N.Y. Insurance Law § 4329: Prescription drug coverage

§ 4329. Prescription drug coverage. * (a) Every corporation subject to

the provisions of this article that issues a contract 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 corporation subject to the provisions of this article that

issues a contract 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 corporation'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

corporation; and

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

to which plan, if a corporation offers more than one plan.

* NB Effective January 1, 2027

(b) (1) Every contract issued by a corporation subject to the

provisions of this article that provides coverage for prescription drugs

shall include in the contract 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, a corporation 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) A corporation 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

contract.

(B) A corporation 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) A corporation 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) A corporation 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 is not covered by the

contract.

(B) A corporation 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) A corporation 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) A corporation 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 corporation to

treat the insured.

(5) (A) If a corporation 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 and article forty-nine of the public health

law.

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

external appeal and notify the corporation, 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 corporation, 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 corporation, 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 corporation, 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 and 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 corporation 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 corporation's denial of

a standard exception request under paragraph two of this subsection,

then the corporation shall provide coverage of the non-formulary

prescription drug for the duration of the prescription, including

refills. If an external appeal agent overturns the corporation's denial

of an expedited exception request under paragraph three of this

subsection, then the corporation 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, a corporation 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) A corporation 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) A corporation 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) A corporation 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) A corporation 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 corporation's online formulary and in any prescription

drug finder system that the corporation 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 contract issued by a corporation subject to the provisions

of this article that provides coverage for prescription drugs shall

include in the contract 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