Section 250. Reimbursement to participating provider pharmacies

1. The
  amount  of  reimbursement  which  shall  be  paid  by  the  state  to  a
  participating  provider pharmacy for any covered drug filled or refilled
  for any eligible program participant  shall  be  equal  to  the  allowed
  amount  defined  as  follows,  minus  the  point  of  sale co-payment as
  required by sections two hundred forty-seven and two hundred forty-eight
  of this title:
    (a) Multiple source covered drugs. Except for brand  name  drugs  that
  are  required  by the prescriber to be dispensed as written, the allowed
  amount for a multiple source covered drug shall equal the lower of:
    (1) The pharmacy's usual and customary charge to the  general  public,
  taking  into consideration any quantity and promotional discounts to the
  general public at the time of purchase, or
    (2) The upper limit, if any, set  by  the  centers  for  medicare  and
  medicaid services for such multiple source drug, or
    (3) Average wholesale price discounted by twenty-five percent, or
    (4)   The   maximum   allowable  cost,  if  any,  established  by  the
  commissioner of health pursuant to paragraph (e) of subdivision nine  of
  section three hundred sixty-seven-a of the social services law.
    Plus  a  dispensing fee for drugs reimbursed pursuant to subparagraphs
  two, three, and four of this paragraph, as defined in paragraph  (c)  of
  this subdivision.
    * (b)  Other  covered  drugs.  The allowed amount for brand name drugs
  required by the prescriber to be dispensed as written  and  for  covered
  drugs  other  than multiple source drugs shall be determined by applying
  the lower of:
    (1) Average wholesale price discounted by sixteen and twenty-five  one
  hundredths percent, plus a dispensing fee as defined in paragraph (c) of
  this subdivision, or
    (2)  The  pharmacy's usual and customary charge to the general public,
  taking into consideration any quantity and promotional discounts to  the
  general public at the time of purchase.
    * NB  Amended  Ch.  58/2004  Part  A  §17, language juxtaposed per Ch.
  642/2004 §11
    (c) As required by paragraphs (a)  and  (b)  of  this  subdivision,  a
  dispensing  fee  of four dollars fifty cents will apply to generic drugs
  and a dispensing fee of three dollars fifty cents will  apply  to  brand
  name drugs.
    2. For purposes of determining the amount of reimbursement which shall
  be  paid to a participating provider pharmacy, the panel shall determine
  or cause to be determined, through a  statistically  valid  survey,  the
  quantities  of  each covered drug that participating provider pharmacies
  buy most frequently. Using the result of  this  survey,  the  contractor
  shall update every thirty days the list of average wholesale prices upon
  which  such  reimbursement is determined using nationally recognized and
  most recently revised  sources.  Such  price  revisions  shall  be  made
  available to all participating provider pharmacies. The pharmacist shall
  be  reimbursed based on the price in effect at the time the covered drug
  is dispensed.
    3. (a) Notwithstanding any inconsistent provision of law, the  program
  for  elderly  pharmaceutical  insurance  coverage  shall  reimburse  for
  covered drugs which are  dispensed  under  the  program  by  a  provider
  pharmacy  only  pursuant  to the terms of a rebate agreement between the
  program and the manufacturer (as  defined  under  section  1927  of  the
  federal  social  security act) of such covered drugs; provided, however,
  that:
    (1) any agreement between the program and a manufacturer entered  into
  before  August  first,  nineteen  hundred ninety-one, shall be deemed to

  have been entered into on April first, nineteen hundred ninety-one;  and
  provided  further,  that  if  a  manufacturer  has  not  entered into an
  agreement with the department  before  August  first,  nineteen  hundred
  ninety-one,  such  agreement  shall  not be effective until April first,
  nineteen hundred ninety-two, unless such agreement provides that rebates
  will be retroactively calculated as if the agreement had been in  effect
  on April first, nineteen hundred ninety-one; and
    (2)  the  program  may  reimburse  for  any  covered drugs pursuant to
  subdivisions one and two of this section, for which a  rebate  agreement
  does  not  exist  and which are determined by the elderly pharmaceutical
  insurance coverage panel to  be  essential  to  the  health  of  persons
  participating in the program; and likely to provide effective therapy or
  diagnosis for a disease not adequately treated or diagnosed by any other
  covered  drug;  and which are recommended for reimbursement by the panel
  and approved by the commissioner of health.
    (b) The rebate agreement between such manufacturer and the program for
  elderly pharmaceutical insurance  coverage  shall  utilize  for  covered
  drugs  the  identical  formula  used to determine the rebate for federal
  financial participation for drugs, pursuant to section  1927(c)  of  the
  federal  social  security  act,  to  determine  the amount of the rebate
  pursuant to this subdivision.
    (c) The amount of rebate pursuant to paragraph (b) of this subdivision
  shall be calculated by multiplying the required rebate formulas  by  the
  total  number  of  units of each dosage form and strength dispensed. The
  rebate agreement shall also provide for periodic payment of the  rebate,
  provision  of  information to the program, audits, verification of data,
  damages to the program for any delay or non-production of necessary data
  by the manufacturer and for the confidentiality of information.
    (d) The program in providing utilization data to  a  manufacturer  (as
  provided  for under section 1927 (b) of the federal social security act)
  shall provide such data by zip code, if requested,  for  the  top  three
  hundred  most  commonly  used  drugs  by  volume  covered under a rebate
  agreement.
    (e) Any funds collected pursuant to any rebate agreements entered into
  with a manufacturer pursuant to this  subdivision,  shall  be  deposited
  into  the  elderly  pharmaceutical  insurance  coverage  program premium
  account.
    4. Notwithstanding any other provision of law,  entities  which  offer
  insurance   coverage   for   provision   of   and/or  reimbursement  for
  pharmaceutical  expenses,  including  but  not  limited   to,   entities
  licensed/certified    pursuant   to   article   thirty-two,   forty-two,
  forty-three or forty-four of the insurance law (employees welfare funds)
  or article forty-four of the public health law, shall participate  in  a
  benefit  recovery  program  with  the  elderly  pharmaceutical insurance
  coverage (EPIC) program  which  includes,  but  is  not  limited  to,  a
  semi-annual  match of EPIC's file of enrollees against the entity's file
  of insured to identify individuals enrolled in both  plans  with  claims
  paid  within  the  twenty-four  months  preceding  the  date  the entity
  receives the match request information  from  EPIC.  Such  entity  shall
  indicate if pharmaceutical coverage is available from the entity for the
  insured  persons, list the copayment or other payment obligations of the
  insured persons applicable to the pharmaceutical  coverage,  and  (after
  receiving  necessary claim information from EPIC) list the amounts which
  the entity would have paid  for  the  pharmaceutical  claims  for  those
  identified   individuals   and  the  entity  shall  reimburse  EPIC  for
  pharmaceutical expenses paid by EPIC that are covered under the contract
  between the entity and its insured in only  those  instances  where  the
  entity  has  not already made payment of the claim. Reimbursement of the

  net amount payable (after rebates and discounts) that  would  have  been
  paid  under the coverage issued by the entity will be made by the entity
  to EPIC within sixty days of receipt from EPIC of the standard  data  in
  electronic  format  necessary for the entity to adjudicate the claim and
  if the standard data is provided to the entity by EPIC in  paper  format
  payment  by  the  entity  shall  be made within one hundred eighty days.
  After completing at least one match  process  with  EPIC  in  electronic
  format,  an  entity  shall  be entitled to elect a monthly or bi-monthly
  match process rather than a semi-annual match process.
    5. Notwithstanding  any  other  provision  of  law,  the  panel  shall
  maximize  the  coordination of benefits for persons enrolled under Title
  XVIII of the federal social security act (medicare) and  enrolled  under
  this  title in order to facilitate medicare payment of claims. The panel
  may select an independent  contractor,  through  a  request-for-proposal
  process,  to  implement  a  centralized  coordination of benefits system
  under this subdivision for individuals qualified  in  both  the  elderly
  pharmaceutical  insurance  coverage (EPIC) program and medicare programs
  who receive medications  or  other  covered  products  from  a  pharmacy
  provider  currently  enrolled  in  the  elderly pharmaceutical insurance
  coverage (EPIC) program.
    6. (a) The EPIC  program  shall  be  the  payor  of  last  resort  for
  individuals  qualified  in  both the EPIC program and title XVIII of the
  federal  social  security  act  (Medicare).  For  such  individuals,  no
  reimbursement  shall  be  available under EPIC for covered drug expenses
  except:
    (i) where a prescription drug plan authorized by Part D of the federal
  social security act (referred to in this subdivision as a Medicare  Part
  D  plan)  has  approved  coverage  and EPIC has an obligation under this
  title to pay a portion of the participant's cost-sharing  responsibility
  under Medicare Part D; or
    (ii)  where  the  provider pharmacy has certified that: (1) a Medicare
  Part D plan has denied coverage, and (2) either, after consultation with
  the prescriber, the prescriber has declined to revise  the  prescription
  to  a  drug  that  would  be covered by the Medicare Part D plan, or the
  provider pharmacy has been unable to contact the prescriber.
    (b) If the provider pharmacy certifies as set  forth  in  subparagraph
  (ii)  of  paragraph  (a) of this subdivision, the EPIC program shall pay
  for the drug as the primary payor. If determined by the EPIC program  to
  be  practical  and cost-effective, the program, or its contractor, shall
  attempt to obtain Medicare Part D coverage of the drug by  initiating  a
  Medicare  Part D appeal. If the initial appeal is denied by the Medicare
  Part D plan, the EPIC program shall pursue additional levels of Medicare
  Part D appeals when practical and cost-effective.