[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 9096 Introduced in House (IH)]
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118th CONGRESS
2d Session
H. R. 9096
To establish pharmacy payment and reimbursement by pharmacy benefits
managers; to amend title XIX of the Social Security Act to improve
prescription drug transparency; and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 23, 2024
Mr. Auchincloss (for himself and Mrs. Harshbarger) introduced the
following bill; which was referred to the Committee on Energy and
Commerce, and in addition to the Committees on Ways and Means,
Oversight and Accountability, and Armed Services, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
A BILL
To establish pharmacy payment and reimbursement by pharmacy benefits
managers; to amend title XIX of the Social Security Act to improve
prescription drug transparency; and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Pharmacists Fight Back Act''.
SEC. 2. PHARMACY PAYMENT AND REIMBURSEMENT.
(a) In General.--A pharmacy benefits manager (hereinafter referred
to as a ``PBM'') administering prescription drug benefits on behalf of
a Federal health care program, either directly or through an affiliate
of such PBM, shall, on behalf of such program--
(1) reimburse an in-network pharmacy for the ingredient
cost of a prescription drug in an amount equal to the sum of--
(A) the national average drug acquisition cost for
the drug on the day of claim adjudication (or, in the
case of a drug that does not appear on the national
average drug acquisition cost index, the wholesale
acquisition cost for such prescription drug); and
(B) an amount equal to 2 percent of the amount
described in subparagraph (A), or $25, whichever is
less;
(2) pay an in-network pharmacy a professional dispensing
fee that is equal to the professional dispensing fee paid by
the State in which the pharmacy is located under title XIX of
the Social Security Act (42 U.S.C. 1396 et seq.) for dispensing
a prescription drug; and
(3)(A) subject to subparagraph (B), calculate a
beneficiary's cost sharing requirement for a prescription drug
at the point of sale based on a price that is reduced by an
amount equal to at least 80 percent of all rebates received in
connection with the dispensing of the prescription drug; or
(B) in the case of a prescription drug for which the rebate
cannot be determined at the point of sale, calculate a
beneficiary's cost sharing requirement for a prescription drug
at the point of sale based on a price that is reduced by an
amount equal to 80 percent of the lesser of the average
aggregate rebate for such drug in the previous calendar year,
or the highest possible rebate that can be received for such
drug.
(b) Prohibited Actions.--A PBM administering prescription drug
benefits under a Federal health care program shall not--
(1) engage in steering;
(2) engage in any practice that restricts a beneficiary
from using any in-network pharmacy to fill a prescription drug;
(3) charge a beneficiary more for a prescription drug than
the amount of reimbursement made to the pharmacy that dispenses
such drug;
(4) require a beneficiary to obtain a brand name
prescription drug when a lower cost, AB-rated generic version
of such brand name drug is available;
(5) engage in spread pricing;
(6) lower, impose a fee, or otherwise make an adjustment to
a prescription drug claim at the time the claim for such drug
is adjudicated, or after the claim is adjudicated, that in any
way reduces the amount a pharmacy is reimbursed for such drug
pursuant to subsection (a), including a fee charged to a
pharmacy even if such fee is not tied to a prescription drug
claim; or
(7) engage in any practice that bases pharmacy
reimbursement for a prescription drug on pharmacy, patient, or
any other outcomes, scores, or metrics, provided that nothing
shall prohibit pharmacy reimbursement, in addition to
reimbursement pursuant to subsection (a), for providing care
and services within a pharmacy or a pharmacist's applicable
State scope of practice.
(c) Recoupment of Funds Pursuant to Audit.--A PBM may recoup funds
pursuant to an audit in compliance with applicable Federal and State
law in which--
(1) an overpayment or misfill was found to have occurred;
or
(2) in the case of fraud, provided that all amounts
recouped be passed back to the applicable Federal health care
program.
(d) Enforcement.--
(1) In general.--A PBM, or any person acting on behalf of a
PBM, that knowingly and willfully violates this Act shall be
guilty of a felony and, upon conviction thereof, shall be fined
not more than $1,000,000 for each act in violation, or
imprisoned for not more than 10 years, or both.
(2) Civil action.--A person may bring a civil action for
violation of this Act for the person and the United States
Government. The action shall be brought in the name of the
United States Government. The action may be dismissed only if
the court and the United States Attorney General give written
consent to the dismissal and their reasons for consenting. Any
such action shall be subject to the same terms, conditions, and
provisions set forth in section 3730 of title 31, United States
Code, which are hereby incorporated into this Act for purposes
of a civil action brought against a PBM, or any person acting
on behalf of a PBM, that knowingly and willfully violates this
Act.
(e) Definitions.--In this section:
(1) Affiliate.--The term ``affiliate'' means an entity,
including a pharmacy, that directly or indirectly through one
or more intermediaries--
(A) owns, controls, or has an investment interest
in a PBM;
(B) is owned, controlled by, or has an investment
interest holder who is a PBM; or
(C) is under common ownership or corporate control
of a PBM.
(2) Beneficiary.--The term ``beneficiary'' means a person
who receives prescription drug benefits pursuant to a Federal
health care program.
(3) Cost sharing requirement.--The term ``cost sharing
requirement'' means any coinsurance or deductible imposed on a
beneficiary for a prescription drug furnished under a Federal
health care program.
(4) Federal health care program.--The term ``Federal health
care program'' means a prescription drug plan under part D of
title XVIII of the Social Security Act, an MA-PD plan under
part C of such title, a managed care entity (as defined in
section 1932(a)(1)(B) of the Social Security Act (42 U.S.C.
1396u-2(a)(1)(B)), the Federal employees health benefits plan
under chapter 89 of title 5, United States Code, or the TRICARE
program (as defined in section 1072 of title 10, United States
Code).
(5) In-network pharmacy.--The term ``in-network pharmacy''
means a pharmacy that is licensed by the State board of
pharmacy in the State in which such pharmacy is located, that
fills or seeks to fill a prescription for a prescription drug
for a beneficiary, and is not an excluded entity and does not
have an owner or employee who is on a list of excluded
individuals or entities maintained by the Office of Inspector
General pursuant to section 1128 of the Social Security Act (42
U.S.C. 1320a-7).
(6) Pharmacy benefits manager.--The term ``pharmacy
benefits manager'' means a person, business entity, affiliate,
or other entity that performs pharmacy benefits management
services.
(7) Pharmacy benefits management services.--The term
``pharmacy benefits management services''--
(A) means the managing or administration of a plan
or program that pays for, reimburses, and covers the
cost of prescription drugs and medical devices; and
(B) includes the processing and payment of claims
for prescription drugs and the adjudication of appeals
or grievances related to the prescription drug benefit.
(8) Prescription drug.--The term ``prescription drug''
means a prescription drug covered by a Federal health care
program that is dispensed to a beneficiary for self-
administration.
(9) Rebate.--The term ``rebate'' means any payments and
concessions that accrue to a PBM or the plan sponsor client of
such PBM, directly or indirectly, including through an
affiliate, subsidiary, third party, or intermediary, including
an off-shore entity or group purchasing organization, from a
pharmaceutical manufacturer, its affiliate, subsidiary, third
party, or intermediary, including payments, discounts,
administration fees, credits, incentives, or penalties
associated directly or indirectly in any way with claims
administered by such PBM on behalf of a Federal health care
program.
(10) Spread pricing.--The term ``spread pricing'' means the
practice of a PBM charging a Federal health care program more
for a prescription drug than the amount such PBM pays a
pharmacy for a drug, including any post-sale or post-
adjudication fees, discounts, or adjustments, provided that
nothing herein shall be construed to allow post-sale or post-
adjudication fees, discounts, or adjustments where otherwise
prohibited by law.
(11) Steering.--The term ``steering'' means--
(A) directing, ordering, or requiring a beneficiary
to use a specific pharmacy or pharmacies, including an
affiliate pharmacy, for the purpose of filling a
prescription or receiving services or other care from a
pharmacist;
(B) offering or implementing health insurance plan
designs that require a beneficiary to utilize a
pharmacy or pharmacies, including an affiliate
pharmacy, or that increases costs to a Federal
healthcare program or a beneficiary, including
requiring a beneficiary to pay the full cost for a
prescription drug when such beneficiary chooses not to
use a PBM affiliate pharmacy;
(C) advertising, marketing, or promoting a
pharmacy, including an affiliate pharmacy, over another
in-network pharmacy;
(D) creating any network or engaging in any
practice, including accreditation or credentialing
standards, day supply limitations, or delivery method
limitations, that exclude an in-network pharmacy or
restrict an in-network pharmacy from filling a
prescription for a prescription drug; or
(E) directly or indirectly engaging in any practice
that attempts to influence or induce a pharmaceutical
manufacturer to limit the distribution of a
prescription drug to a small number of pharmacies or
certain types of pharmacies, or to restrict
distribution of such drug to non-affiliate pharmacies.
SEC. 3. IMPROVING PRESCRIPTION DRUG TRANSPARENCY UNDER THE MEDICAID
PROGRAM.
Section 1927(f) of the Social Security Act (42 U.S.C. 1396r-8(f))
is amended--
(1) in the subsection heading, by striking ``Retail'' and
inserting ``covered outpatient drug''; and
(2) in paragraph (1)--
(A) in the paragraph heading, by striking
``retail'' and inserting ``covered outpatient drug'';
(B) in subparagraph (A)(i), by striking ``retail
community pharmacy'' and inserting ``pharmacy that
dispenses covered outpatient drugs, including a retail
community pharmacy, mail-order pharmacy, specialty
pharmacy, nursing home pharmacy, long-term care
facility pharmacy, hospital pharmacy, or clinic
pharmacy (but not including a charitable pharmacy or a
not-for-profit pharmacy)'';
(C) in subparagraph (C)--
(i) in clause (i)--
(I) by striking ``retail''; and
(II) by striking ``prescription''
and inserting ``covered outpatient'';
and
(ii) in clause (ii), by striking ``retail
community'';
(D) in subparagraph (D)(ii), by striking
``retail'';
(E) in subparagraph (E), by striking the term
``retail'' each place it appears; and
(F) by adding at the end the following new
subparagraphs:
``(F) Survey reporting.--Each State shall require
that any pharmacy in such State that receives any
payment, reimbursement, administrative fee, discount,
or rebate related to the dispensing of a covered
outpatient drug to an individual receiving benefits
under this title, regardless of whether such payment,
fee, discount, or rebate is received from the State, a
managed care entity, or from a pharmacy benefits
manager that has a contract with a State or managed
care entity, shall respond to surveys of drug prices
conducted pursuant to subparagraph (A).
``(G) Survey information.--The Secretary shall make
information on national drug acquisition prices
obtained under this paragraph publicly available. Such
information shall include at least the following:
``(i) The monthly response rate of the
surveys conducted pursuant to subparagraph (A),
including a list of the pharmacies described in
subparagraph (F) that did not respond to such
survey.
``(ii) The sampling frame and number of
pharmacies sampled monthly.
``(iii) Information on price concessions to
each pharmacy, including discounts, rebates,
and other price concessions, to the extent that
such information is available during the survey
period.
``(H) Limitation on use of applicable non-retail
pharmacy pricing information.--No State or Federal
health care program shall use pricing information
reported by applicable non-retail pharmacies to develop
or inform reimbursement rates for retail community
pharmacies.''.
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