§ 4329 — Prescription drug coverage

§ 4329. Prescription drug coverage. (a) Every corporation subject to\nthe provisions of this article that issues a contract that provides\ncoverage for prescription drugs shall, with respect to the prescription\ndrug coverage, 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 contract issued by a corporation subject to the\nprovisions of this article that provides coverage for prescription drugs\nshall include in the contract a process that allows an insured, the\ninsured's designee, or the insured's prescribing health care provider to\nrequest a formulary exception. With respect to the process for such a\nformulary exception, a corporation shall follow the process and\nprocedures specified in article forty-nine of this chapter and article\nforty-nine of the public health law, except as otherwise provided in\nparagraphs two, three, four and five of this subsection.\n (2) (A) A corporation shall have a process for an insured, the\ninsured's designee, or the insured's prescribing health care provider to\nrequest a standard review that is not based on exigent circumstances of\na formulary exception for a prescription drug that is not covered by the\ncontract.\n (B) A corporation 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) A corporation 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) A corporation shall have a process for an insured, the\ninsured's designee, or the insured's prescribing health care provider to\nrequest an expedited review based on exigent circumstances of a\nformulary exception for a prescription drug is not covered by the\ncontract.\n (B) A corporation 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) A corporation that grants an exception based on exigent\ncircumstances shall provide coverage of the non-formulary prescription\ndrug for the duration of the exigent circumstances.\n (4) A corporation that denies an exception request under paragraph two\nor three 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 corporation to\ntreat the insured.\n (5) (A) If a corporation 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 and 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 corporation, 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 corporation, 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 corporation, 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 corporation, 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 and 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 corporation 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 corporation's denial of\na standard exception request under paragraph two of this subsection,\nthen the corporation shall provide coverage of the non-formulary\nprescription drug for the duration of the prescription, including\nrefills. If an external appeal agent overturns the corporation's denial\nof an expedited exception request under paragraph three of this\nsubsection, then the corporation shall provide coverage of the\nnon-formulary prescription drug for the duration of the exigent\ncircumstances.\n * (c) (1) Except as otherwise provided in paragraph three of this\nsubsection, a corporation 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) A corporation with a formulary that includes two or more tiers\nof benefits providing for different deductibles, copayments or\ncoinsurance applicable to prescription drugs in each tier may move a\nprescription drug to a tier with a larger deductible, copayment or\ncoinsurance if an AB-rated generic equivalent or interchangeable\nbiological product for such prescription drug is added to the formulary\nat the same time.\n (B) A corporation may remove a prescription drug from a formulary if\nthe federal Food and Drug Administration determines that such\nprescription drug should be removed from the market, including new\nutilization management restrictions issued pursuant to federal Food and\nDrug Administration safety concerns.\n (C) A corporation 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) A corporation 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 corporation's online formulary and in any prescription\ndrug finder system that the corporation 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 contract issued by a corporation subject to the provisions\nof this article that provides coverage for prescription drugs shall\ninclude in the contract a process that allows an insured, the insured's\ndesignee, or the insured's prescribing health care provider to\nimmediately obtain, on the insured's behalf, an additional thirty-day\nsupply of any current prescription of the insured, except as provided in\nsection two hundred seventy-eight-a of the public health law, at the\nsame level of coverage as a normal refill of such prescription drug upon\nthe declaration of a state disaster emergency pursuant to section\ntwenty-eight of the executive law.\n * NB There are 2 sb (c)'s\n