N.Y. Insurance Law § 3242: Prescription drug coverage

§ 3242. Prescription drug coverage. * (a) Every insurer that delivers

or issues for delivery in this state a policy that provides coverage for

prescription drugs shall, with respect to the prescription drug

coverage, publish an up-to-date, accurate, and complete list of all

covered prescription drugs on its formulary drug list, including any

tiering structure that it has adopted and any restrictions on the manner

in which a prescription drug may be obtained, in a manner that is easily

accessible to insureds and prospective insureds. The formulary drug list

shall clearly identify the preventive prescription drugs that are

available without annual deductibles or coinsurance, including

co-payments.

* NB Effective until January 1, 2027

* (a) Every insurer that delivers or issues for delivery in this state

a policy that provides coverage for prescription drugs shall, with

respect to the prescription drug coverage, publish an up-to-date,

accurate, and complete list of all covered prescription drugs on its

formulary drug list, including any tiering structure that it has adopted

and any restrictions on the manner in which a prescription drug may be

obtained, in a manner that is easily accessible to insureds, prospective

insureds, health care providers, and other interested parties. The

formulary drug list shall clearly identify the preventive prescription

drugs that are available without annual deductibles or coinsurance,

including co-payments. A formulary drug list shall only be considered

easily accessible if:

(1) it can be viewed on the insurer's public website without requiring

an individual to create or access an account or enter a password or to

be covered under an insurance policy issued by the insurer; and

(2) an individual can easily discern which formulary drug list applies

to which plan, if an insurer offers more than one plan.

* NB Effective January 1, 2027

(b) (1) Every policy delivered or issued for delivery in this state

that provides coverage for prescription drugs shall include in the

policy a process that allows an insured, the insured's designee, or the

insured's prescribing health care provider to request a formulary

exception. With respect to the process for such a formulary exception,

an insurer shall follow the process and procedures specified in article

forty-nine of this chapter and article forty-nine of the public health

law, except as otherwise provided in paragraphs two, three, four and

five of this subsection.

(2) (A) An insurer shall have a process for an insured, the insured's

designee, or the insured's prescribing health care provider to request a

standard review that is not based on exigent circumstances of a

formulary exception for a prescription drug that is not covered by the

policy.

(B) An insurer shall make a determination on a standard exception

request that is not based on exigent circumstances and notify the

insured or the insured's designee and the insured's prescribing health

care provider by telephone of its coverage determination no later than

seventy-two hours following receipt of the request.

(C) An insurer that grants a standard exception request that is not

based on exigent circumstances shall provide coverage of the

non-formulary prescription drug for the duration of the prescription,

including refills.

(D) For the purpose of this subsection, "exigent circumstances" means

when an insured is suffering from a health condition that may seriously

jeopardize the insured's life, health, or ability to regain maximum

function or when an insured is undergoing a current course of treatment

using a non-formulary prescription drug.

(3) (A) An insurer shall have a process for an insured, the insured's

designee, or the insured's prescribing health care provider to request

an expedited review based on exigent circumstances of a formulary

exception for a prescription drug that is not covered by the policy.

(B) An insurer shall make a determination on an expedited review

request based on exigent circumstances and notify the insured or the

insured's designee and the insured's prescribing health care provider by

telephone of its coverage determination no later than twenty-four hours

following receipt of the request.

(C) An insurer that grants an exception based on exigent circumstances

shall provide coverage of the non-formulary prescription drug for the

duration of the exigent circumstances.

(4) An insurer that denies an exception request under paragraph two or

three of this subsection shall provide written notice of its

determination to the insured or the insured's designee and the insured's

prescribing health care provider within three business days of receipt

of the exception request. The written notice shall be considered a final

adverse determination under section four thousand nine hundred four of

this chapter or section four thousand nine hundred four of the public

health law. Written notice shall also include the name or names of

clinically appropriate prescription drugs covered by the insurer to

treat the insured.

(5) (A) If an insurer denies a request for an exception under

paragraph two or three of this subsection, the insured, the insured's

designee, or the insured's prescribing health care provider shall have

the right to request that such denial be reviewed by an external appeal

agent certified by the superintendent pursuant to section four thousand

nine hundred eleven of this chapter in accordance with article

forty-nine of this chapter or article forty-nine of the public health

law.

(B) An external appeal agent shall make a determination on the

external appeal and notify the insurer, the insured or the insured's

designee, and the insured's prescribing health care provider by

telephone of its determination no later than seventy-two hours following

the external appeal agent's receipt of the request, if the original

request was a standard exception request under paragraph two of this

subsection. The external appeal agent shall notify the insurer, the

insured or the insured's designee, and the insured's prescribing health

care provider in writing of the external appeal determination within two

business days of rendering such determination.

(C) An external appeal agent shall make a determination on the

external appeal and notify the insurer, the insured or the insured's

designee, and the insured's prescribing health care provider by

telephone of its determination no later than twenty-four hours following

the external appeal agent's receipt of the request, if the original

request was an expedited exception request under paragraph three of this

subsection and the insured's prescribing health care provider attests

that exigent circumstances exist. The external appeal agent shall notify

the insurer, the insured or the insured's designee, and the insured's

prescribing health care provider in writing of the external appeal

determination within seventy-two hours of the external appeal agent's

receipt of the external appeal.

(D) An external appeal agent shall make a determination in accordance

with subparagraph (A) of paragraph four of subsection (b) of section

four thousand nine hundred fourteen of this chapter or subparagraph (A)

of paragraph (d) of subdivision two of section four thousand nine

hundred fourteen of the public health law. When making a determination,

the external appeal agent shall consider whether the formulary

prescription drug covered by the insurer will be or has been

ineffective, would not be as effective as the non-formulary prescription

drug, or would have adverse effects.

(E) If an external appeal agent overturns the insurer's denial of a

standard exception request under paragraph two of this subsection, then

the insurer shall provide coverage of the non-formulary prescription

drug for the duration of the prescription, including refills. If an

external appeal agent overturns the insurer's denial of an expedited

exception request under paragraph three of this subsection, then the

insurer shall provide coverage of the non-formulary prescription drug

for the duration of the exigent circumstances.

* (c)(1) Except as otherwise provided in paragraph three of this

subsection, an insurer shall not:

(A) remove a prescription drug from a formulary;

(B) move a prescription drug to a tier with a larger deductible,

copayment, or coinsurance if the formulary includes two or more tiers of

benefits providing for different deductibles, copayments or coinsurance

applicable to the prescription drugs in each tier; or

(C) add utilization management restrictions to a prescription drug on

a formulary, unless such changes occur at the time of enrollment,

issuance or renewal of coverage.

(2) Prohibitions provided in paragraph one of this subsection shall

apply beginning on the date on which a plan year begins and through the

end of such plan year.

(3) (A) An insurer with a formulary that includes two or more tiers of

benefits providing for different deductibles, copayments or coinsurance

applicable to prescription drugs in each tier may move a prescription

drug to a tier with a larger deductible, copayment or coinsurance if an

AB-rated generic equivalent or interchangeable biological product for

such prescription drug is added to the formulary at the same time.

(B) An insurer may remove a prescription drug from a formulary if the

federal Food and Drug Administration determines that such prescription

drug should be removed from the market, including new utilization

management restrictions issued pursuant to federal Food and Drug

Administration safety concerns.

(C) An insurer with a formulary that includes two or more tiers of

benefits providing for different copayments applicable to prescription

drugs may move a prescription drug to a tier with a larger copayment

during the plan year, provided the change is not applicable to an

insured who is already receiving such prescription drug or has been

diagnosed with or presented with a condition on or prior to the start of

the plan year that is treated by such prescription drug or is a

prescription drug that is or would be part of the insured's treatment

regimen for such condition.

(4) An insurer shall provide notice to insureds of the intent to

remove a prescription drug from a formulary or alter deductible,

copayment or coinsurance requirements in the upcoming plan year, ninety

days prior to the start of the plan year. Such notice of impending

formulary and deductible, copayment or coinsurance changes shall also be

posted on the insurer's online formulary and in any prescription drug

finder system that the insurer provides to the public.

(5) The provisions of this subsection shall not supersede the terms of

a collective bargaining agreement, or the rights of labor representation

groups to collectively bargain changes to the formularies.

* NB There are 2 sb (c)'s

* (c) Every policy delivered or issued for delivery in this state that

provides coverage for prescription drugs shall include in the policy a

process that allows an insured, the insured's designee, or the insured's

prescribing health care provider to immediately obtain, on the insured's

behalf, an additional thirty-day supply of any current prescription of

the insured, except as provided in section two hundred seventy-eight-a

of the public health law, at the same level of coverage as a normal

refill of such prescription drug upon the declaration of a state

disaster emergency pursuant to section twenty-eight of the executive

law.

* NB There are 2 sb (c)'s