NY State Senate Bill 2021-S9043

Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 05, 2022	referred to health

co-Sponsors

2021-S9043 (ACTIVE) - Details

See Assembly Version of this Bill:: A7200
Current Committee:: Senate Health
Law Section:: Social Services Law
Laws Affected:: Rpld Part FFF §§1 & 1-a, Chap 56 of 2020; add §365-i, rpld §364-j sub 4 ¶(u), subs 25 - 26-b, Soc Serv L; amd §273, Pub Health L
Versions Introduced in 2023-2024 Legislative Session:: S3466

2021-S9043 (ACTIVE) - Summary

Provides that prescription drugs eligible for reimbursement shall be provided and paid for under the preferred drug program and the clinical drug review program; restores pharmacy benefits under Medicaid managed care.

2021-S9043 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S9043

SPONSOR: RIVERA
 
TITLE OF BILL:

An act to amend the social services law, in relation to prescription
drugs eligible for Medicaid coverage; to amend the public health law, in
relation to prior authorization under the preferred drug program; to
repeal certain provisions of part FFF of chapter 56 of the laws of 2020
directing the department of health to remove the pharmacy benefit from
the managed care benefit package, relating to restoring such benefits;
and to repeal certain provisions of the social services law, relating to
coverage for certain prescription drugs under Medicaid managed care
programs

 
PURPOSE OR GENERAL IDEA OF BILL:

To provide the Medicaid drug benefit through utilization of the
preferred drug program (PDP) under Public Health Law Art. 2-A, rather
than through individual Medicaid managed care plan drug benefits.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 provides for legislative findings.

Section 2 repeals sections 1 and 1-a of part FF of chapter 56 of the
laws of 2020, related to prescription drugs under the Medicaid program.

Section 3 amends the social services law to add a new section 365-i
related to prescription drugs in the Medicaid program. Prescription
drugs eligible for reimbursement in accordance with this article shall
be paid for by the preferred drug and clinical drug review programs.
This shall apply for individuals enrolled in a managed care provider,
and a prescription made under the 340B program. The provider shall pay
for drugs provided under the 340B program and shall reimburse the
Department of Health for the net cost to the department for prescription
drugs provided.

Section 4 amends subdivision 3 of section 273 of the public health law
to provide those prescriptions would be subject to the "prescriber
prevails" provisions of the preferred drug program.

Section 5 repeals subdivisions 25, 25-a, 26, 26-b and paragraph u of
subdivision 4 of section 364-j of the social services law.

Section 6 provides for a severability clause.

Section 7 provides for the effective date, which is immediately with the
exception of sections 1, 2, 3 4, and 5 which shall take effect 180 days
after it shall become a law.

 
JUSTIFICATION:

The Preferred Drug Program was established in 2005. Under the PDP, the
clinical drug review board (DRB) evaluates the clinical effectiveness
and safety of drugs, the potential impact on patient care and on the
health of special populations considering the latest peer-reviewed
research. The DRB may place a drug or class of drugs either on the
preferred drug list (PDL) or require prior authorization, which if
declined, may be overcome using "prescriber prevails," so that a pres-
criber can make sure that the patient receives the needed medication.
The PDP initially administered the drug benefit for the whole Medicaid
program, including Medicaid managed care.

During the several years that the PDP operated for all Medicaid
patients, very few prescriptions were for non-preferred drugs because
(a) prescribers had confidence in the legitimacy of the list, (b) the
required consultation with the system was enough of a "speed bump" that
prescribers stuck to the list unless they felt strongly otherwise, and
drug companies were willing to pay the required rebates to get their
drugs on the list, at an estimated average of $2B per year.

In 2011, the Legislature enacted the Cuomo administration proposal to
end the carve-out and instead have each Medicaid managed care plan nego-
tiate on its own with drug companies. The administration insisted the
managed care plans could do a better job of negotiating, even though the
state was negotiating for a much larger population than any one managed
care plan. In 2020, the administration reversed course, enacting a plan
to return the drug benefit to the PDP by May of 2021, and in the inter-
im, find a solution to the problem faced by providers in the federal
340B program who would lose operating revenue from being carved out from
managed care. With the 340B issue still not resolved by March 2021, the
administration agreed to a delay of the carve-out plan for two years.

This bill would restore to the PDP the power to negotiate drug prices
for the entire Medicaid population over six million "covered lives" - by
having the PDP administer the drug benefit, at the same time keeping the
340B program intact within managed care. Managed care plan enrollees
would use their plan membership card for drug benefits. Medicaid would
bill each Medicaid managed care plan for the drugs provided to its
enrollees and return the amount through the premium rate that the state
pays the plans. This would be consistent with integrated care, care
coordination, and "value-based" payment models. It would more effec-
tively hold the managed care plan or provider network accountable for
the total cost of care, while still giving the health plan (and the
state) the benefit of lower drug prices.

 
PRIOR LEGISLATIVE HISTORY:

2015-2016: A.9271 - reported to Ways and Means committee

2017-2018:  A.4233 - reported to Ways and Means committee

 
FISCAL IMPLICATIONS:

Undetermined savings.

 
EFFECTIVE DATE:;
Immediately, except for sections 1-5 which shall be effective one
hundred and eighty days after becoming law.

2021-S9043 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9043
 
                             I N  S E N A T E
 
                                May 5, 2022
                                ___________
 
 Introduced  by  Sens. RIVERA, REICHLIN-MELNICK -- read twice and ordered
   printed, and when printed to be committed to the Committee on Health
 
 AN ACT to amend the social services law,  in  relation  to  prescription
   drugs  eligible for Medicaid coverage; to amend the public health law,
   in relation to prior authorization under the preferred  drug  program;
   to  repeal certain provisions of part FFF of chapter 56 of the laws of
   2020 directing the department of health to remove the pharmacy benefit
   from the managed care benefit  package,  relating  to  restoring  such
   benefits; and to repeal certain provisions of the social services law,
   relating  to  coverage  for  certain prescription drugs under Medicaid
   managed care programs
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative findings. This legislature finds that the costs
 of  many prescription drugs in the market have been escalating unreason-
 ably. The preferred drug program and the clinical  drug  review  program
 under  the  public  health law provide effective mechanisms for assuring
 access to quality, effective and safe drugs to  patients  at  reasonable
 cost.  Providing  prescription  drugs  to  Medicaid  managed health care
 provider participants through these programs will maximize the  Medicaid
 program's  ability  to  negotiate  more  substantial  rebates  with drug
 manufacturers (effectively, lower  prices),  while  protecting  Medicaid
 managed care provider participants.
   § 2. Sections 1 and 1-a of part FFF of chapter 56 of the laws of 2020,
 relating to prescription drugs under the Medicaid program, are REPEALED.
   §  3. The social services law is amended by adding a new section 365-i
 to read as follows:
   § 365-I. PRESCRIPTION DRUGS IN MEDICAID. 1. THE DEFINITIONS  OF  TERMS
 IN  SECTION  TWO HUNDRED SEVENTY OF THE PUBLIC HEALTH LAW SHALL APPLY TO
 THIS SECTION.   AS USED IN THIS  SECTION,  UNLESS  THE  CONTEXT  CLEARLY
 REQUIRES OTHERWISE, "MANAGED CARE PROVIDER" MEANS A MANAGED CARE PROVID-
 ER  UNDER  SECTION  THREE  HUNDRED  SIXTY-FOUR-J  OF  THIS ARTICLE, OR A
 MANAGED LONG TERM CARE PLAN UNDER SECTION FORTY-FOUR HUNDRED THREE-F  OF
 THE PUBLIC HEALTH LAW.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11099-03-2
 S. 9043                             2
 
   2.  PRESCRIPTION  DRUGS  ELIGIBLE FOR REIMBURSEMENT UNDER THIS ARTICLE
 SHALL BE PROVIDED AND PAID FOR UNDER THE PREFERRED DRUG PROGRAM AND  THE
 CLINICAL  DRUG  REVIEW  PROGRAM  UNDER TITLE ONE OF ARTICLE TWO-A OF THE
 PUBLIC HEALTH LAW, EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISION THREE  OF
 THIS SECTION.
   3.  THIS SUBDIVISION APPLIES WHERE THE ELIGIBLE INDIVIDUAL IS ENROLLED
 IN A MANAGED CARE PROVIDER AND A PRESCRIPTION FOR THE ELIGIBLE  INDIVID-
 UAL  IS MADE UNDER SECTION 340B OF THE FEDERAL PUBLIC HEALTH SERVICE ACT
 (THE "340B PROGRAM"). THE MANAGED CARE PROVIDER SHALL PAY FOR THE  DRUGS
 UNDER  THE  340B  PROGRAM. HOWEVER, THE PRESCRIPTION SHALL BE SUBJECT TO
 SECTION TWO HUNDRED SEVENTY-THREE (PREFERRED DRUG PROGRAM PRIOR AUTHORI-
 ZATION) AND SECTION  TWO  HUNDRED  SEVENTY-FOUR  (CLINICAL  DRUG  REVIEW
 PROGRAM) OF THE PUBLIC HEALTH LAW.
   4.  THE  MANAGED  CARE  PROVIDER  SHALL  ACCOUNT  TO AND REIMBURSE THE
 DEPARTMENT FOR THE NET COST TO THE  DEPARTMENT  FOR  PRESCRIPTION  DRUGS
 PROVIDED  TO  ELIGIBLE INDIVIDUALS WHO RECEIVE MEDICAL SERVICES FROM THE
 MANAGED CARE PROVIDER.  CAPITATION PAYMENTS BY THE  DEPARTMENT  TO  SUCH
 MANAGED  CARE PROVIDER SHALL INCLUDE A COMPONENT FOR REIMBURSEMENTS PAID
 UNDER THIS SUBDIVISION.
   § 4. Paragraph (b) of subdivision 3  of  section  273  of  the  public
 health  law,  as added by section 10 of part C of chapter 58 of the laws
 of 2005, is amended to read as follows:
   (b) In the event that the patient does not meet the criteria in  para-
 graph  (a)  of  this  subdivision, the prescriber may provide additional
 information to the program to justify the use  of  a  prescription  drug
 that  is  not  on  the  preferred drug list. The program shall provide a
 reasonable opportunity for a prescriber to reasonably present his or her
 justification of prior authorization. If, after  consultation  with  the
 program, the prescriber, in his or her reasonable professional judgment,
 determines  that  the  use  of  a  prescription  drug that is not on the
 preferred drug list is warranted, the prescriber's  determination  shall
 be  final.   HOWEVER, THE PRESCRIBER'S DETERMINATION SHALL NOT BE FINAL:
 (I) WHERE THE PREFERRED DRUG IS A GENERIC DRUG SUBJECT  TO  SUBPARAGRAPH
 (I)  OF  PARAGRAPH  (A-1)  OF  SUBDIVISION FOUR OF SECTION THREE HUNDRED
 SIXTY-FIVE-A OF THE  SOCIAL  SERVICES  LAW  (MANDATORY  GENERIC  SUBSTI-
 TUTION),  AND EVEN IF THE PRESCRIBER HAS INDICATED THAT THE PRESCRIPTION
 SHALL BE DISPENSED AS WRITTEN; OR (II) IF IT IS FOR THE USE  OF  A  DRUG
 THAT IS NOT CONSISTENT WITH FOOD AND DRUG ADMINISTRATION-APPROVED LABEL-
 ING  OR  SUPPORTED BY ONE OR MORE OFFICIAL COMPENDIA REFERENCES, INCLUD-
 ING, BUT NOT LIMITED TO, THE AMERICAN HOSPITAL FORMULARY SERVICE (AHFS),
 THE DRUGDEX DRUG INFORMATION SYSTEM AND THE UNITED STATES PHARMACOPEIA.
   § 5. Subdivisions 25, 25-a, 26 and 26-b, and paragraph (u) of subdivi-
 sion 4 of section 364-j of the social services law are REPEALED.
   § 6. Severability. If any provision of this act, or any application of
 any provision of this act, is held to be invalid, or to  violate  or  be
 inconsistent  with  any federal law or regulation, that shall not affect
 the validity or effectiveness of any other provision of this act, or  of
 any  other  application of any provision of this act, which can be given
 effect without that provision or  application;  and  to  that  end,  the
 provisions and applications of this act are severable.
   §  7. This act shall take effect immediately, except that sections one
 through five of this act shall take effect on the one hundred  eightieth
 day  after  they  shall  have become a law.   Effective immediately, the
 commissioner of health shall make regulations  and  take  other  actions
 reasonably necessary to implement this act when it takes effect.

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Senate Bill S9043

Sponsored By

Archive: Last Bill Status - In Senate Committee Health Committee

co-Sponsors

2021-S9043 (ACTIVE) - Details

2021-S9043 (ACTIVE) - Summary

2021-S9043 (ACTIVE) - Sponsor Memo

2021-S9043 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S9043

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Sponsored By

Gustavo Rivera

Archive: Last Bill Status - In Senate Committee Health Committee

co-Sponsors

Elijah Reichlin-Melnick

2021-S9043 (ACTIVE) - Details

2021-S9043 (ACTIVE) - Summary

2021-S9043 (ACTIVE) - Sponsor Memo

2021-S9043 (ACTIVE) - Bill Text download pdf

Comments