§ 3242 — Prescription drug coverage

§ 3242. Prescription drug coverage. (a) Every insurer that delivers or\nissues for delivery in this state a policy that provides coverage for\nprescription drugs shall, with respect to the prescription drug\ncoverage, publish an up-to-date, accurate, and complete list of all\ncovered prescription drugs on its formulary drug list, including any\ntiering structure that it has adopted and any restrictions on the manner\nin which a prescription drug may be obtained, in a manner that is easily\naccessible to insureds and prospective insureds. The formulary drug list\nshall clearly identify the preventive prescription drugs that are\navailable without annual deductibles or coinsurance, including\nco-payments.\n (b) (1) Every policy delivered or issued for delivery in this state\nthat provides coverage for prescription drugs shall include in the\npolicy a process that allows an insured, the insured's designee, or the\ninsured's prescribing health care provider to request a formulary\nexception. With respect to the process for such a formulary exception,\nan insurer shall follow the process and procedures specified in article\nforty-nine of this chapter and article forty-nine of the public health\nlaw, except as otherwise provided in paragraphs two, three, four and\nfive of this subsection.\n (2) (A) An insurer shall have a process for an insured, the insured's\ndesignee, or the insured's prescribing health care provider to request a\nstandard review that is not based on exigent circumstances of a\nformulary exception for a prescription drug that is not covered by the\npolicy.\n (B) An insurer shall make a determination on a standard exception\nrequest that is not based on exigent circumstances and notify the\ninsured or the insured's designee and the insured's prescribing health\ncare provider by telephone of its coverage determination no later than\nseventy-two hours following receipt of the request.\n (C) An insurer that grants a standard exception request that is not\nbased on exigent circumstances shall provide coverage of the\nnon-formulary prescription drug for the duration of the prescription,\nincluding refills.\n (D) For the purpose of this subsection, "exigent circumstances" means\nwhen an insured is suffering from a health condition that may seriously\njeopardize the insured's life, health, or ability to regain maximum\nfunction or when an insured is undergoing a current course of treatment\nusing a non-formulary prescription drug.\n (3) (A) An insurer shall have a process for an insured, the insured's\ndesignee, or the insured's prescribing health care provider to request\nan expedited review based on exigent circumstances of a formulary\nexception for a prescription drug that is not covered by the policy.\n (B) An insurer shall make a determination on an expedited review\nrequest based on exigent circumstances and notify the insured or the\ninsured's designee and the insured's prescribing health care provider by\ntelephone of its coverage determination no later than twenty-four hours\nfollowing receipt of the request.\n (C) An insurer that grants an exception based on exigent circumstances\nshall provide coverage of the non-formulary prescription drug for the\nduration of the exigent circumstances.\n (4) An insurer that denies an exception request under paragraph two or\nthree of this subsection shall provide written notice of its\ndetermination to the insured or the insured's designee and the insured's\nprescribing health care provider within three business days of receipt\nof the exception request. The written notice shall be considered a final\nadverse determination under section four thousand nine hundred four of\nthis chapter or section four thousand nine hundred four of the public\nhealth law. Written notice shall also include the name or names of\nclinically appropriate prescription drugs covered by the insurer to\ntreat the insured.\n (5) (A) If an insurer denies a request for an exception under\nparagraph two or three of this subsection, the insured, the insured's\ndesignee, or the insured's prescribing health care provider shall have\nthe right to request that such denial be reviewed by an external appeal\nagent certified by the superintendent pursuant to section four thousand\nnine hundred eleven of this chapter in accordance with article\nforty-nine of this chapter or article forty-nine of the public health\nlaw.\n (B) An external appeal agent shall make a determination on the\nexternal appeal and notify the insurer, the insured or the insured's\ndesignee, and the insured's prescribing health care provider by\ntelephone of its determination no later than seventy-two hours following\nthe external appeal agent's receipt of the request, if the original\nrequest was a standard exception request under paragraph two of this\nsubsection. The external appeal agent shall notify the insurer, the\ninsured or the insured's designee, and the insured's prescribing health\ncare provider in writing of the external appeal determination within two\nbusiness days of rendering such determination.\n (C) An external appeal agent shall make a determination on the\nexternal appeal and notify the insurer, the insured or the insured's\ndesignee, and the insured's prescribing health care provider by\ntelephone of its determination no later than twenty-four hours following\nthe external appeal agent's receipt of the request, if the original\nrequest was an expedited exception request under paragraph three of this\nsubsection and the insured's prescribing health care provider attests\nthat exigent circumstances exist. The external appeal agent shall notify\nthe insurer, the insured or the insured's designee, and the insured's\nprescribing health care provider in writing of the external appeal\ndetermination within seventy-two hours of the external appeal agent's\nreceipt of the external appeal.\n (D) An external appeal agent shall make a determination in accordance\nwith subparagraph (A) of paragraph four of subsection (b) of section\nfour thousand nine hundred fourteen of this chapter or subparagraph (A)\nof paragraph (d) of subdivision two of section four thousand nine\nhundred fourteen of the public health law. When making a determination,\nthe external appeal agent shall consider whether the formulary\nprescription drug covered by the insurer will be or has been\nineffective, would not be as effective as the non-formulary prescription\ndrug, or would have adverse effects.\n (E) If an external appeal agent overturns the insurer's denial of a\nstandard exception request under paragraph two of this subsection, then\nthe insurer shall provide coverage of the non-formulary prescription\ndrug for the duration of the prescription, including refills. If an\nexternal appeal agent overturns the insurer's denial of an expedited\nexception request under paragraph three of this subsection, then the\ninsurer shall provide coverage of the non-formulary prescription drug\nfor the duration of the exigent circumstances.\n * (c)(1) Except as otherwise provided in paragraph three of this\nsubsection, an insurer shall not:\n (A) remove a prescription drug from a formulary;\n (B) move a prescription drug to a tier with a larger deductible,\ncopayment, or coinsurance if the formulary includes two or more tiers of\nbenefits providing for different deductibles, copayments or coinsurance\napplicable to the prescription drugs in each tier; or\n (C) add utilization management restrictions to a prescription drug on\na formulary, unless such changes occur at the time of enrollment,\nissuance or renewal of coverage.\n (2) Prohibitions provided in paragraph one of this subsection shall\napply beginning on the date on which a plan year begins and through the\nend of such plan year.\n (3) (A) An insurer with a formulary that includes two or more tiers of\nbenefits providing for different deductibles, copayments or coinsurance\napplicable to prescription drugs in each tier may move a prescription\ndrug to a tier with a larger deductible, copayment or coinsurance if an\nAB-rated generic equivalent or interchangeable biological product for\nsuch prescription drug is added to the formulary at the same time.\n (B) An insurer may remove a prescription drug from a formulary if the\nfederal Food and Drug Administration determines that such prescription\ndrug should be removed from the market, including new utilization\nmanagement restrictions issued pursuant to federal Food and Drug\nAdministration safety concerns.\n (C) An insurer with a formulary that includes two or more tiers of\nbenefits providing for different copayments applicable to prescription\ndrugs may move a prescription drug to a tier with a larger copayment\nduring the plan year, provided the change is not applicable to an\ninsured who is already receiving such prescription drug or has been\ndiagnosed with or presented with a condition on or prior to the start of\nthe plan year that is treated by such prescription drug or is a\nprescription drug that is or would be part of the insured's treatment\nregimen for such condition.\n (4) An insurer shall provide notice to insureds of the intent to\nremove a prescription drug from a formulary or alter deductible,\ncopayment or coinsurance requirements in the upcoming plan year, ninety\ndays prior to the start of the plan year. Such notice of impending\nformulary and deductible, copayment or coinsurance changes shall also be\nposted on the insurer's online formulary and in any prescription drug\nfinder system that the insurer provides to the public.\n (5) The provisions of this subsection shall not supersede the terms of\na collective bargaining agreement, or the rights of labor representation\ngroups to collectively bargain changes to the formularies.\n * NB There are 2 sb (c)'s\n * (c) Every policy delivered or issued for delivery in this state that\nprovides coverage for prescription drugs shall include in the policy a\nprocess that allows an insured, the insured's designee, or the insured's\nprescribing health care provider to immediately obtain, on the insured's\nbehalf, an additional thirty-day supply of any current prescription of\nthe insured, except as provided in section two hundred seventy-eight-a\nof the public health law, at the same level of coverage as a normal\nrefill of such prescription drug upon the declaration of a state\ndisaster emergency pursuant to section twenty-eight of the executive\nlaw.\n * NB There are 2 sb (c)'s\n