N.Y. Comp. Codes R. & Regs. tit. 12 § 440.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 440.3 - Designated pharmacies

(a) A self-insured employer or insurance carrier, or its agent, may designate one or more independent pharmacy, pharmacy chain, or pharmacy benefit manager that injured employees must use to obtain outpatient prescription medications, provided that the self-insured employer or insurance carrier:

(1) has filed with the chair, in the manner prescribed by the chair either:

(i) a listing of all pharmacy chains and independent pharmacies it has designated under this section, and notified the chair, in the manner prescribed by the chair, of the addition or removal of any pharmacy chain or independent pharmacy from that listing on a quarterly basis; or

(ii) the name and contact information for a pharmacy benefit manager or other party listed in the notice provided under section 440.4(a)(1) of this Part, provided such pharmacy benefit manager or other party shall provide a list of all pharmacy chains and independent pharmacies it administers, in the manner prescribed by the chair, and notifies the chair, in the manner prescribed by the chair, of the addition or removal of any pharmacy chain or independent pharmacy from that listing on a quarterly basis; and

(2) is compliant with the notification requirements set forth in section 440.4 of this Part.

(b) Each independent pharmacy or pharmacy chain designated under this Part must maintain a sufficient inventory such that it may service claimants without undue delay. Each designated pharmacy must either:

(1) be a remote pharmacy; or

(2) be open for business hours that are regular and customary in the community.

(c) A claimant shall not be required to obtain medications from a designated pharmacy:

(1) prior to receiving the individual notice and identifying documents required by section 440.4 of this Part; or

(2) after receipt of the notice required by subdivision (d) of this section; or

(3) if no designated pharmacy is a remote pharmacy or one that delivers to the claimant, and no designated pharmacy is located within 15 miles of the claimant's place of residence or employment if the claimant resides in a rural area or within five miles of the claimant's place of residence or employment if the claimant resides in a municipality which is an incorporated city or village having a population of 2,500 or more; or

(4) a medical emergency occurs and it is not reasonably possible to obtain immediately required prescribed medicine from a designated pharmacy. It shall be deemed a medical emergency when:

(i) a medical provider directs a claimant to take a medication by a certain time, and such medication cannot be obtained prior to that time via a remote pharmacy;

(ii) no designated pharmacies are located within the distance from claimant's residence or employment set forth in paragraph (3) of this subdivision; and

(iii) the medication obtained is not a refill, or the claimant was not otherwise aware of his or her need to take the medication within sufficient time to obtain it via a remote pharmacy.

(d) In any claim controverted by the self-insured employer or insurance carrier pursuant to Workers' Compensation Law Section 25(2), where the self-insured employer or insurance carrier will not reimburse the designated independent pharmacy, pharmacy chain, or pharmacy benefits manager for prescription medicines dispensed to the claimant until the controversy is resolved and the claim established, even under the provisions of Workers' Compensation Law Section 21-a, the self-insured employer or insurance carrier shall provide notice of this decision to the claimant with the notice that the right to compensation is controverted. Such notice shall be in the form prescribed by the Chair, and shall state that the self-insured employer or insurance carrier does not intend to reimburse the independent pharmacy, pharmacy chain, or pharmacy benefit manager it has designated while the claim is controverted and until it is established, and the claimant may elect to use a pharmacy not designated pursuant to this Part during the period that the claim is controverted. Prior to the filing of such prescribed notice, the claimant may be prescribed and dispensed and the insurance carrier or self-insured employer will be responsible for the cost (as set forth in section 440.5 of this Part) of medications from, as applicable, Phase A, B or the Perioperative section of the Pharmacy Formulary. In the event the claimant prevails on his or her claim, the self-insured employer or insurance carrier shall reimburse either:

(1) the claimant, the pharmacy processing agent, or other third party that has made payment for such medication; or

(2) the pharmacy from which the claimant has obtained such medication where the pharmacy has not received payment from the claimant, the pharmacy processing agent, or any third party. Such reimbursement shall not exceed the maximum amount set by the fee schedule for controverted claims in section 440.5 of this Part. In the event the self-insured employer or insurance carrier prevails, it shall have no obligation to reimburse the claimant, the pharmacy processing agent, or any third party that paid for such medication, or pharmacy. Nothing in these regulations shall bar the pharmacy or pharmacy processing agent or other third-party payor from seeking payment or reimbursement from the claimant if the claim is not established as otherwise permitted by law.

(e) For purposes of this part, no remote pharmacy may offer purchases solely by email or online, but must provide an option to make purchases by telephone and mail order.

(f) Where a claim is apportioned between more than one self-insured employer or insurance carrier, the claimant may select among pharmacies designated under this Part by all such self-insured employers or insurance carriers liable for apportionment. If any such self-insured employers or insurance carriers have not designated any independent pharmacies, pharmacy chains, or pharmacy benefit manager under this Part, the claimant is not bound by any designation made under this Part.

(g) Any rebates or third-party revenue related to drugs dispensed through a contract for pharmacy benefit management and delivered to the designated pharmacy shall be passed through in full to the insurance carrier or self-insured employer in accordance with contract terms that document the methodology for such transactions. Carriers shall offset bills to insured employers by the amount of any passed-through rebate and third-party revenue. Such rebates and third-party revenue shall be reported at least annually to the carrier or self-insured employer and reported by the carrier or self-insured employer to the Chair upon request.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 440.3

Amended New York State Register April 17, 2019/Volume XLI, Issue 16, eff. 4/17/2019

Amended New York State Register April 17, 2019/Vol. XLI, Issue 16, eff. 10/1/2019