/>iRead our previous alert on PBM reform here.
Abusive practices by PBMs received sustained, bipartisan focus in Congress throughout the year, which resulted in the House’s passage of the Lower Costs, More Transparency Act (H.R. 5378) with a strong bipartisan vote. On the Senate side, three bills targeting PBM reform await Floor consideration. Meanwhile, the Biden Administration quietly continued its investigation of alleged anticompetitive behavior by the major PBMs. Since 2024 is an election year, the pre-November legislative calendar is abbreviated, and end-of-Congress lame duck session prospects are always difficult to assess months in advance. Nevertheless, we see a number of policymakers still ardently supporting PBM reform and committed to passing impactful bills to help patients at the pharmacy counter. Among those at the top of this list is Senate Finance Committee Chair Ron Wyden (D-OR), who, when asked about a number of possible priorities for his Committee this year responded,
“I’m focused on PBM reform.”
In this alert we’ll share inside-the-Beltway insights on the PBM reform dynamics for the coming year and briefly touch on prospects for PBM reform in the next Congress.
Political Considerations
Although always an important factor, politics affects legislative activity even more in a presidential election year, not just because two month-long recesses leave Congress with less time to move legislation, but also because partisan power dynamics gain urgency as the election nears, and those dynamics also usually shift to some degree after the election. That said, given the bipartisan interest in PBM reform, partisan political considerations related to the election may not significantly interfere with prioritizing legislation on this issue.
Policymaker Turnover
Elections often bring voluntary as well as the expected involuntary policymaker turnover. Members of Congress who have decided not to seek re-election may be pushing for passage of legacy legislation before they leave. In the past few months, there have already been a number of retirement announcements, including several critical PBM policymakers.
Senate Finance Subcommittee on Healthcare Chair Ben Cardin (D-MD) has decided this will be his last year in Congress. In addition, Senate Special Committee on Aging Ranking Member Mike Braun (R-IN) and fellow Aging Committee member Joe Manchin (D-WV), both of whom have cosponsored multiple PBM reform bills, have announced their intentions to leave at the end of 2024. In the House, the list of retirements is even more extensive and is headlined by current Energy and Commerce Committee Chair Cathy McMorris Rodgers. As of February 15, 43 House Members have announced either their retirement or their intention to seek a different elected office. Relevant to PBM reform, other planned House retirements include:
- Rep. Anna Eshoo (D-CA), Energy and Commerce Health Subcommittee Ranking Member
- Rep. Michael Burgess (R-TX), Energy and Commerce, GOP Doctors Caucus, Co-Chair
- Rep. Larry Buchson (R-IN), Energy and Commerce, GOP Doctors Caucus
- Rep. Kay Granger (R-TX), Chair, House Appropriations Committee
- Rep. Lisa Blunt Rochester (D-DE), Energy and Commerce
- Rep. Jim Banks (R-IN), House Education and Workforce, Republican Study Committee
- Rep. Brad Wenstrup (R-OH), House Ways & Means Health Subcommittee, GOP Doctors Caucus
In light of their leadership and investment of resources on the issue, we’ll be tracking efforts among these Members to enact PBM reform legislation before year-end. But despite these significant retirements, we note there is no indication that the impetus for PBM reform is losing steam. Broad agreement on the need for reform remains strong, as demonstrated by bipartisan markups in the Senate Finance and HELP Committees and in the House Energy and Commerce and Education and Workforce Committees. (We note that House Ways and Means has advanced a PBM package as well, but voted to do so along partisan lines.) We fully expect momentum to continue in the next Congress and don’t expect retirements or the election to dampen the motivated, bipartisan outlook — rather it will serve as an opportunity for new voices to join the chorus.
Of course, in addition to replacements for those departing voluntarily and those who unsuccessfully sought re-election, the election could bring in a new president who would set new priorities and would staff agencies with new leadership. Under the current Administration, the Federal Trade Commission (FTC) is engaged in a comprehensive study of the business practices of vertically-integrated PBMs and their impacts on the affordability of and access to medicine, and the US Department of Justice’s Antitrust Division also is keeping an eye on vertical integration in the prescription drug market. Turnover in the administration could certainly set back these efforts or reshape them.
Legislative Prospects
With much of the first quarter of the year consumed by the need to pass current year appropriations legislation, a number of interest groups have been seeking to add their issues to spending bills in an effort to assure their passage. For example, we’ve been hearing that advocates are pushing for inclusion of the Lower Costs, More Transparency Act, which the House passed in December 2023 under suspension of the rules.[1] The bill contains a number of measures that are unrelated to PBMs, but on the PBM front, its notable provisions would 1) establish a number of reporting requirements and 2) ban spread pricing in Medicaid. We’ve also been hearing theres a campaign to include all or at least parts of Senate Finance’s Modernizing and Ensuring PBM Accountability Act (MEPA, S. 2973) and Better Mental Health Care, Lower-Cost Drugs, and Extenders Act (BETTER, S. 3430). While these bills enjoy the benefit of broad, bipartisan support and cover Congress’s bicameral interest, budget negotiation disarray has led to unfavorable circumstances for PBM reform inclusion in a spending bill.
Even if PBM reform is not included in any appropriations legislation, after March 8 there are 16 legislative weeks before the election and five after. Advocates could see another bite at the apple if spending bills are punted short-term. Beyond finding a ride on a spending bill, there are approximately 50 other bills pending in the House that vary considerably in content, but in some way touch on PBM reform or drug pricing. Many of these bills seek to enhance transparency in PBM practices, but some include reforms that go beyond increased reporting requirements, such as the Delinking Revenue from Unfair Gouging (DRUG Act, H.R. 6283) and the Neighborhood Options for Patients Buying Medicines Act (NO PBMs Act, H.R. 5400). We have been expecting to see markups of some of these bills in the first half of the year in the House Oversight, Energy & Commerce, and Ways & Means Committees. The House Oversight Committee acted first, with a favorable vote on the DRUG Act on February 6. The bill has also been referred to the Education & Workforce, Energy & Commerce, and Ways & Means Committees, which have the opportunity to impact the substance of this bill. Sponsors of the DRUG Act highlight its provisions “delinking” PBM rebates from the list prices of drugs, which are not included in the Lower Costs, More Transparency Act, and therefore could feature in negotiations with the Senate, which also has marked up delinking legislation.
The Senate bills, led by Senate Finance’s MEPA and BETTER, and Senate Health, Education, Labor and Pension Committee’s (HELP’s) Pharmacy Benefit Manager Reform Act (S. 1339), all contain transparency requirements, as well as more substantive reforms. Similar to the DRUG Act, MEPA would “delink” PBM compensation from drug prices at the pharmacy counter, and BETTER includes provisions that could help independent pharmacies by protecting patients’ access to the pharmacies of their choice and prohibiting below-cost pharmacy reimbursements.
It is important to note that since the 118th Congress concludes at the end of 2024, any un-passed bills will die. Thus, PBM reform opponents, who have mounted a ferocious defensive effort on the Hill, will likely strategize to run out the clock on reform efforts in the current Congress and hope to re-set the table in 2025.
Conclusion
We agree with Senate Finance Committees Chair Wyden that Congress is making progress in addressing PBM abuses. PBMs themselves are anticipating legislative change, and some are already choosing to pivot away from opaque reimbursement models. PBMs’ track record of adjusting to incremental reforms begs the question: Will Congress be able to find consensus on sufficiently bold action to effectively address the “misaligned incentives” it has identified in the system?
[1] Passing a bill under “suspension of the rules” requires 2/3 of House Members to vote in favor, instead of the traditional simple majority, and prohibits members from amending the bill on the floor. Passage under “suspension of the rules” therefore indicates strong support for the legislation.
