OK, they call it a fee, but it looks like a tax to me. New York is collecting $100 million from opioid sellers -- with a few exemptions, like for Hospice use. Here's the law: http://nyassembly.gov/leg/?default_fld=&leg_video=&bn=S07507&term=2017&Summary=Y&Actions=Y&Text=Y, mentioned to me by Katherine "KT" Kramer of ASTHO. Section 1. Article 33 of the public health law is amended by adding a 22 new title 2-A to read as follows: 23 TITLE 2-A 24 OPIOID STEWARDSHIP ACT 25 Section 3323. Opioid stewardship fund. 26 § 3323. Opioid stewardship fund. 1. Definitions: 27 (a) "Opioid stewardship payment" shall mean the total amount to be 28 paid into the opioid stewardship fund for each state fiscal year as set 29 forth in subdivision two of this section. 30 (b) "Ratable share" shall mean the individual portion of the opioid 31 stewardship payment to be paid by each manufacturer and distributor 32 licensed under this article that sells or distributes opioids in the 33 state of New York. 34 (c) Notwithstanding any inconsistent provision of law to the contrary, 35 "distribute" shall mean to deliver a controlled substance other than by 36 administering or dispensing to the ultimate user, including intra-compa- 37 ny transfers between any division, affiliate, subsidiary, parent or 38 other entity under complete common ownership and control. For purposes 39 of this section, "distribute" shall not include controlled substances 40 surrendered to reverse distributors, or donated to recipient entities or 41 third-party intermediaries pursuant to the unused prescription drug 42 donation and redispensing program of section two hundred eighty-b of 43 this chapter. 44 2. Opioid stewardship payment imposed on manufacturers and distribu- 45 tors. All manufacturers and distributors licensed under this article 46 (hereinafter referred to as "licensees"), that sell or distribute 47 opioids in the state of New York shall be required to pay an opioid 48 stewardship payment. On an annual basis, the commissioner shall certify 49 to the state comptroller the amount of all revenues collected from 50 opioid stewardship payments and any penalties imposed. The amount of 51 revenues so certified shall be deposited quarterly into the opioid 52 stewardship fund established pursuant to section ninety-seven-aaaaa of 53 the state finance law. No licensee shall pass the cost of their ratable 54 share amount to a purchaser, including the ultimate user of the opioid,
S. 7507--C 92 A. 9507--C 1 or such licensee shall be subject to penalties pursuant to subdivision 2 ten of this section. 3 3. Determination of opioid stewardship payment. The total opioid 4 stewardship payment amount shall be one hundred million dollars annual- 5 ly, subject to downward adjustments pursuant to subdivision nine of this 6 section. 7 4. Reports and records. Each manufacturer and distributor licensed 8 under this article that sells or distributes opioids in the state of New 9 York shall provide to the commissioner a report detailing all opioids 10 sold or distributed by such manufacturer or distributor in the state of 11 New York. Such report shall include: 12 (a) the manufacturer's or distributor's name, address, phone number, 13 federal Drug Enforcement Agency (DEA) registration number and controlled 14 substance license number issued by the department; 15 (b) the name, address and DEA registration number of the entity to 16 whom the opioid was sold or distributed; 17 (c) the date of the sale or distribution of the opioid; 18 (d) the gross receipt total, in dollars, of all opioids sold or 19 distributed; 20 (e) the name and National Drug Code (NDC) of the opioid sold or 21 distributed; 22 (f) the number of containers and the strength and metric quantity of 23 controlled substance in each container of the opioid sold or distrib- 24 uted; 25 (g) the total number of morphine milligram equivalents (MMEs) sold or 26 distributed; and 27 (h) any other elements as deemed necessary by the commissioner. 28 4-a. Initial and future reports. (a) Such information shall be 29 reported annually to the department in such form as defined by the 30 commissioner, provided however that the initial report provided pursuant 31 to subdivision four shall consist of all opioids sold or distributed in 32 the state of New York for the two thousand seventeen calendar year, and 33 must be submitted by August 1, 2018. Subsequent annual reports shall be 34 submitted on April first of each year based on the actual opioid sales 35 and distributions of the prior calendar year. 36 (b) For the purpose of such annual reporting, MMEs shall be determined 37 pursuant to a formulation to be issued by the department and updated as 38 the department deems appropriate. 39 5. Determination of ratable share. Each manufacturer and distributor 40 licensed under this article that sells or distributes opioids in the 41 state of New York shall pay a portion of the total opioid stewardship 42 payment amount. The ratable share shall be calculated as follows: 43 (a) The total amount of MMEs sold or distributed in the state of New 44 York by the licensee for the preceding calendar year, as reported by the 45 licensee pursuant to subdivision four of this section, shall be divided 46 by the total amount of MME sold in the state of New York by all licen- 47 sees pursuant to this article to determine the licensee payment percent- 48 age. The licensee payment percentage shall be multiplied by the total 49 opioid stewardship payment. The product of such calculation shall be 50 the licensee's ratable share. The department shall have the authority 51 to adjust the total number of a licensee's MMEs to account for the 52 nature and use of the product, as well as the type of entity purchasing 53 the product from the licensee, when making such determination and adjust 54 the ratable share accordingly. 55 (b) The licensee's total amount of MME sold or distributed, as well as 56 the total amount of MME sold or distributed by all licensees under this
S. 7507--C 93 A. 9507--C 1 article, used in the calculation of the ratable share shall not include 2 the MME of those opioids which are: (i) manufactured in New York state, 3 but whose final point of delivery or sale is outside of New York state; 4 (ii) sold or distributed to entities certified to operate pursuant to 5 article thirty-two of the mental hygiene law, or article forty of the 6 public health law; or (iii) the MMEs attributable to buprenorphine, 7 methadone or morphine. 8 (c) The department shall provide to the licensee, in writing, on or 9 before October fifteenth, two thousand eighteen, the licensee's ratable 10 share for the two thousand seventeen calendar year. Thereafter, the 11 department shall notify the licensee in writing annually on or before 12 October fifteenth of each year based on the opioids sold or distributed 13 for the prior calendar year. 14 6. Payment of ratable share. The licensee shall make payments quarter- 15 ly to the department with the first payment of the ratable share, 16 provided that the amount due on January first, two thousand nineteen 17 shall be for the full amount of the first annual payment, with addi- 18 tional payments to be due and owing on the first day of every quarter 19 thereafter. 20 7. Rebate of ratable share. In any year for which the commissioner 21 determines that a licensee failed to report required information as 22 required by this section, those licensees complying with this section 23 shall receive a reduced assessment of their ratable share in the follow- 24 ing year equal to the amount in excess of any overpayment in the prior 25 payment period. 26 8. Licensee opportunity to appeal. A licensee shall be afforded an 27 opportunity to submit information to the department to justify why the 28 ratable share provided to the licensee, pursuant to paragraph (c) of 29 subdivision five of this section, or amounts paid thereunder are in 30 error or otherwise not warranted. If the department determines thereaft- 31 er that all or a portion of such ratable share, as determined by the 32 commissioner pursuant to subdivision five of this section, is not 33 warranted, the department may: (a) adjust the ratable share; (b) adjust 34 the assessment of the ratable share in the following year equal to the 35 amount in excess of any overpayment in the prior payment period; or (c) 36 refund amounts paid in error. 37 9. Department annual review. The department shall annually review the 38 amount of state operating funds spent in the office of alcoholism and 39 substance abuse services (OASAS) budget for opioid prevention, treatment 40 and recovery. The commissioner of OASAS shall certify to the department 41 the amount of annual spending for such services, utilizing available 42 information on patient demographics and the actual cost of services 43 delivered by the state and by state-funded providers. The certification 44 of such spending shall begin in state fiscal year two thousand eigh- 45 teen-nineteen, and continue annually thereafter. The total amount of 46 such spending shall be provided to the department by the commissioner of 47 OASAS no later than June thirtieth of each year. There shall be no 48 stewardship fund payments beginning on July first in the event state 49 operating funds spent in the OASAS budget for opioid prevention, treat- 50 ment and recovery in the most recently reported year is equal to or less 51 than state operating funds spent for such purposes in state fiscal year 52 two thousand nine-ten. 53 10. Penalties. (a) The department may assess a civil penalty in an 54 amount not to exceed one thousand dollars per day against any licensee 55 that fails to comply with subdivisions four and four-a of this section.
S. 7507--C 94 A. 9507--C 1 (b) In addition to any other civil or criminal penalty provided by 2 law, where a licensee has failed to pay its ratable share in accordance 3 with subdivision six of this section, the department may also assess a 4 penalty of no less than ten percent and no greater than three hundred 5 percent of the ratable share due from such licensee. 6 (c) Where the ratable share, or any portion thereof, has been passed 7 on to a purchaser by a licensee, the commissioner may impose a penalty 8 not to exceed one million dollars per incident. 9 § 2. Subdivision 1 of section 3316 of the public health law is amended 10 by adding a new paragraph (c) to read as follows: 11 (c) is unlikely during the period of his or her license to complete 12 the reports or to pay the ratable share required by title two-A of this 13 article on or before the required date. Prior evidence of non-compliance 14 shall constitute substantial evidence of such. 15 § 3. The state finance law is amended by adding a new section 97-aaaaa 16 to read as follows: 17 § 97-aaaaa. Opioid stewardship fund. 1. There is hereby established 18 in the joint custody of the state comptroller and the commissioner of 19 taxation and finance an account of the miscellaneous special revenue 20 account to be known as the "opioid stewardship fund". 21 2. Moneys in opioid stewardship fund shall be kept separate and shall 22 not be commingled with any other moneys in the custody of the state 23 comptroller and the commissioner of taxation and finance. 24 3. The opioid stewardship fund shall consist of moneys appropriated 25 for the purpose of such account, moneys transferred to such account 26 pursuant to law, contributions consisting of promises or grants of any 27 money or property of any kind or value, or any other thing of value, 28 including grants or other financial assistance from any agency of 29 government and moneys required by the provisions of this section or any 30 other law to be paid into or credited to this account. 31 4. Moneys of the opioid stewardship fund, when allocated, shall be 32 available, subject to the approval of the director of the budget, to 33 support programs operated by the New York state office of alcoholism and 34 substance abuse services or agencies certified, authorized, approved or 35 otherwise funded by the New York state office of alcoholism and 36 substance abuse services to provide opioid treatment, recovery and 37 prevention and education services; and to provide support for the 38 prescription monitoring program registry as established pursuant to 39 section thirty-three hundred forty-three-a of the public health law. 40 5. At the request of the budget director, the state comptroller shall 41 transfer moneys to support the costs of opioid treatment, recovery, 42 prevention, education services, and other related programs, from the 43 opioid stewardship fund to any other fund of the state to support this 44 purpose. 45 6. (i) Notwithstanding the provisions of any general or special law, 46 no moneys shall be available from the opioid stewardship fund until a 47 certificate of allocation and a schedule of amounts to be available 48 therefor shall have been issued by the director of the budget, upon the 49 recommendation of the commissioner of the office of alcoholism and 50 substance abuse services, and a copy of such certificate filed with the 51 comptroller, the chairman of the senate finance committee and the chair- 52 man of the assembly ways and means committee. 53 (ii) Such certificate may be amended from time to time by the director 54 of the budget, upon the recommendation of the commissioner of the office 55 of alcoholism and substance abuse services, and a copy of such amendment
S. 7507--C 95 A. 9507--C 1 shall be filed with the comptroller, the chairman of the senate finance 2 committee and the chairman of the assembly ways and means committee. 3 7. The moneys, when allocated, shall be paid out of the opioid 4 stewardship fund, pursuant to subdivision four of this section, and 5 subject to the approval of the director of the budget, on the audit and 6 warrant of the comptroller on vouchers certified or approved by (i) the 7 commissioner of the office of alcoholism and substance abuse services or 8 his or her designee; or (ii) the commissioner of the department of 9 health or his or her designee. 10 § 4. Severability. If any clause, sentence, paragraph, subdivision, or 11 section of this act shall be adjudged by any court of competent juris- 12 diction to be invalid, such judgment shall not affect, impair, or inval- 13 idate the remainder thereof, but shall be confined in its operation to 14 the clause, sentence, paragraph, subdivision, or section directly 15 involved in the controversy in which such judgment shall have been 16 rendered. It is hereby declared to be the intent of the legislature that 17 this act would have been enacted even if such invalid provisions had not 18 been included herein. 19 § 5. This act shall take effect July 1, 2018 and shall expire and be 20 deemed to be repealed on June 30, 2024, provided that, effective imme- 21 diately, the addition, amendment and/or repeal of any rule or regulation 22 necessary for the implementation of this act on its effective date are 23 authorized to be made and completed on or before such effective date. 24 § 2. Severability clause. If any clause, sentence, paragraph, subdivi- 25 sion, section or part of this act shall be adjudged by any court of 26 competent jurisdiction to be invalid, such judgment shall not affect, 27 impair, or invalidate the remainder thereof, but shall be confined in 28 its operation to the clause, sentence, paragraph, subdivision, section 29 or part thereof directly involved in the controversy in which such judg- 30 ment shall have been rendered. It has hereby declared to be the intent 31 of the legislature that this act would have been enacted even if such 32 invalid provisions had not been included herein. 33 § 3. This act shall take effect immediately provided, however, that 34 the applicable effective date of Parts A through NN of this act shall be 35 as specifically set forth in the last section of such Parts.