118 HR 9096 IH: Pharmacists Fight Back Act
U.S. House of Representatives
2024-07-23
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I
118th CONGRESS
2d Session
H. R. 9096
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.
1.

Short title
This Act may be cited as the “Pharmacists Fight Back Act”.
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.
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.”.