Bills to end ‘gag clauses’ moving through Congress

Legislation nearly guaranteed to go to president’s desk, but timing is unclear

It was a proposal that was popular from the get-go: once unknown to most lawmakers and members of the public, so-called “gag clauses” in PBM contracts—which bar pharmacists from telling patients the true cost of their medications, even when the out-of-pocket cost is lower than their copay—quickly became an easy target in national efforts to lower patient drug prices. PBMs can penalize pharmacists who violate the gag clauses.

Accordingly, Sens. Debbie Stabenow (D-MI) and Susan Collins (R-ME) introduced the Know the Lowest Price Act (S. 2553), which prohibits gag clauses in Medicare Advantage and Part D plans unanimously passed out of the U.S. Senate on September 5.

The day after Senate passage, the U.S. House Energy and Commerce subcommittee on Health held a hearing on the issue. On September 7, it was approved by the subcommittee and now moves on to the full committee.

Another bill, the Patient Right to Know Drug Prices Act (S. 2554), introduced by Sens. Collins and Claire McCaskill (D-MO), would end gag clauses in employer-sponsored and health care exchange plans. Proposed amendments must be considered before it heads to the Senate floor.

Hugh Chancy, RPh, testified before the House Health subcommittee about a time when he received a scolding from a PBM after he advised an elected official that it would be cheaper from him to buy his medication without going through his new plan.

“Specifically, the mayor’s copayment for one medication went from roughly $7 to $26. When I noticed this difference, I informed the mayor that it would be cheaper if he paid for his prescription off his insurance,” Chancy said. The mayor then contacted the plan to find the reason for the discrepancy.

The plan’s PBM called Chancy to give him a verbal warning. “The PBM stated we were in violation of our contract for disparaging the plan when we discussed the cost of a drug off insurance. We were told that if our pharmacy were to do so again, there would be consequences, including exclusion from PBM networks.”

Legislative language addressing gag clauses is likely to be included in a package of bills that is expected to pass easily. Despite the great likelihood that it will pass, the timing is unclear.

APhA supports policies that allow pharmacists greater latitude to help their patients.