§ 250. Reimbursement to participating provider pharmacies. 1. The\namount of reimbursement which shall be paid by the state to a\nparticipating provider pharmacy for any covered drug filled or refilled\nfor any eligible program participant shall be equal to the allowed\namount defined as follows, minus the point of sale co-payment as\nrequired by sections two hundred forty-seven and two hundred forty-eight\nof this title:\n (a) Multiple source covered drugs. Except for brand name drugs that\nare required by the prescriber to be dispensed as written, the allowed\namount for a multiple source covered drug shall equal the lower of:\n (1) The pharmacy's usual and customary charge to the general public,\ntaking into consideration any quantity and promotional discounts to the\ngeneral public at the time of purchase, or\n (2) The upper limit, if any, set by the centers for medicare and\nmedicaid services for such multiple source drug, or\n (3) Average wholesale price discounted by twenty-five percent, or\n (4) The maximum allowable cost, if any, established by the\ncommissioner of health pursuant to paragraph (e) of subdivision nine of\nsection three hundred sixty-seven-a of the social services law.\n Plus a dispensing fee for drugs reimbursed pursuant to subparagraphs\ntwo, three, and four of this paragraph, as defined in paragraph (c) of\nthis subdivision.\n (b) Other covered drugs. The allowed amount for brand name drugs\nrequired by the prescriber to be dispensed as written and for covered\ndrugs other than multiple source drugs shall be determined by applying\nthe lower of:\n (1) Average wholesale price discounted by sixteen and twenty-five one\nhundredths percent, plus a dispensing fee as defined in paragraph (c) of\nthis subdivision, or\n (2) The pharmacy's usual and customary charge to the general public,\ntaking into consideration any quantity and promotional discounts to the\ngeneral public at the time of purchase.\n (c) As required by paragraphs (a) and (b) of this subdivision, a\ndispensing fee of four dollars fifty cents will apply to generic drugs\nand a dispensing fee of three dollars fifty cents will apply to brand\nname drugs.\n 2. For purposes of determining the amount of reimbursement which shall\nbe paid to a participating provider pharmacy, the commissioner of health\nshall determine or cause to be determined, through a statistically valid\nsurvey, the quantities of each covered drug that participating provider\npharmacies buy most frequently. Using the result of this survey, the\ncontractor shall update every thirty days the list of average wholesale\nprices upon which such reimbursement is determined using nationally\nrecognized and most recently revised sources. Such price revisions shall\nbe made available to all participating provider pharmacies. The\npharmacist shall be reimbursed based on the price in effect at the time\nthe covered drug is dispensed.\n 3. (a) Notwithstanding any inconsistent provision of law, the program\nfor elderly pharmaceutical insurance coverage shall reimburse for\ncovered drugs which are dispensed under the program by a provider\npharmacy only pursuant to the terms of a rebate agreement between the\nprogram and the manufacturer (as defined under section 1927 of the\nfederal social security act) of such covered drugs; provided, however,\nthat:\n (1) any agreement between the program and a manufacturer entered into\nbefore August first, nineteen hundred ninety-one, shall be deemed to\nhave been entered into on April first, nineteen hundred ninety-one; and\nprovided further, that if a manufacturer has not entered into an\nagreement with the department before August first, nineteen hundred\nninety-one, such agreement shall not be effective until April first,\nnineteen hundred ninety-two, unless such agreement provides that rebates\nwill be retroactively calculated as if the agreement had been in effect\non April first, nineteen hundred ninety-one; and\n (2) the program ma
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