[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3330 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                S. 3330

 To require the Secretary of Labor to conduct a study on the fiduciary 
                  duties of pharmacy benefit managers.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 15, 2023

  Mr. Braun (for himself, Ms. Hassan, Mr. Marshall, Mr. Budd, and Mr. 
Kaine) introduced the following bill; which was read twice and referred 
       to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
 To require the Secretary of Labor to conduct a study on the fiduciary 
                  duties of pharmacy benefit managers.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. STUDY ON FIDUCIARY DUTIES OF PHARMACY BENEFIT MANAGERS.

    (a) In General.--Not later than 2 years after the date of enactment 
of this Act, the Secretary of Labor shall conduct, and submit to 
Congress a report describing the results of, a study on the impacts of 
a change in policy described in subsection (b).
    (b) Policy Described.--Under a policy referred to in subsection 
(a)--
            (1) an entity providing pharmacy benefit management 
        services would be considered a fiduciary within the meaning of 
        section 3(21) of the Employee Retirement Income Security Act of 
        1974 (29 U.S.C. 1002(21)) with respect to a group health plan 
        or group health insurance coverage;
            (2) such an entity would--
                    (A) be subject to the responsibilities, 
                obligations, and duties imposed on fiduciaries under 
                part 4 of subtitle B of title I of such Act (29 U.S.C. 
                1101 et seq.); and
                    (B) make the required fiduciary disclosure under 
                section 408(b)(2)(B)(iii) of such Act (29 U.S.C. 
                1108(b)(2)(B)(iii)) with respect to the pharmacy 
                benefit management services provided to the plan or 
                coverage;
            (3) nothing would be construed to prohibit entities 
        providing pharmacy benefits management services from retaining 
        bona fide service fees in accordance with the requirements of 
        section 408(b)(2) of the Employee Retirement Income Security 
        Act of 1974 (29 U.S.C. 1108(b)(2)); and
            (4) bona fide service fees would be per se unreasonable for 
        purposes of this section and such section if such fees are--
                    (A) based on drug price (such as wholesale 
                acquisition cost) or drug benchmark price (such as 
                average wholesale price);
                    (B) discounts, rebates, fees, or other remuneration 
                with respect to prescription drugs prescribed to 
                participants or beneficiaries in the plan or coverage; 
                or
                    (C) otherwise determined by the Secretary to be 
                unreasonable.
    (c) Definitions.--In this section:
            (1) Bona fide service fees.--The term ``bona fide service 
        fees'' means fees paid by a manufacturer, customer, or client 
        (other than a group health plan or health insurance issuer) of 
        an entity providing pharmacy benefit management services, to an 
        entity providing pharmacy benefit management services, that 
        represent fair-market value for bona fide, itemized services 
        actually performed on behalf of the manufacturer, customer, or 
        client and that the manufacturer, customer, or client would 
        otherwise perform or contract for in the absence of the service 
        arrangement, and that are not passed on in whole or in part to 
        a client or customer of an entity, whether or not the entity 
        takes possession of the drug.
            (2) Wholesale acquisition cost.--The term ``wholesale 
        acquisition cost'' has the meaning given such term in section 
        1847A(c)(6)(B) of the Social Security Act (42 U.S.C. 1395w-
        3a(c)(6)(B)).
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