RESTRICTING SEX OFFENDERS ACCESS TO CERTAIN MEDICATIONS

LAWS OF NEW YORK, 2005
CHAPTER 645

EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law to be omitted.
 
     AN ACT to amend the social services law, the elder law, the public health law, the correction law and the insurance law, in relation to restricting certain covered medications in the treatment of erectile dysfunction in certain sex offenders

     Became a law August 30, 2005, with the approval of the Governor.  Passed on message of necessity pursuant to Article III, section 14 of the Constitution by a majority vote, three-fifths being present.

     The People of the State of New York, represented in Senate and  Assembly, do enact as follows:

     Section 1. Paragraphs (c) and (d) of subdivision 4 of section 365-a of the social services law, paragraph (c) as added by chapter 451 of the laws of 1983 and paragraph (d) as added by chapter 81 of the laws of 1995, are amended and a new paragraph (e) is added to read as follows:
     (c)  care and services of an optometrist for using drugs in excess of the maximum reimbursable amounts for optometric care and services established by the commissioner and approved by the director of the budget[.];
     (d)  any medical care, services or supplies furnished outside the state, except, when prior authorized in accordance with department regulations or for care, services and supplies furnished:  as a result of a medical emergency; because the recipient's health would have been endangered if he or she had been required to travel to the state; because the care, services or supplies were more readily available in the other state; or because it is the general practice for persons residing in the locality wherein the recipient resides to use medical providers in the other state[.]; or
     (e)  drugs, procedures and supplies for the treatment of erectile dysfunction when provided to, or prescribed for use by, a person who is required to register as a sex offender pursuant to article six-C of the correction law, provided that any denial of coverage pursuant to this paragraph shall provide the patient with the means of obtaining additional information concerning both the denial and the means of challenging such denial.
     § 2. Subdivision 1 of section 369-ee of the social services law is amended by adding a new paragraph (e-1) to read as follows:
     (e-1)  "Health  care services" shall not include drugs, procedures and supplies for the treatment of erectile dysfunction when provided to, or prescribed for use by, a person who is required to register as a sex offender pursuant to article six-C of the correction law provided that any denial of coverage pursuant to this paragraph shall provide the patient with the means of obtaining additional information concerning both the denial and the means of challenging such denial.
     §  3.  Subdivision 1 of section 241 of the elder law, as amended by section 14 of part C of chapter 58 of the laws of 2005, is amended to read as follows:
  
     1.  "Covered  drug" shall mean a drug dispensed subject to a legally authorized prescription pursuant to section sixty-eight hundred ten of the education law, and insulin, an insulin syringe, or an insulin needle.  Such term shall not include: (a) any drug determined by the commissioner of the federal food and drug administration to be ineffective or unsafe; (b) any drug dispensed in a package, or form of dosage or administration, as to which the commissioner of health finally determines in accordance with the provisions of section two hundred fifty of this title that a less expensive package, or form of dosage or administration, is available that is pharmaceutically equivalent and equivalent in its therapeutic effect for the general health characteristics of the eligible program participant population; (c) any device for the aid or correction of vision; [and] (d) any drug, including vitamins, which is generally available without a physician's prescription; and (e) drugs for the treatment of erectile dysfunction when prescribed for use by a person who is required to register as a sex offender pursuant to article six-C of the correction law, [provided,  however,  that  such  drug] provided that any denial of coverage for such drugs shall provide the patient with the means of obtaining additional information concerning both the denial and the means of challenging such denial.  Any of the drugs enumerated in the preceding sentence shall be considered a covered drug or a prescription drug for purposes of this article if it is added to the preferred drug list under article two-A of the public health law.  For the purpose of this title, except as otherwise provided in this section, a covered drug shall be dispensed in quantities no greater than a thirty day supply or one hundred units, whichever is greater.  In the case of a drug dispensed in a form of administration other than a tablet or capsule, the maximum allowed quantity shall be a thirty day supply; the panel is authorized to approve exceptions to these limits for specific products following consideration of recommendations from pharmaceutical or medical experts regarding commonly packaged quantities, unusual forms of administration, length of treatment or cost effectiveness.  In the case of a drug prescribed pursuant to section thirty-three hundred thirty-two of the public health law to treat one of the conditions that have been enumerated by the commissioner of health pursuant to regulation as warranting the prescribing of greater than a thirty day supply, such drug shall be dispensed in quantities not to exceed a three month supply.
     §  4. Subdivision 1 of section 241 of the elder law is amended to read as follows:
     1. "Covered drug" shall mean a drug dispensed subject to a legally authorized prescription pursuant to section sixty-eight hundred ten of the education law, and insulin, an insulin syringe, or an insulin needle.  Such term shall not include:  (a) any drug determined by the commissioner of the federal food and drug administration to be ineffective or unsafe; (b) any drug dispensed in a package, or form of dosage or administration, as to which the commissioner of health finally determines in accordance with the provisions of section two hundred fifty of this title that a less expensive package, or form of dosage or administration, is available that is pharmaceutically equivalent and equivalent in its therapeutic effect for the general health characteristics of the eligible program participant population; [and] (c) any device for the aid or correction of vision, or any drug, including vitamins, which is generally available without a physician's prescription; and (d) drugs for the treatment of erectile dysfunction when prescribed for use by a person who is required to register pursuant to article six-C of the correction law, provided that any denial of coverage for such drugs shall provide the patient with the means of obtaining additional information concerning both the denial and the means of challenging such denial.  For the purpose of this title, except as otherwise provided in this section, a covered drug shall be dispensed in quantities no greater than a thirty day supply or one hundred units, whichever is greater.  In the case of a drug dispensed in a form of administration other than a tablet or capsule, the maximum allowed quantity shall be a thirty day supply; the panel is authorized to approve exceptions to these limits for specific products following consideration of recommendations from pharmaceutical or medical experts regarding commonly packaged quantities, unusual forms of administration, length of treatment or cost effectiveness.  In the case of a drug prescribed pursuant to section thirty-three hundred thirty-two of the public health law to treat one of the conditions that have been enumerated by the commissioner of health pursuant to regulation as warranting the prescribing of greater than a thirty day supply, such drug shall be dispensed in quantities not to exceed a three month supply.
     §  5.  Subdivision 7 of section 2510 of the public health law, as amended by chapter 526 of the laws of 2002, is amended to read as follows:
      7.  "Covered health care services" means: the services of physicians, optometrists, nurses, nurse practitioners, midwives and other related professional personnel which are provided on an outpatient basis, including routine well-child visits; diagnosis and treatment of illness and injury; inpatient health care services; laboratory tests; diagnostic x-rays; prescription and non-prescription drugs and durable medical equipment; radiation therapy; chemotherapy; hemodialysis; emergency room services; hospice services; emergency, preventive and routine dental care, except orthodontia and cosmetic surgery; emergency, preventive and routine vision care, including eyeglasses; speech and hearing services; and, inpatient and outpatient mental health, alcohol and substance abuse services as defined by the commissioner in consultation with the  superintendent.  "Covered health care services" shall not include drugs, procedures and supplies for the treatment of erectile dysfunction when provided to, or prescribed for use by, a person who is required to register as a sex offender pursuant to article six-C of the correction law, provided that any denial of coverage of such drugs, procedures or supplies shall provide the patient with the means  of  obtaining  additional information concerning both the denial and the means of challenging such denial.
     § 6. Subdivision 2 of section 168-b of the correction law, as added by chapter 192 of the laws of 1995, is amended to read as follows:
     2. a. The division is authorized to make the registry available to any regional or national registry of sex offenders for the purpose of sharing information.  The division shall accept files from any regional or national registry of sex offenders and shall make such files available when requested pursuant to the provisions of this article.
     b.  The division shall also make registry information available to: (i) the department of health, to enable such department to identify persons ineligible to receive reimbursement or coverage for drugs, procedures or supplies pursuant to subdivision seven of section twenty-five hundred ten of the public health law, paragraph (e) of subdivision four of section three hundred sixty-five-a of the social services law, paragraph (e-1) of subdivision one of section three hundred sixty-nine-ee of the social services law, and subdivision one of section two hundred  forty-one of the elder law; and (ii) the department of insurance to enable such department to identify persons ineligible to receive reimbursement or coverage for drugs, procedures or supplies pursuant to subdivision (b-1) of section four thousand three hundred twenty-two and subdivision (d-1) of section four thousand three twenty-six of the insurance law.
     c.  The department of health and the department of insurance may disclose to plans providing coverage for drugs, procedures or supplies for the treatment of erectile dysfunction pursuant to section three hundred sixty-nine-ee of the social services law or sections four thousand three hundred twenty-one, four thousand three hundred twenty-two or four thousand three hundred twenty-six of the insurance law registry information that is limited to the names, dates of birth, and social security numbers of persons who are ineligible by law to receive payment or reimbursement for specified drugs, procedures and supplies  pursuant to such provisions of law. Every such plan shall identify to the department of health or the department of insurance, in advance of disclosure, each person in its employ who is authorized to receive such information provided, however, that such information may be disclosed by such authorized employee or employees to other personnel who are directly involved in approving or disapproving reimbursement or coverage for such drugs, procedures and supplies for such plan members, and provided further that no person receiving registry information shall redisclose such information except to other personnel who are directly involved in approving or disapproving reimbursement or coverage for such drugs, procedures and supplies.
     d.  No official, agency, authorized person or entity, whether public or private, shall be subject to any civil or criminal liability for damages for any decision or action made in the ordinary course of business of that official, agency, authorized person or entity pursuant to paragraphs b and c of this subdivision, provided that such official, agency, authorized person or entity acted reasonably and in good faith  with respect to such registry information.
     e.  The division shall require that no information included in the registry shall be made  available except in the furtherance of the provisions of this article.
     §  7.  Section 206 of the public health law is amended by adding a new subdivision 23 to read as follows:
     23. Pursuant to subdivision six of section two hundred two of the state administrative procedure act, on an emergency basis and upon a finding by the commissioner of an immediate threat to the public safety, the commissioner is authorized to remove a drug, procedure or supply whose primary purpose is to enhance or facilitate sexual performance from:  (a) the definition of medical assistance established pursuant to section three hundred sixty-five-a of the social services law, (b) the definition of health care services covered by the family health plus program established pursuant to section three hundred sixty-nine-ee of the social services law, (c) the definition of covered health services established pursuant to subdivision seven of section twenty-five hundred ten of this chapter, or (d) the list of prescription drugs covered by the program for elderly pharmaceutical insurance coverage (EPIC) established pursuant to title three of article two of the elder law, or to otherwise restrict the criteria for payment for such drug, procedure or supply, by the medicaid, family health plus, child health plus, or EPIC programs, for those persons required to register as sex offenders pursuant to article six-C of the correction law.
     § 8. Section 4322 of the insurance law is amended by adding three  new subsections (b-1), (b-2) and (b-3) to read as follows:
     (b-1)  The in-plan and out-of-plan covered benefits for the standardized individual enrollee direct payment contracts established by this section and section four thousand three hundred twenty-one of this article shall not include drugs, procedures and supplies for the treatment of erectile dysfunction when provided to, or prescribed for use by, a person who is required to register as a sex offender pursuant to article six-C of the correction law, provided that: (1) any denial of coverage pursuant to this subsection shall provide the enrollee with the means of obtaining additional information concerning both the denial and the means of challenging such denial; (2) all drugs, procedures and supplies for the treatment of erectile dysfunction may be subject to prior authorization by health maintenance organizations or insurers for the purposes of implementing this subsection; and (3) the superintendent shall promulgate regulations to implement the denial of coverage pursuant to this subsection giving health maintenance organizations and insurers at least sixty days following promulgation of the regulations to implement their denial procedures pursuant to this subsection.
     (b-2)  No person or entity authorized to provide coverage under this section shall be subject to any civil or criminal liability for  damages for any decision or action pursuant to subsection (b-1) of this section, made in the ordinary course of business if that authorized person or entity acted reasonably and in good faith with respect to such information.
     (b-3)  Notwithstanding any other provision of law, if the commissioner of health makes a finding pursuant to subdivision twenty-three of section two hundred six of the public health law, the superintendent is authorized to remove a drug, procedure or supply from the services covered by the contracts established by this section and section four thousand three hundred twenty-one of this article for those persons required to register as sex offenders pursuant to article six-C of the correction law.
     § 9. Section 4326 of the insurance law is amended by adding three new subsections (d-1), (d-2) and (d-3) to read as follows:
     (d-1)  Covered services shall not include drugs, procedures and supplies for the treatment of erectile dysfunction when provided to, or prescribed for use by, a person who is required to register as a sex offender pursuant to article six-C of the correction law, provided that:  (1) any denial of coverage pursuant to this subsection shall provide the enrollee with the means of obtaining additional information concerning both the denial and the means of challenging such denial; (2) all drugs, procedures and supplies for the treatment of erectile dysfunction may be subject to prior authorization by corporations, insurers or health maintenance organizations for the purposes of implementing this subsection; and (3) the superintendent shall promulgate regulations to implement the denial of coverage pursuant to this subsection giving health maintenance organizations, corporations and insurers at least sixty days following promulgation of the regulations to implement their denial procedures pursuant to this subsection.
     (d-2) No person or entity authorized to provide coverage under this section shall be subject to any civil or criminal liability for damages for any decision or action pursuant to subsection (d-1) of this section, made in the ordinary course of business if that authorized  person or entity acted reasonably and in good faith with respect to such information.
     (d-3) Notwithstanding any other provision of law, if the commissioner of health makes a finding pursuant to subdivision twenty-three of section two hundred six of the public health law, the superintendent is authorized to remove a drug, procedure or supply from the services covered by the standardized health insurance contract established by this section for those persons required to register as sex offenders pursuant to article six-C of the correction law.
     §10.  This act shall take effect immediately, provided that: (i) the amendments to subdivision 1 of section 241 of the elder law made by section three of this act shall be subject to the expiration and reversion of such subdivision pursuant to section 79 of part C of chapter 58 of the laws of 2005, as amended, when upon such date the provisions of section four of this act shall take effect; and
    (ii) the amendments to subdivision 7 of section 2510 of the public health law made by section five of this act shall not affect the expiration of such subdivision and shall be deemed to expire therewith.
 
   The Legislature of the STATE OF NEW YORK ss:
     Pursuant to the authority vested in us by section 70-b of the Public Officers Law, we hereby jointly certify that this slip copy of this session law was printed under our direction and, in accordance with such section, is entitled to be read into evidence.

JOSEPH L. BRUNO
Temporary President of the Senate

SHELDON SILVER
Speaker of the Assembly