule  or  regulation  necessary  for  the
 implementation  of  this  act on its effective date are authorized to be
 made and completed on or before such date.