Legislative Action Center

What is SB 826/HB 1542

Yesterday, April 25, our entire PBM bill (HB 1542 sponsored by Representative Lynn Morris) was amended onto SB 826 - our other pharmacy bill. 

The key provisions of the bill deal with co-pay clawbacks, "gag-clauses", DIR fees and reimbursement metrics and Department of Insurance oversight/regulation of PBM's.

This needs your immediate attention. The language on SB 826, sponsored by Senator Sater, includes the following three key pieces:
  1. Prohibits gag clauses –precludes a PBM from imposing gag clauses in their contracts with pharmacists regarding pharmacist’s communications with their patients and plan sponsors.(Ins co’s, TPA’s or self-insured’s). 
  2. Prohibits a PBM from imposing a copayment on a patient that is greater than the cost of the drug. 
  3. Prohibits a PBM from using clawbacks/DIR fees, by requiring them to inform the pharmacist at the point of sale the amount they are going to pay for the prescription. 
We need ALL three pieces. Without all three, it is like only having three tires on your car. If they only enact the first two prohibitions, then DIR fees will still claw back money from adjudicated prescriptions. This will de-incentivize pharmacists from notifying customers of paying a lower amount if a portion of the script payment remains subject to any clawback provision. 
The example that has shocked legislators is the “clawback” scenario, where a person, or their employer on their behalf, pay their monthly premium to the insurer, then is required by their plan to pay a copay amount that is greater than the cash price of the prescription, which is then recaptured (clawed) from the pharmacy by the Pharmacy Benefit Manager. The “clawback” scheme is not the only mechanism they use to do this. 
There is a like scheme with a different name, that allows PBM’s to accomplish the same result as above, except now they call it a DIR fee (Direct and Indirect Remuneration). Note that SB 826 does not affect Medicare plans. While Express Scripts is fighting this bill strongly, they do not use DIR fees in state-regulated plans and claim they won't use them in the future, however, they are still focused on that part of the bill as their primary opposition. 

Communicating To Your Legislator

When talking to your legislator, use your own examples and experiences with this issue, BUT confine your comments to this issue only. Be sure your explanations are thorough and do not use pharmacy lingo – layman’s terms, please. If you talk to them about multiple injustices at one time, it will be too overwhelming.
  1. Call and follow up with an email with your story specific to the copayment clawback issue, and how the PBM’s tell you they will reimburse you one rate at the time of sale and then send you payment of another amount. Our bill does not set the rate they have to pay us, but they have to tell us at the point of sale the amount they will actually reimburse us. You can not retrieve the prescription after the fact and rely on the payment information they state at the time of sale.
  2. Ask for their support of SB 826 by Senator Sater, to fix these issues. 

CLICK HERE for a list of Senators and their phone numbers. 

For reference, following is language in the bill for your reference when speaking to your legislator:

“2.  No pharmacy benefits manager shall charge or collect from a covered person a co-payment for a prescription or pharmacy service that exceeds the amount retained by the pharmacist or pharmacy from all payment sources for filling the prescription or providing the service.”

“3.  No pharmacy benefits manager shall prohibit a pharmacist or pharmacy with which the pharmacy benefits manager has entered a contract from interacting with the patient and plan sponsor about their pharmacy benefit manager.” 

“5.  No pharmacy benefits manager shall charge or hold a pharmacist or pharmacy responsible for any fee that is related to a claim unless the amount of the fee can be determined and has been disclosed to the pharmacist or pharmacy at the time of the claim’s adjudication.”

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