[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.