2023 New York Laws › ISC - Insurance › Article 32 - Insurance Contracts - Life, Accident and Health, Annuities › 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.
(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