[Congressional Record Volume 164, Number 158 (Tuesday, September 25, 2018)]
[House]
[Pages H8799-H8801]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   KNOW THE LOWEST PRICE ACT OF 2018

  Mr. BURGESS. Madam Speaker, I move to suspend the rules and pass the 
bill (S. 2553) to amend title XVIII of the Social Security Act to 
prohibit health plans and pharmacy benefit managers from restricting 
pharmacies from informing individuals regarding the prices for certain 
drugs and biologicals.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                                S. 2553

       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 ``Know the Lowest Price Act of 
     2018''.

     SEC. 2. PROHIBITION ON LIMITING CERTAIN INFORMATION ON DRUG 
                   PRICES.

       (a) In General.--Section 1860D-4 of the Social Security Act 
     (42 U.S.C. 1395w-104) is amended by adding at the end the 
     following new subsection:
       ``(m) Prohibition on Limiting Certain Information on Drug 
     Prices.--A PDP sponsor and a Medicare Advantage organization 
     shall ensure that each prescription drug plan or MA-PD plan 
     offered by the sponsor or organization does not restrict a 
     pharmacy that dispenses a prescription drug or biological 
     from informing, nor penalize such pharmacy for informing, an 
     enrollee in such plan of any differential between the 
     negotiated price of, or copayment or coinsurance for, the 
     drug or biological to the enrollee under the plan and a lower 
     price the individual would pay for the drug or biological if 
     the enrollee obtained the drug without using any health 
     insurance coverage.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply to plan years beginning on or after January 1, 
     2020.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Texas (Mr. Burgess) and the gentleman from New Jersey (Mr. Pallone) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Texas.


                             General Leave

  Mr. BURGESS. Madam Speaker, I ask unanimous consent that all Members 
have 5 legislative days to revise and extend their remarks and insert 
extraneous materials into the Record on the bill.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  There was no objection.
  Mr. BURGESS. Madam Speaker, I yield myself such time as I may 
consume.
  Madam Speaker, I rise in support of S. 2553, the Know the Lowest 
Price Act of 2018. This bill would prohibit health plans and pharmacy 
benefit managers under Medicare or Medicare Advantage from restricting 
pharmacies from informing individuals about prices for certain drugs 
and biologics at the pharmacy counter, a practice commonly referred to 
as a gag clause.
  These clauses prohibit pharmacists from informing patients that 
paying in cash will result in lower out-of-pocket costs than the 
insurer's cost-sharing arrangement unless the patient directly asks. 
This is a policy that the Energy and Commerce Committee has pursued in 
H.R. 6733, the Know the Cost Act of 2018. We held a legislative hearing 
and a markup in the Health Subcommittee before ultimately passing the 
bill out of the full committee.
  Once again, I want to commend Representative Buddy Carter for 
championing this policy. His bill would have banned gag clauses in 
group and commercial health insurance plans, as well as for 
prescription drug plan sponsors for Medicare part D, or Medicare 
Advantage plans.
  As an original cosponsor of H.R. 6733, I believe these bills banning 
gag clauses are essential in both lowering drug costs for individuals 
and freeing pharmacists to do what many consider to be the right thing.
  I am surprised Congress has not acted sooner to ban health insurance 
plans from using gag clauses. I am glad to see these bills on the House 
floor today. This will allow pharmacists to

[[Page H8800]]

look out for their patients' pocketbooks and help them get their 
medications at the lowest possible price.
  This bipartisan policy has been a shared priority for many Members on 
the Energy and Commerce Committee. Our Senate counterparts had a shared 
interest in this sound and reasonable policy, and recently advanced it 
out of their Chamber.
  The issue of gag clauses was further brought up to the forefront by 
the Trump administration's drug pricing blueprint which was released 
this May. The President proposed eliminating gag clauses as a solution 
in his plan to address rising drug prices.

                              {time}  1630

  I, too, believe that allowing pharmacists to disclose the cost-saving 
potential of paying out-of-pocket to patients at the point of sale is 
an important piece of the drug pricing puzzle. While gag clauses are 
already prohibited in Medicare through regulation, it makes sense that 
we protect our seniors by putting this language in statute and sending 
S. 2553 to the President's desk.
  This legislation should serve as an example of how the House and the 
Senate can work together to accomplish a goal to swiftly pass and send 
to the President for his signature.
  There have been news stories across the country from the New York 
Times--two investigations in my market--and CBS 11 in the Dallas-Fort 
Worth area about how consumers can save money at the pharmacy counter 
by getting around gag clauses and directly asking their pharmacist: Is 
this cheaper for me to pay cash and not use my insurance?
  Kelly Selby, a community pharmacist and pharmacy owner in north 
Texas, has told me about the problems that gag clauses cause at his own 
pharmacy. He says that a gag clause has a chilling effect as a pharmacy 
owner and a pharmacist, and that the pharmacy benefit managers will 
call you after you break a gag clause and threaten you with canceling 
their contract. Even if pharmacists have what is in the best interest 
to their customers at heart, Mr. Selby told me that, overnight, he 
could lose 40 percent of his business, taken away by the power of 
pharmacy benefit managers.
  It is unfair for pharmacists across our country like Kelly to have to 
choose between hiding useful cost information from their patients and 
losing their other contacts.
  Eliminating gag clauses is an integral part of driving down 
healthcare costs and prescription drug prices, an issue that hits home 
with each and every one of our constituents. It may not solve the 
entire drug pricing dilemma, but it is an essential piece. When this 
bill becomes law, it will make a real difference in the lives of 
patients across the country.
  Mr. Speaker, I support S. 2553, and I urge fellow Members to support 
this legislation. Let's send it to the President's desk for his 
signature.
  Mr. Speaker, I reserve the balance of my time.
  Mr. PALLONE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I already spoke in support of both this bill, S. 2553, 
and the previous one, S. 2554, so, at this time, I yield such time as 
he may consume to the gentleman from Texas (Mr. Doggett).
  Mr. DOGGETT. Mr. Speaker, I thank the gentleman for yielding.
  Mr. Speaker, I continue to hear from neighbors in my part of Texas 
and beyond who are unable to afford their prescription drugs, 
lifesaving drugs. They are cutting back on necessities, cutting pills 
in half, or cutting into what little savings they may have.
  After seeking administrative action to address this gag order problem 
with no success, I introduced with Senators Stabenow and Collins here 
in the House, along with 32 colleagues, a House bill to do what their 
measures do today.
  Despite repeated requests, the House Ways and Means Committee, which 
enjoys jurisdiction over this matter as a Medicare bill, along with the 
Commerce Committee, declined to consider them.
  This particular bill that we are considering now will allow those 
Medicare beneficiaries, seniors and individuals with disabilities, to 
turn to a professional pharmacist to learn if there is information 
available that, on a particular drug, they might be able to get a less 
expensive alternative by paying cash.
  While pleased that this modest Know the Lowest Price bill will become 
law, we have had too much aiming low and shooting low in this Congress 
that has really been indifferent to the overall plight of seniors 
burdened with exorbitant prescription drug costs.
  What a low bar that has been set. Patients want real change on this 
matter. Yet, we do the least possible to address this problem. We take 
baby steps when bold steps are required. To borrow from Mark Twain, I 
believe seniors can recognize the difference between lightning and a 
lightning bug, like we are getting today.
  While this may enable some to learn the lowest available price, I 
believe what we need to find out about is the highest price that is 
being extorted in too many cases. The sky seems to be the limit. 
Whatever can be obtained from someone who is sick or dying seems to be 
the price point.
  We may be able to cure some cancers and diseases--we want to 
encourage a price that will encourage continued innovation--but it need 
not come at the levels that are being charged too many people today 
only because this Congress is unwilling to curb the government monopoly 
that it has granted.
  Pharmaceutical pricing is a tangled knot. There is no one panacea. 
Every step forward is a good step forward.
  I formed a House Prescription Drug Task Force three years ago to 
begin to look at administrative and legislative steps in how we 
encourage innovation without being exploited by monopoly prices.
  I think there is much more we can do, much more for someone like Bob 
from San Antonio, who has suffered from crippling arthritis for 
decades. He has seen the prescription that he relies on skyrocket from 
about $200 a year to $22,000 in co-payments annually. He finally had to 
switch to a less expensive drug and lives with the fear that it will 
not adequately cover his pain, even though it has become too painful to 
afford it.
  Patients like Bob need much more than modest bills. We need a 
Congress that does not repeatedly cave in to the Big Pharma lobbyists. 
What is happening this week, this very week, is yet another reminder of 
the choice that has been made between a special interest and the needs 
of seniors.
  With the active assistance of the Majority Leader, Big Pharma tried 
to exploit bipartisan opioid legislation and further burden patients 
with a provision undoing what had been a bipartisan agreement that 
helped plug the so-called donut hole and lowered patients' out-of-
pocket drug spending in Medicare.
  Pharma's plan would save them $4 billion, but the costs would have 
been shifted either to our seniors and individuals with disabilities 
directly or through the premiums that they pay.
  Unable to defend this heist on its merits of flawed and misleading 
advertisements, and a hoard of lobbyists who have been here to try to 
get that $4 billion, I hope that we have it stopped. Hopefully, in 
fact--speak of hope--in a new Congress, we can see some action on what 
really might make a difference, and that is the ability of Medicare to 
negotiate for our seniors to get lower prices in much the same way the 
Veterans Administration does for our veterans.
  I have introduced, along with almost 90 sponsors, the Medicare 
Negotiation and Competitive Licensing Act to harness the purchasing 
power of the government through the Health and Human Services 
Secretary. If negotiations fail, the Secretary would use good old 
American competition to lower them, bringing in generics, bidding, and 
competition, a real American way to solve what is a serious American 
problem.
  Patients should not have to fight their insurer or a drug company 
when they need to be fighting their disease. Patients need this 
Congress to reclaim its voice and to not be gagged any longer. It can 
no longer let Big Pharma and its agenda define the debate. Instead, we 
need to end Big Pharma's exploitation of patients in order to get 
windfall profits.
  Mr. BURGESS. Mr. Speaker, I am pleased to yield such time as he may 
consume to the gentleman from Georgia (Mr. Carter).

[[Page H8801]]

  

  Mr. CARTER of Georgia. Mr. Speaker, I thank the gentleman for 
yielding.
  Mr. Speaker, I want to mark this as an important day for this 
Congress taking real steps to lower the cost of drugs for Americans.
  I am proud to have been the lead sponsor for H.R. 6733, the Know the 
Cost Act of 2018, a bill that includes the core elements of this bill 
and expands patient protections.
  Currently, pharmacists are prevented from telling their patients 
about a lower cost out-of-pocket option rather than utilizing insurance 
coverage. These gag clause provisions are included in provider manuals 
and contracts that require broad confidentiality agreements for 
pharmacists.
  Often, these contracts offered by the pharmacy benefit manager, the 
PBM, are a take-it-or-leave-it situation where the pharmacist doesn't 
have any other options. If they opt not to take the contract, they are 
often left out of servicing large segments of the patient market.
  Gag clauses can come in many forms, such as confidentiality 
agreements between pharmacists and plan sponsors, nondisparagement 
clauses, and even prohibitions on contacting sponsors, the media, and 
elected officials. As a result, pharmacists cannot have a transparent 
relationship with their patients or provide them necessary information 
that could help guide their best treatment options.
  Senator Stabenow's bill, the Know the Lowest Price Act of 2018, bans 
these types of gag clauses in Medicare Advantage drug plans. Although 
this bill does not contain requirements for beneficiary notification 
that my bill, the Know the Cost Act of 2018, included, it is still an 
important step forward.
  Banning gag clauses has received national support from State 
legislatures, both Chambers of Congress, HHS, and the President.
  As the only pharmacist currently serving in Congress, I know all too 
well about the constraints placed on pharmacists as part of the take-
it-or-leave-it contracts, where the pharmacist has no other option if 
they want to continue providing care for their patients in their 
community.
  Mr. Speaker, I thank all of my colleagues on both sides of the aisle 
for their help in bringing this legislation forward. I particularly 
thank Chairman Burgess. Also, a shout-out to our staff, who has done an 
outstanding job of bringing this all together.
  Mr. Speaker, I ask all my colleagues to vote in favor of this bill.
  Mr. PALLONE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, in closing, I support these two bills, this one and the 
previous one. I do think that they are good, bipartisan measures. But I 
do want to repeat what Mr. Doggett said, that this Congress and the 
next have to do a lot more to deal with the issue of prescription drug 
prices. Probably the most effective thing, which I support, is 
negotiated prices under Medicare, as well as trying to do more with 
generic drugs.
  Mr. Speaker, I urge support for the bill, and I yield back the 
balance of my time.
  Mr. BURGESS. Mr. Speaker, I yield myself the remainder of my time.
  Mr. Speaker, I urge Members to support this important legislation, 
and I yield back the balance of my time.
  Ms. JACKSON LEE. Mr. Speaker, I rise in support of S. 2553, the 
``Know the Lowest Price Act of 2018.''
  S. 2553 amends title XVIII of the Social Security Act to prohibit 
health plans and pharmacy benefit managers from restricting pharmacies 
from informing individuals regarding the prices for certain drugs and 
biologicals.
  A Prescription Drug Plan (PDP) sponsor and a Medicare Advantage (MA) 
organization shall ensure that each prescription drug plan or Medicare 
Advantage Prescription Drug (MA-PD) plan offered by the sponsor or 
organization does not restrict a pharmacy that dispenses a prescription 
drug or biological from informing, nor penalize such pharmacy for 
informing, an enrollee in such plan of any differential between the 
negotiated price of, or copayment or coinsurance for, the drug or 
biological to the enrollee under the plan and a lower price the 
individual would pay for the drug or biological if the enrollee 
obtained the drug without using any health insurance coverage.
  The U.S. Department of Health and Human Services (HHS) calculated 
that if generic substitution worked program-wide, then Part D could 
potentially save $5.9 billion a year.
  Using generic drugs instead of their brand-name equivalents could 
have saved the Medicare Part D program approximately $3 billion in 2016 
alone.
  In 2016, beneficiaries paid $1.1 billion in out-of-pocket costs of 
brand-name drugs, which was almost twice as much as out-of-pocket costs 
for generics.
  The high cost of prescriptions hits older Americans on fixed incomes 
particularly hard, especially for medications designed to treat serious 
or chronic conditions where the patient's cost-share can be expensive.
  This bill prohibits these outrageous contract arrangements between 
Medicare private plans, PBMs and pharmacies and help seniors save money 
when they pick up their prescriptions.
  Seniors should not have to choose between paying their bills and 
taking their medication.
  We should make it our mission to put medicine within reach of 
patients.
  I urge all of my colleagues to vote in favor of S. 2553.
  The SPEAKER pro tempore (Mr. Rutherford). The question is on the 
motion offered by the gentleman from Texas (Mr. Burgess) that the House 
suspend the rules and pass the bill, S. 2553.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

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