[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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