Bill Text: NY A11378 | 2009-2010 | General Assembly | Introduced
Bill Title: Defines estimated acquisition cost of prescription drugs for pharmacy reimbursement.
Spectrum: Slight Partisan Bill (Democrat 15-7)
Status: (Introduced - Dead) 2010-06-07 - referred to health [A11378 Detail]
Download: New_York-2009-A11378-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 11378 I N A S S E M B L Y June 7, 2010 ___________ Introduced by COMMITTEE ON RULES -- (at request of M. of A. Destito, Colton, Pheffer, Cymbrowitz, Reilly, Stirpe, DelMonte, Paulin, Spano, Christensen, Fields, Jaffee, Bacalles, Burling, Koon, McEneny, J. Miller, Raia, Thiele) -- read once and referred to the Committee on Health AN ACT to amend the social services law and the elder law, in relation to prescription drug pricing for pharmacy reimbursement THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Paragraphs (b), (c) and (e) of subdivision 9 of section 2 367-a of the social services law, paragraph (b) as amended and paragraph 3 (e) as added by section 3 of part C of chapter 58 of the laws of 2004, 4 subparagraph (i) of paragraph (b) as amended by section 10 and subpara- 5 graph (ii) of paragraph (b) as amended by section 4 of part C of chapter 6 58 of the laws of 2008, subparagraph (iii) of paragraph (b) as added by 7 section 29 of part E of chapter 63 of the laws of 2005 and paragraph (c) 8 as amended by chapter 19 of the laws of 1998, are amended and a new 9 paragraph (j) is added to read as follows: 10 (b) for drugs dispensed by pharmacies: 11 (i) [if the drug dispensed is a multiple source prescription drug for 12 which an upper limit has been set by the federal centers for medicare 13 and medicaid services, the lower of: (A) an amount equal to the specific 14 upper limit set by such federal agency for the multiple source 15 prescription drug; (B) the estimated acquisition cost of such drug to 16 pharmacies which, for purposes of this subparagraph, shall mean the 17 average wholesale price of a prescription drug based on the package size 18 dispensed from, as reported by the prescription drug pricing service 19 used by the department, less twenty-five percent thereof; (C) the maxi- 20 mum acquisition cost, if any, established pursuant to paragraph (e) of 21 this subdivision; or (D) the dispensing pharmacy's usual and customary 22 price charged to the general public, and 23 (ii)] if the drug dispensed is a multiple source prescription drug or 24 a brand-name prescription drug for which no specific upper limit has 25 been set by such federal agency, the lower of the estimated acquisition EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14703-06-0 A. 11378 2 1 cost of such drug to pharmacies, or the dispensing pharmacy's usual and 2 customary price charged to the general public. For sole and multiple 3 source brand name drugs, estimated acquisition cost means the average 4 wholesale price of a prescription drug based upon the package size 5 dispensed from, as reported by the prescription drug pricing service 6 used by the department, less [sixteen] TWELVE and twenty-five one 7 hundredths percent OR THE WHOLESALE ACQUISITION COST OF A PRESCRIPTION 8 DRUG BASED UPON THE PACKAGE SIZE DISPENSED FROM, AS REPORTED BY THE 9 PRESCRIPTION DRUG PRICING SERVICE USED BY THE DEPARTMENT, PLUS FOUR AND 10 SIXTY-EIGHT HUNDREDTHS PERCENT thereof, and updated monthly by the 11 department; or, for a specialized HIV pharmacy, as defined in paragraph 12 (f) of this subdivision, acquisition cost means the average wholesale 13 price of a prescription drug based upon the package size dispensed from, 14 as reported by the prescription drug pricing service used by the depart- 15 ment, less twelve [percent thereof, and updated monthly by the depart- 16 ment] AND TWENTY-FIVE ONE-HUNDREDTHS PERCENT OR THE WHOLESALE ACQUISI- 17 TION COST OF A PRESCRIPTION DRUG BASED UPON THE PACKAGE SIZE DISPENSED 18 FROM, AS REPORTED BY THE PRESCRIPTION DRUG PRICING SERVICE USED BY THE 19 DEPARTMENT, PLUS FOUR AND SIXTY-EIGHT HUNDREDTHS PERCENT THEREOF, AND 20 UPDATED MONTHLY BY THE DEPARTMENT; OR FOR A CHAIN PHARMACY, AS DEFINED 21 IN PARAGRAPH (J) OF THIS SUBDIVISION, ACQUISITION COST MEANS THE AVERAGE 22 WHOLESALE PRICE OF A PRESCRIPTION DRUG BASED ON THE PACKAGE SIZE 23 DISPENSED FROM LESS SIXTEEN AND TWENTY-FIVE ONE HUNDREDTHS PERCENT THER- 24 EOF OR THE WHOLESALE ACQUISITION COSTS OF THE PRESCRIPTION DRUG BASED ON 25 THE PACKAGE SIZE DISPENSED FROM PLUS FIVE TENTHS OF ONE PERCENT THEREOF, 26 AND UPDATED MONTHLY BY THE DEPARTMENT. For multiple source generic 27 drugs, estimated acquisition cost means [the lower of the average whole- 28 sale price of a prescription drug based on the package size dispensed 29 from, as reported by the prescription drug pricing service used by the 30 department, less twenty-five percent thereof, or] the maximum acquisi- 31 tion cost, if any, established pursuant to paragraph (e) of this subdi- 32 vision; [or, for a specialized HIV pharmacy, as defined in paragraph (f) 33 of this subdivision, acquisition cost means the lower of the average 34 wholesale price of a prescription drug based on the package size 35 dispensed from, as reported by the prescription drug pricing service 36 used by the department, less twelve percent thereof, or the maximum 37 acquisition cost, if any, established pursuant to paragraph (e) of this 38 subdivision] OR THE SPECIFIC UPPER LIMIT SET BY THE FEDERAL CENTERS FOR 39 MEDICARE AND MEDICAID SERVICES, WHICHEVER IS HIGHER. IF THE DISPENSING 40 PHARMACY'S USUAL AND CUSTOMARY PRICE CHARGED TO THE GENERAL PUBLIC IS 41 LOWER THAN EITHER OF THESE, PAYMENT SHALL BE MADE AT THE USUAL AND 42 CUSTOMARY PRICE. 43 [(iii)] (II) notwithstanding [subparagraphs (i) and (ii)] SUBPARAGRAPH 44 (I) of this paragraph and paragraphs (d) and (e) of this subdivision, if 45 the drug dispensed is a drug that has been purchased from a manufacturer 46 by a covered entity pursuant to section 340B of the federal public 47 health service act (42 USCA S 256b), the actual amount paid by such 48 covered entity pursuant to such section, plus the reasonable administra- 49 tive costs, as determined by the commissioner, incurred by the covered 50 entity or by an authorized contract pharmacy in connection with the 51 purchase and dispensing of such drug and the tracking of such trans- 52 actions. For purposes of this subparagraph, a "covered entity" is an 53 entity that meets the requirements of paragraph four of subsection (a) 54 of such section, that elects to participate in the program established 55 by such section, and that causes claims for payment for drugs covered by 56 this subparagraph to be submitted to the medical assistance program, A. 11378 3 1 either directly or through an authorized contract pharmacy. No medical 2 assistance payments may be made to a covered entity or to an authorized 3 contract pharmacy of a covered entity for drugs that are eligible for 4 purchase under the section 340B program and are dispensed on an outpa- 5 tient basis to patients of the covered entity, other than under the 6 provisions of this subparagraph. Pharmacies submitting claims for 7 reimbursement of drugs purchased pursuant to section 340B of the public 8 health service act shall notify the department that the claim is eligi- 9 ble for purchase under the 340B program, consistent with claiming 10 instructions issued by the department to identify such claims. 11 (c) [Notwithstanding subparagraph (i) of paragraph (b) of this subdi- 12 vision, if] IF a qualified prescriber certifies "brand medically neces- 13 sary" or "brand necessary" in his or her own handwriting directly on the 14 face of a prescription for a multiple source drug for which a specific 15 upper limit of reimbursement has been established by the federal agency, 16 in addition to writing "d a w" in the box provided for such purpose on 17 the prescription form, payment under this title for such drug must be 18 made under the provisions of subparagraph [(ii)] (I) of such paragraph. 19 (e) For a multiple source generic drug for which no specific upper 20 payment limit has been established by the federal centers for medicare 21 and medicaid services, the commissioner of health may establish a maxi- 22 mum acquisition cost for such drug which shall be effective until such 23 time as a specific federal upper payment limit has been established for 24 such drug. The department shall use a similar methodology in establish- 25 ing such an interim price as that utilized by the centers for medicare 26 and Medicaid services in establishing the federal upper payment limit 27 AND MAKE AVAILABLE UPON REQUEST BOTH THE METHODOLOGY AND THE COST BASIS 28 UTILIZED FOR ANY INDIVIDUAL MULTIPLE SOURCE GENERIC DRUG SO AS TO VERIFY 29 THAT THE PRODUCT IS AVAILABLE IN PHARMACIES LOCATED IN THE STATE. For 30 this purpose, the department is authorized to enter into a contract with 31 an entity to provide technical and administrative support to the commis- 32 sioner of health. 33 (J) FOR PURPOSES OF THIS SECTION, A CHAIN PHARMACY IS DEFINED AS FIVE 34 OR MORE PHARMACIES UNDER THE SAME CORPORATE ENTITY. 35 S 2. Subparagraph 1 of paragraph (b) of subdivision 1 of section 250 36 of the elder law, as amended by section 1 of part A of chapter 58 of the 37 laws of 2008, is amended to read as follows: 38 (1) Average wholesale price discounted by [sixteen] TWELVE and twen- 39 ty-five one hundredths percent OR WHOLESALE ACQUISITION COST PLUS FOUR 40 AND SIXTY-EIGHT HUNDREDTHS PERCENT, plus a dispensing fee as defined in 41 paragraph (c) of this subdivision, or FOR A CHAIN PHARMACY AS DEFINED IN 42 PARAGRAPH (J) OF SUBDIVISION NINE OF SECTION THREE HUNDRED SIXTY- 43 SEVEN-A OF THE SOCIAL SERVICES LAW, AVERAGE WHOLESALE PRICE DISCOUNTED 44 BY SIXTEEN AND TWENTY-FIVE ONE HUNDREDTHS PERCENT OR WHOLESALE ACQUISI- 45 TION COST PLUS FIVE TENTHS OF ONE PERCENT, PLUS A DISPENSING FEE AS 46 DEFINED IN PARAGRAPH (C) OF THIS SUBDIVISION, OR 47 S 3. Subdivision 2 of section 250 of the elder law is amended to read 48 as follows: 49 2. For purposes of determining the amount of reimbursement which shall 50 be paid to a participating provider pharmacy, the panel shall determine 51 or cause to be determined, through a statistically valid survey, the 52 quantities of each covered drug that participating provider pharmacies 53 buy most frequently. Using the result of this survey, the contractor 54 shall update every thirty days the list of average wholesale prices OR 55 WHOLESALE ACQUISITION COSTS upon which such reimbursement is determined 56 using nationally recognized and most recently revised sources. Such A. 11378 4 1 price revisions shall be made available to all participating provider 2 pharmacies. The pharmacist shall be reimbursed based on the price in 3 effect at the time the covered drug is dispensed. 4 S 4. This act shall take effect immediately and shall be deemed to 5 have been in full force and effect on and after September 26, 2009; 6 provided, however, that the amendments to subdivision 9 of section 367-a 7 of the social services law made by section one of this act shall not 8 affect the expiration of such subdivision and shall be deemed to expire 9 therewith.