[Congressional Record Volume 164, Number 79 (Tuesday, May 15, 2018)]
[Senate]
[Pages S2664-S2667]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                               Healthcare

  Ms. COLLINS. Mr. President, I rise today in support of legislation I 
have introduced with several of my colleagues--Senators Murkowski, 
Barrasso, Stabenow, and Cassidy--that would remove a barrier that 
prevents patients from getting the most affordable prescription drug 
prices at the pharmacy counter.
  Mr. President, Americans have the right to know which payment 
method--whether it is using insurance or paying with cash out of 
pocket--would provide the most savings when they are purchasing 
prescription drugs. The two bills we have introduced would establish 
some clarity in this incredibly opaque drug pricing system.
  Nearly 60 percent of Americans, including roughly 90 percent of 
seniors, take at least one prescription drug. In 2016, Americans spent 
more than $330 billion, including a staggering $45 billion out of 
pocket, on retail prescription drugs. The Federal Government picked up 
another $139 billion through Medicare, Medicaid, and other programs.
  Prescription drugs amount to nearly 18 percent of all healthcare 
expenditures and are the second fastest growing expenditure within 
healthcare. Moreover, two-thirds of personal bankruptcies in our 
country have been attributed to the cost of medical care, including 
prescription drugs. To make informed decisions, at the very least, we 
should have the right to know how much our prescription drugs cost.
  At a series of hearings held by the Senate HELP Committee, I have 
questioned repeatedly one particularly egregious practice that conceals 
prices from patients at the pharmacy counter. This practice is the 
result of what are known as ``pharmacy gag clauses.'' These are 
contract terms

[[Page S2665]]

that prohibit pharmacists from proactively telling consumers if their 
prescription would actually cost less if they paid for it themselves 
rather than using their insurance plan. In other words, if the consumer 
is using insurance, pharmacists can actually be prohibited from 
disclosing whether the consumer is paying the lowest possible price. In 
fact, the pharmacist is prohibited from sharing this vital information 
unless the consumer explicitly asks.
  Most consumers would never guess that it would be cheaper for them to 
pay out of pocket than to use their insurance plan to purchase the 
medicine they need. Insurance is intended to save consumers money in 
this situation, but that is not always the case. Gag clauses in 
contracts that prohibit pharmacists from telling patients how to obtain 
best prices obscure what the true cost of the drug could be and the 
fact that it could be lower than what the patient is paying. Several 
recent investigations, including by the New York Times and NBC News, 
have highlighted this unacceptable practice. For example, a consumer 
paid a copay of $43 for a cholesterol drug; however, had that same 
consumer paid cash rather than using his insurance, the cost would have 
been only $19. Another investigation told the story of a consumer who 
used insurance to pay $129 for a drug when the cost would have been 
just $18 had he paid out of pocket.
  From Maine to California, the stories are endless. And this practice 
is not an outlier issue. According to a survey by the National 
Community Pharmacists Association, more than 50 percent of community 
pharmacists reported that gag clause restrictions prevented them from 
telling patients about other less expensive options, such as paying in 
cash, at least 10 times in the past month.
  Recently, I was at the pharmacy counter at a grocery store in Maine, 
and the couple in front of me decided not to take the prescription they 
needed because the copay of $111 was more than they could afford. I 
could not help but wonder: If they hadn't used their insurance, would 
they have been able to purchase that drug at a lower price? It is so 
counterintuitive that very few consumers are going to think to ask the 
pharmacist that question.
  I first learned about these gag clauses from pharmacists in Maine who 
were frustrated that they were prohibited from providing their patients 
with information on the most cost-effective way for them to purchase 
the medication they had been prescribed. Pharmacists are barred from 
speaking up, and those who do face penalties for doing so. Pharmacists 
are on the frontlines in helping patients manage multiple medications, 
and they would also like to help ensure that their patients are getting 
the best, most affordable price.
  The first bill we have introduced, the Patient Right to Know Drug 
Prices Act, which is S. 2554--which I have cosponsored with the four 
Senators I mentioned, Senators McCaskill, Barrasso, Stabenow, and 
Cassidy--would prohibit pharmacy gag clauses in healthcare plans that 
are sold on the exchange and in group plans as well. The second bill, 
the Know the Lowest Price Act, which is S. 2553--which I am a lead 
cosponsor on with Senator Stabenow--would ban these clauses in Medicare 
Part D and Medicare Advantage plans.
  Specifically, both bills would prohibit health insurance plans and 
any pharmacy benefit managers with whom they contract from restricting 
the ability of a pharmacist to provide a plan enrollee with information 
about any price difference that may exist between the price of the drug 
under the insurance plan and the price of the drug purchased out of 
pocket. Our bills would also prohibit penalties from being imposed on 
any pharmacist who shares such vital and valuable information.

  Some States have already taken action to combat this problem. For 
example, the State of Maine enacted a law last year that prohibits 
charging an insurance enrollee a copayment or other charge that is 
higher than the cost of the drug to the pharmacy provider. The Maine 
law also protects pharmacists who disclose information related to out-
of-pocket costs from being penalized by insurance companies or PPMs 
under gag clauses. These are commonsense solutions.
  In announcing his drug pricing plan last week, the President, I am 
pleased to say, stated his intent to ban any gag clauses that would 
apply to pharmacies. While the administration can take some steps 
administratively to curb this practice, the enactment of our two bills 
would ensure that this protection for pharmacists and for patients is 
required under law.
  As consumers continue to face skyrocketing prescription drug prices, 
we ought to do all we can to ensure that Americans are getting the best 
prices possible. As Congress looks at innovative ways to bring down 
prices and to increase transparency throughout the healthcare system, 
our bills tackle an overlooked issue that directly affects consumers 
and pharmacies across our country.
  Our legislation has already received strong endorsements from more 
than a dozen organizations, including Patients for Affordable Drugs, 
the American Pharmacists Association, the Pharmaceutical Care 
Management Association, and other groups, ranging from the Arthritis 
Foundation to the AIDS Institute.
  I ask unanimous consent that these letters and statements be printed 
in the Record at the conclusion of my remarks.
  It is only logical that pharmacists want to be able to provide their 
customers with information that will help them afford the medications 
they have been prescribed. It is absolutely unacceptable for 
pharmacists in this country to be banned, under gag clauses, from 
providing that invaluable information to patients, particularly those 
who may be struggling with the cost of prescription drugs.
  I urge my colleagues to support banning pharmacy gag clauses and the 
passage of both S. 2554 and S. 2553.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                      Patients for


                                         Affordable Drugs Now,

                                                    April 2, 2018.
     Hon. Senator Susan Collins,
     Washington, DC.
     Hon. Senator Claire McCaskill,
     Washington, DC.
     Hon. Senator Debbie Stabenow,
     Washington, DC.
     Hon. Senator John Barrasso,
     Washington, DC.
     Hon. Senator Bill Cassidy,
     Washington, DC.
     Hon. Senator Ron Wyden,
     Washington, DC.
       Dear Senators Collins, McCaskill, Stabenow, Barrasso, 
     Cassidy, and Wyden: As an organization that represents 
     patients hurt by high prescription drug prices, Patients For 
     Affordable Drugs NOW is acutely aware of the importance of 
     patient access to information on drug prices. Today we are 
     writing to endorse The Patient Right to Know Drug Prices Act 
     (S. 2554) and The Know the Lowest Price Act (S. 2553).
       Pharmacy Benefit Managers (PBMs) often write contracts that 
     prevent local pharmacists from communicating with patients 
     openly about the prices of drugs. PBMs are a black box in the 
     drug distribution pipeline, and these contracts extend their 
     lack of transparency into our community pharmacies.
       Patients For Affordable Drugs NOW has heard from patients 
     all over the country who are cutting pills in half, skipping 
     doses, and going without food to pay for their drugs. It's 
     wrong. At the very least these patients deserve to understand 
     where their costs come from and how to find the best price 
     for the drugs they need. Your leadership on this issue is 
     greatly appreciated, and these bills are a step toward giving 
     patients the information they deserve.
       Patients For Affordable Drugs NOW strongly supports S. 2554 
     and S. 2553 and urges Congress to move quickly in passing 
     them.
           Sincerely,

                                               David Mitchell,

                                                          Founder,
     Patients For Affordable Drugs NOW.
                                  ____



                             American Pharmacists Association,

                                                   March 22, 2018.
     Hon. Susan Collins,
     Washington, DC.
     Hon. Claire McCaskill,
     Washington, DC.
       Dear Senators Collins and McCaskill: On behalf of the 
     American Pharmacists Association (APhA), and our 64,000 
     members, I am pleased to announce our support for the Patient 
     Right to Know Drug Prices Act, S. 2554--legislation to 
     permanently remove a significant barrier imposed on 
     pharmacists from pharmaceutical benefit managers' (PBMs) use 
     of ``gag clauses'' in contracts. APhA appreciates your 
     efforts to increase patients' access to more affordable and 
     cost-effective medicines by empowering pharmacists to inform 
     patients that a medication may be less expensive if purchased 
     at the ``cash price,'' rather than through their insurance 
     plan. For years pharmacists have

[[Page S2666]]

     been frustrated by their inability to help their patients who 
     they knew were struggling with high co-payments.
       APhA, founded in 1852 as the American Pharmaceutical 
     Association, represents pharmacists, pharmaceutical 
     scientists, student pharmacists, pharmacy technicians, and 
     others interested in improving medication use and advancing 
     patient care. APhA members provide care in all practice 
     settings, including community pharmacies, physicians' 
     offices, hospitals, long-term care facilities, community 
     health centers, managed care organizations, hospice settings 
     and the uniformed services.
       America's 300,000 pharmacists are the health care 
     professionals most often at the front lines of informing 
     patients about their medication costs or copay amounts and 
     explaining complicated insurance coverage policies. However, 
     under many contracts with PBMs, pharmacists cannot inform 
     patients that a medicine is less expensive if they pay the 
     cash price and do not run it through their health plans.
       Thank you for your efforts in removing this barrier on 
     pharmacists--the medication expert on the patient's health 
     care team--to assist patients in receiving the affordable 
     medications they need. APhA is committed to working 
     collaboratively with you and other stakeholders to improve 
     the accessibility and affordability of effective medications. 
     If you have any questions or require additional information, 
     please contact Alicia Kerry J. Mica, Senior Lobbyist, 
     Government Affairs.
           Sincerely,

                                           Thomas E. Menighan,

                                   BSPharm, MBA, ScD (Hon), FAPhA,
     Executive Vice President and CEO.
                                  ____


                      [From PCMA, March 15, 2018]

       PCMA Responds to ``Patient Right to Know Drug Prices Act''

       Washington, DC.--The Pharmaceutical Care Management 
     Association (PCMA) released the following statement on 
     legislation, the ``Patient Right to Know Drug Prices Act,'' 
     introduced today in the Senate:
       ``We support the patient always paying the lowest cost at 
     the pharmacy counter, whether its the cash price or the 
     copay. This is standard industry practice in both Medicare 
     and the commercial sector.
       We would oppose contracting that prohibits drugstores from 
     sharing with patients the cash price they charge for each 
     drug. These rates are set entirely at the discretion of each 
     pharmacy and can vary significantly from drugstore to 
     drugstore.
       Fortunately: to the degree this issue was ever rooted in 
     more than anecdotal information, it has been addressed in the 
     marketplace.''
                                  ____

                                                   April 16, 2018.
     Hon. Susan Collins,
     U.S. Senate,
     Washington, DC.
     Hon. John Barrasso,
     U.S. Senate,
     Washington, DC.
     Hon. Debbie Stabenow,
     U.S. Senate,
     Washington, DC.
     Hon. Claire McCaskill,
     U.S. Senate,
     Washington, DC.
     Hon. Bill Cassidy,
     U.S. Senate,
     Washington, DC.
       Dear Senators Collins, McCaskill, Barrasso, Cassidy, and 
     Stabenow: On behalf of the patient and provider organizations 
     listed below, all of which are members of the Coalition for 
     Accessible Treatments, we write in support of the bipartisan 
     Patient Right to Know Drug Prices Act (S. 2554), which would 
     prohibit health plans offered through the exchanges or by 
     private employers from using so-called gag clauses that can 
     be used to prohibit the disclosure of pricing options to 
     patients.
       We are also supportive of legislation you introduced with 
     Senator Wyden, the Know the Lowest Price Act (S. 2553). The 
     bill would similarly afford protections for patients enrolled 
     in Medicare Advantage plans and Medicare Prescription Drug 
     Plans.
       As you know, some pharmacists are required to sign ``gag 
     orders,'' which typically apply to generics and prevent the 
     patient from making the cheaper choice of paying out-of-
     pocket rather than paying a higher co-payment. In fact, in 
     some cases if a patient were to pay the cash price, they 
     would pay less for their medication than if they used their 
     health insurance. However, a pharmacist that has signed a gag 
     order would be prohibited from informing a patient of this 
     option.
       Research published earlier this month in the Journal of the 
     American Medical Association found that overpayments affected 
     23 percent of prescriptions filled out of the nearly 10 
     million claims that were evaluated. The study also calculated 
     that these overpayments totaled $135 million in 2013.
       Thank you for your leadership. It is critical that patients 
     are made aware of payment options at the pharmacy counter and 
     understand whether utilizing insurance or paying out-of-
     pocket would provide the most savings to purchase needed 
     medication. We look forward to working with you on these and 
     other important access issues affecting patients with chronic 
     diseases.
           Sincerely,
         The AIDS Institute, American Academy of Dermatology 
           Association, American Academy of Neurology, American 
           Autoimmune Related Diseases Association, American 
           College of Rheumatology, Arthritis Foundation, 
           Hematology/Oncology Pharmacy Association, Leukemia & 
           Lymphoma Society, Lupus and Allied Diseases 
           Association, Inc., National Psoriasis Foundation, 
           Sjogren's Syndrome Foundation.
                                  ____



                                                   CVS Health,

                                   Woonsocket, RI, March 15, 2018.

 CVS Health Applauds New Legislation to Better Inform Pharmacy Choices


  Bipartisan ``Patient Right to Know Drug Prices Act'' and ``Know the 
        Lowest Price Act of 2018'' introduced in the U.S. Senate

       Woonsocket, R.I., March 15, 2018--CVS Health (NYSE: CVS) 
     today released the following statement regarding the 
     ``Patient Right to Know Drug Prices Act,'' introduced by U.S. 
     Senators Collins, McCaskill, Barrasso, Stabenow and Cassidy 
     and the ``Know the Lowest Price Act of 2018,'' introduced by 
     U.S. Senators Stabenow, Collins, Wyden, Cassidy, McCaskill 
     and Barrasso. These bills prevent companies from instituting 
     contract provisions, known as ``gag clauses,'' which prohibit 
     pharmacists from informing patients if the cash price of a 
     prescription is lower than the cost the patient would pay 
     using their health insurance.
       ``CVS Health applauds the introduction of the ``Patient 
     Right to Know Drug Prices Act,'' and the ``Know the Lowest 
     Price Act of 2018,'' which will help ensure all consumers can 
     make informed decisions about their prescription drug costs 
     at the pharmacy counter. CVS Health's own pharmacy benefit 
     manager, CVS Caremark, does not engage in the practice of 
     preventing pharmacists from informing patients of the cash 
     price of a prescription drug, known as ``gag clauses.'' 
     Actually, our contracts with all dispensing pharmacies in our 
     network require that CVS Caremark members always get the 
     benefit of at least the lower of the pharmacy's cash price 
     and the plan's copay. If a CVS Caremark plan member's copay 
     for a drug is greater than the dispensing pharmacy's 
     contracted rate, it is not our practice to collect that 
     difference from the pharmacy. We are pleased to see these 
     bills align the industry to these consumer best practices and 
     applaud Senators Collins, Stabenow, Wyden, McCaskill, 
     Barrasso, and Cassidy for their leadership.''
                                  ____


                [From CISION PR Newswire, Mar. 16, 2018]


  express scripts endorses ``know the lowest price act of 2018'' and 
               ``patient right to know drug prices act''

                          (By Express Scripts)

       St. Louis, March 16, 2018 /PRNewswire/--Express Scripts 
     (NASDAQ: ESRX) today released this statement in support of S. 
     2553, the ``Know the Lowest Price Act of 2018,'' introduced 
     by U.S. Senators Stabenow, Collins, Wyden, Cassidy, McCaskill 
     and Barrasso, and S. 2554, the ``Patient Right to Know Drug 
     Prices Act,'' introduced by U.S. Senators Collins, McCaskill, 
     Barrasso, Stabenow and Cassidy.
       Express Scripts is against clawbacks and gag clauses, anti-
     patient practices that have been used by other pharmacy 
     benefit managers.
       ``Express Scripts has long supported the goals of S. 2553 
     and S. 2554, and we have worked with state lawmakers across 
     the country to prohibit the anti-consumer practice of so-
     called ``gag clauses.'' We applaud the Senators for leading 
     on this important issue. Since we are already in compliance, 
     we are prepared for an effective date of today.
       ``Drug makers want plan sponsors and patients to think that 
     pharmacy benefit managers gain from this anti-consumer 
     practice, which is clearly not the case. We encourage swift 
     consideration of S. 2553 and S. 2554 so lawmakers can focus 
     on the real issue--high drug prices set by manufacturers.''
       As part of its mission to put medicine within reach of 
     patients, Express Scripts believes its members should pay the 
     lowest cost possible, and be informed about the out of pocket 
     cost of their medication in advance of filling a 
     prescription. We provide members real-time pricing 
     information, customized to their individual plans, via our 
     website and mobile app. Moreover, pharmacies in our retail 
     network are not permitted to charge a member more for their 
     copay under their benefit than the pharmacy's cash price.
       While there is never an instance where a pharmacist or 
     pharmacy would need to tell an Express Scripts member about a 
     lower cost by paying cash because the claim would process at 
     the lower cost, we agree that so-called ``gag clauses'' are 
     not in patients' best interest. Therefore, they are not part 
     of our retail network agreements.
       More information on this issue can be found at: http://
lab.express-scripts.com/lab/insights/drug-options/keeping-
copays-affordable.

  Ms. COLLINS. I yield the floor.
  The PRESIDING OFFICER (Mr. Flake). The Senator from Indiana.
  Mr. DONNELLY. Mr. President, I commend my friend and colleague from 
Maine who has been such an extraordinary leader on these issues. She is 
the chairwoman of our Aging Committee. We recently had a hearing on how 
we can do better on pricing for insulin diabetes products. She is 
tireless,

[[Page S2667]]

and we are very grateful for her hard work.