"Gag clauses" buried in the fine print of pharmacy contracts prevent many pharmacists from telling customers when the cash price for a medicine may be less expensive than their insurance copay — unless the customers directly ask.
Using your insurance plan isn’t always the cheapest way to buy prescription drugs. But your pharmacist might be banned from telling you that.
Lawmakers on both sides of the aisle are seeking ways to stop a practice that can keep customers from saving money at the drugstore counter. “Gag clauses” buried in the fine print of pharmacy contracts — and imposed by pharmacy benefit managers (PBMs) — prevent many pharmacists from telling customers when the cash price for a medicine may be less expensive than their insurance copay unless the customers directly ask.
Ending “gag clauses” is just one option as Republicans and Democrats attempt to find ways to lower the skyrocketing cost of prescription drugs — both a problem for the health-care system and a political headache for both parties. President Donald Trump singled out the clauses when he said he wanted to ban them in his May speech on drug prices, a goal also outlined in the administration’s blueprint to lower costs for pharmaceuticals. And congressional legislation has been drafted to tackle the problem.
Health and Human Services Secretary Alex Azar decried gag clauses as “unacceptable” in a hearing last week before the Senate Finance Committee. Last month, he vowed to work with Sen. Susan Collins, R-Maine — who is sponsoring one of the anti-gag clause bills along with bipartisan colleagues — to pass such measures.
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During a Senate Health, Education, Labor and Pensions Committee hearing June 12, Collins described standing behind a couple at the pharmacy who said they couldn’t afford a $111 copay for a medication. The pharmacist told Collins that happens “every single day.”
“That really troubles me. It was pharmacists who brought to my attention the fact that these gag clauses exist,” Collins said.
“We will look forward to working with you and other senators on legislation that would across the spectrum deal with the issue of these gag clauses and getting it to stop,” Azar responded. “Because we think patients have the right to know what their out-of-pockets are and what their lower-cost alternatives are.”
Sen. Susan Collins tweeted “Gag clauses are an egregious tool some companies use to conceal prescription drug prices from patients at the pharmacy, causing them to needlessly overpay. At a hearing yesterday, @SecAzar pledged to work with me on a bipartisan bill I introduced to prohibit this practice.”
Sen. Susan Collins tweeted “Americans have the right to know which payment method — insurance or cash — would provide the most savings when buying prescription drugs, but ‘pharmacy gag clauses’ prohibit pharmacists from sharing this information with consumers. (1/2)
“I introduced two bills with Senator @clairecmc & @SenStabenow to remove these barriers in order to lower the cost of prescription drugs and save consumers money.”
PBMs are the middleman acting as a negotiator between drug companies and insurance companies to determine what prescriptions are covered by a given health plan. And experts explained to us that it’s the PBM that determines what individuals from an insurance network pay for a drug, and which pocket any difference between costs to pharmacies and patients.
For their part, top PBMs insist they do not include “gag clauses” in their contracts — which tend to contain broad confidentiality rules rather than a single, specific prohibition on sharing the true cost of a drug at the pharmacy counter.
“We do not engage in this anti-consumer practice and are working constructively with state and federal policymakers to ban the practice,” Phil J. Blando, a spokesman for Express Scripts, told us in a statement. Blando said the company uses a “lesser-of” strategy so that members “always pay the lowest cost automatically, whether it’s the cash price or their copay.” He said Express Scripts believes “gag clauses” are “not in patients’ best interest.”
CVS Health also praised congressional efforts addressing gag clauses in a March statement on its website, and similarly said the company’s practice is to charge patients the lowest price.
“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,'” the statement says.
But the practice still seems to be occurring in many pharmacies. Anthony Reznik, director of government affairs for the Independent Pharmacy Alliance, said that when a patient picks up a prescription, the pharmacist electronically pulls up information that includes the cost under insurance predetermined by PBMs.
“[If] I see on my screen that if you pay the cash price it would actually be cheaper for you than if you were to pay with your insurance, I can’t tell you unless you ask me specifically about it,” he said.
The difference between the cash and insurance price for a drug varies widely, and Reznik said “there’s no rhyme or reason to it.” Pharmacists’ information might reveal the insurance copay for a patient is $50, even if the drug itself costs the pharmacy only $10. If the patient doesn’t ask about other options, the pharmacist cannot voluntarily inform a patient when an out-of-pocket price would cost them less.
Congress is trying to fix the problem.
Collins — along with Sens. Claire McCaskill, D-Mo., and Debbie Stabenow, D-Mich. — introduced two bills to tackle gag clauses. “The Patient Right to Know Drug Prices” would block insurers or PBMs from prohibiting pharmacies from informing customers of the difference between the insurance copay and the actual cost of a drug. “The Know the Lower Price Act” would do the same for people covered under Medicare Advantage and Medicare “Part D” plans.
Meanwhile, in the House, Rep. Earl L. “Buddy” Carter, R-Ga., has introduced the bipartisan “Prescription Transparency Act” that would also prohibit gag provisions. Neither Carter’s bill nor the Senate bills have come up for a committee vote.
“Being the only pharmacist currently serving in Congress and having years of experiences with this, I’ve witnessed firsthand some of the issues that we’re talking about in this bill,” Carter told us.
He specifically criticized the “shell game” being played by PBMs, which he said disclose little to no information about the drug-pricing process. And while ending the practice won’t directly lower the cost of drugs, Carter said it’s an important step toward increasing drug pricing transparency for consumers and demystifying the role of the PBM.
“This shows you they are hiding things,” he said. “They put a clause in a contract with a pharmacy telling them they have to be quiet about this? That shows you they don’t want transparency.”
“Now, I’m not opposed to anybody making money, but show me what the value is that the PBMs are bringing into the system. They bring no value whatsoever,” Carter continued. “They will tell you their mission is to keep prescription drug prices low. Well, how is that working out for you? Because if they were fulfilling their mission, why are we talking about high prescription drug prices? Why is it one of the president’s primary agenda items?”
The National Community Pharmacists Association said it supports national legislation to bar “gag clauses,” a term it says can be misleading because it refers to the broad contract language.
“You would rarely find an overt prohibition that ‘Though shalt not tell the patient the true negotiated price,'” spokesman Scott Brunner said. “Instead, there is broad and nebulous confidentially verbiage.”
Kala Shankle, NCPA’s director of policy and regulatory affairs, said legislation would be beneficial if it contains specific language allowing pharmacists to bypass such provisions.
“The relationship between independent pharmacists and PBMs at this point is so broken that it’s created an atmosphere … where we need something to point to, to tell the PBM to knock off their opaque practices,” Shankle said. “That’s what we want out of this legislation … “
A survey of 640 pharmacists by NCPA in 2016 found that 59 percent had encountered certain “gag” restrictions at least 10 times in a month.
Reznik panned what he called the “near monopoly” enjoyed by the three PBMs — Express Scripts, CVS Caremark, and OptumRx — that control almost 80 percent of the market, arguing it contributes to pharmacists’ fears about violating gag rules. “If you’re outed by just one network out of these three, you could lose your entire business, and those patients lose access to a pharmacy they may have frequented for decades.”