The New York Assembly is entertaining two bills that would, among other things, prevent pharmacy benefit managers from imposing gag clauses on pharmacists.
S07191A and A09893 would prevent PBMs from putting gag clauses in their contracts with pharmacists. The bills were introduced in January and February of 2018. Currently, both bills are in committee: S0719A has been referred to the Health Committee, and A09893 has been referred to Insurance. In part, the bills read:
"...no contract for pharmacy services entered into in the state between a health insurance carrier or a pharmacy benefit manager [...] and a pharmacy [...] shall contain a provision prohibiting or penalizing, including through increased utilization review, reduced payments or other financial disincentives, a pharmacist's disclosure to an individual purchasing prescription medication of information regarding (a) the cost of the prescription medication to the individual, or (b) the availability of any therapeutically equivalent alternative medications or alternative methods of purchasing the prescription medication, including, but not limited to, paying a cash price, that are less expensive than the cost of the prescription medication to the individual."
Pharmacy benefit managers can tell your pharmacist what to say - and it could cost you money.
Currently, some pharmacists are not able to tell patients when they could be paying less for their medications because PBMs put gag clauses in their contracts. PBMs sometimes set the copay price of a drug (what you pay if you used insurance) higher than the list price of the drug (the price you pay without using insurance). When insurance companies do this price setting, it is called a "clawback." Gag clauses order a pharmacist not to tell you about the clawback, so they cannot say if you could pay less for a drug if you did not use your insurance. This results in higher prices for the patient. This practice is especially detrimental for people with diabetes because they pay about 2.3 times more on healthcare than people without diabetes. Gag clauses are surprisingly widespread; some independent pharmacists estimate that if they were allowed, they could have saved their patients money in about 10% of transactions. DPAC has done a deep dive into gag clauses on our blog.