Lauren's Legislative Update: June 2022

Jun 20, 2022

In our battle against PBM dirty practices, it’s important to remember our friends across the country who were able to accomplish the goal of passing independent pharmacy-friendly PBM regulation at the state level this year.

As pharmacy owners, it’s easy to focus on the losses we see in our stores, whether it’s a long-time customer who is now in a plan we can’t take, or seeing a dreaded negative reimbursement (or DIR fee report.) That makes the victories that much sweeter, so don’t miss a chance to uplift our friends. All of these victories are in part because all of YOU continue to get loud, and demand action for your patients and your pharmacies.

We all know it’s going to take every one of our regulatory agencies to try to beat the PBM Whack-a-mole game. Legislators support bills for a variety of different reasons, so determine which bills will be most beneficial for you and your patients and educate your legislators on why they should support them.

This year, there were multiple states that have also passed various forms of 340B legislation. With the recent Supreme Court ruling on HHS’ decision to reduce Medicare payments to Hospitals who are part of the 340B program as unlawful, we plan to discuss 340B legislation in an upcoming legislative round up.

Here are some of the states I think had great wins. Ideally, one of these bills could be passed in your state:

Oklahoma - If you haven’t heard the cheers from OK about the passage of SB 737, it’s time to listen up. This legislation allows the state Insurance Commissioner greater enforcement over PBMs, prohibits pharmacy network participation fees, and prohibits spread pricing. Many state Boards of Pharmacy have chain members that might not be so agreeable to enforcing PBM regulations that would impact their parent companies, so getting the state Insurance Commissioner the ability to increase enforcement on PBMs is a step in the right direction. This also came on the heels of the recent PCMA v. Mulready decision that ERISA law does not preclude the state from enforcing the Oklahoma Patient’s Right to Pharmacy Choice Act. Keep it up OK Pharmacists!

Tennessee - Two bills in 1 session are definitely worth celebrating. HB 2660 allows for the Department of Commerce & Insurance to regulate PBMs, and HB 2661 covers additional PBM reform. Like OK, making sure the state agency responsible for oversight has been educated by our partners is vital to the success of any legislation.

Colorado - Bill H 1122 prohibits PBMs from reimbursing pharmacies for a prescription drug an amount less than the National Average Drug Acquisition Cost for the prescription drug. NADAC has been used by multiple states to ensure pharmacies receive a base level cost for dispensing.

New Jersey - The Garden State is still discussing A 536. This would help set new transparency standards for PBM practices & licensing requirements, gag clauses, and other plan design issues. Stay tuned, but New Jersey was able to perform a successful Reverse Auction for their Medicaid Program, so the East Coast is not sleeping on PBM reform!

Honorable Mentions:

Some of our friends weren’t quite as lucky at getting a bill passed this session, but their advocacy did not go unnoticed in the PUTT universe. The only groups we hope are losers in any legislative efforts are the PCMA/PBM or America’s Health Insurance Plan (AHIP) allies. Want some ideas on how to stay up to date?

Iowa - If you are on social media and not following at least 1 independent Iowa Pharmacist, put that on your to-do list ASAP. @BrettBarker is a great one to follow. Their advocacy for SF 2231 was incredible, and they are not giving up on moving forward.

New York - Our pharmacy friends in NY keep trying to get Gov Hochul to see the error of her predecessor’s ways of leaving Independent Pharmacies out of the budget, but I think we all know whose side we are on in this fight. @SteveMooreRx & @pbmslayer are my sources for staying up-to-date on NY pharmacy activities. NY pharmacists consistently bring their legislators into their stores for education and updates on what needs to be fixed to help their patients.

Maryland - Earlier this year, Maryland Insurance Administration released a report that state PBM laws would not be preempted by federal ERISA law, just like the Rutledge & Webhi decisions against PCMA stated. There has been continued debate over PSAO regulation in Maryland, and Maryland Pharmacists continue to educate legislators on PSAOs role in the “contract negotiations” that PBMs claim we participate in. Stay up to date with Independent Pharmacies of Maryland (IPMD) at IPMDunited.org. If you’re having a particularly rough day against the PBM Goliaths, go watch Delegate Kipke take on PCMA in Maryland legislative hearings and cheer along to his no nonsense breakdowns of their talking points.

The bottom line for this season’s legislative round-up: whether states found success in getting enhanced PBM regulation enforcements secured under a state agency, passed a NADAC bill, or were able to fight another day for their patients by living vicariously through the wins of others (and the recent news that the FTC is not messing around against PBMs in studies, rebate investigations, etc).

Remember we are proud of you and your efforts – KEEP GETTING LOUD!