Know the Lowest Price Act of 2018

Mr. President, I rise today in support of legislation I have introduced with several of my colleagues--Senators Murkowski, Barrasso, Stabenow, and Cassidy--that would remove a barrier that prevents patients from getting the most affordable prescription drug prices at the pharmacy counter.

Mr. President, Americans have the right to know which payment method--whether it is using insurance or paying with cash out of pocket--would provide the most savings when they are purchasing prescription drugs. The two bills we have introduced would establish some clarity in this incredibly opaque drug pricing system.

Nearly 60 percent of Americans, including roughly 90 percent of seniors, take at least one prescription drug. In 2016, Americans spent more than $330 billion, including a staggering $45 billion out of pocket, on retail prescription drugs. The Federal Government picked up another $139 billion through Medicare, Medicaid, and other programs.

Prescription drugs amount to nearly 18 percent of all healthcare expenditures and are the second fastest growing expenditure within healthcare. Moreover, two-thirds of personal bankruptcies in our country have been attributed to the cost of medical care, including prescription drugs. To make informed decisions, at the very least, we should have the right to know how much our prescription drugs cost.

At a series of hearings held by the Senate HELP Committee, I have questioned repeatedly one particularly egregious practice that conceals prices from patients at the pharmacy counter. This practice is the result of what are known as ``pharmacy gag clauses.'' These are contract terms

that prohibit pharmacists from proactively telling consumers if their prescription would actually cost less if they paid for it themselves rather than using their insurance plan. In other words, if the consumer is using insurance, pharmacists can actually be prohibited from disclosing whether the consumer is paying the lowest possible price. In fact, the pharmacist is prohibited from sharing this vital information unless the consumer explicitly asks.

Most consumers would never guess that it would be cheaper for them to pay out of pocket than to use their insurance plan to purchase the medicine they need. Insurance is intended to save consumers money in this situation, but that is not always the case. Gag clauses in contracts that prohibit pharmacists from telling patients how to obtain best prices obscure what the true cost of the drug could be and the fact that it could be lower than what the patient is paying. Several recent investigations, including by the New York Times and NBC News, have highlighted this unacceptable practice. For example, a consumer paid a copay of $43 for a cholesterol drug; however, had that same consumer paid cash rather than using his insurance, the cost would have been only $19. Another investigation told the story of a consumer who used insurance to pay $129 for a drug when the cost would have been just $18 had he paid out of pocket.

From Maine to California, the stories are endless. And this practice is not an outlier issue. According to a survey by the National Community Pharmacists Association, more than 50 percent of community pharmacists reported that gag clause restrictions prevented them from telling patients about other less expensive options, such as paying in cash, at least 10 times in the past month.

Recently, I was at the pharmacy counter at a grocery store in Maine, and the couple in front of me decided not to take the prescription they needed because the copay of $111 was more than they could afford. I could not help but wonder: If they hadn't used their insurance, would they have been able to purchase that drug at a lower price? It is so counterintuitive that very few consumers are going to think to ask the pharmacist that question.

I first learned about these gag clauses from pharmacists in Maine who were frustrated that they were prohibited from providing their patients with information on the most cost-effective way for them to purchase the medication they had been prescribed. Pharmacists are barred from speaking up, and those who do face penalties for doing so. Pharmacists are on the frontlines in helping patients manage multiple medications, and they would also like to help ensure that their patients are getting the best, most affordable price.

The first bill we have introduced, the Patient Right to Know Drug Prices Act, which is S. 2554--which I have cosponsored with the four Senators I mentioned, Senators McCaskill, Barrasso, Stabenow, and Cassidy--would prohibit pharmacy gag clauses in healthcare plans that are sold on the exchange and in group plans as well. The second bill, the Know the Lowest Price Act, which is S. 2553--which I am a lead cosponsor on with Senator Stabenow--would ban these clauses in Medicare Part D and Medicare Advantage plans.

Specifically, both bills would prohibit health insurance plans and any pharmacy benefit managers with whom they contract from restricting the ability of a pharmacist to provide a plan enrollee with information about any price difference that may exist between the price of the drug under the insurance plan and the price of the drug purchased out of pocket. Our bills would also prohibit penalties from being imposed on any pharmacist who shares such vital and valuable information.

Some States have already taken action to combat this problem. For example, the State of Maine enacted a law last year that prohibits charging an insurance enrollee a copayment or other charge that is higher than the cost of the drug to the pharmacy provider. The Maine law also protects pharmacists who disclose information related to out- of-pocket costs from being penalized by insurance companies or PPMs under gag clauses. These are commonsense solutions.

In announcing his drug pricing plan last week, the President, I am pleased to say, stated his intent to ban any gag clauses that would apply to pharmacies. While the administration can take some steps administratively to curb this practice, the enactment of our two bills would ensure that this protection for pharmacists and for patients is required under law.

As consumers continue to face skyrocketing prescription drug prices, we ought to do all we can to ensure that Americans are getting the best prices possible. As Congress looks at innovative ways to bring down prices and to increase transparency throughout the healthcare system, our bills tackle an overlooked issue that directly affects consumers and pharmacies across our country.

Our legislation has already received strong endorsements from more than a dozen organizations, including Patients for Affordable Drugs, the American Pharmacists Association, the Pharmaceutical Care Management Association, and other groups, ranging from the Arthritis Foundation to the AIDS Institute.

I ask unanimous consent that these letters and statements be printed in the Record at the conclusion of my remarks.

It is only logical that pharmacists want to be able to provide their customers with information that will help them afford the medications they have been prescribed. It is absolutely unacceptable for pharmacists in this country to be banned, under gag clauses, from providing that invaluable information to patients, particularly those who may be struggling with the cost of prescription drugs.

I urge my colleagues to support banning pharmacy gag clauses and the passage of both S. 2554 and S. 2553.

I yield the floor.

Madam Speaker, I move to suspend the rules and pass the bill (S. 2553) to amend title XVIII of the Social Security Act to prohibit health plans and pharmacy benefit managers from restricting pharmacies from informing individuals regarding the prices for certain drugs and biologicals.

Madam Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and insert extraneous materials into the Record on the bill.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, I rise in support of S. 2553, the Know the Lowest Price Act of 2018. This bill would prohibit health plans and pharmacy benefit managers under Medicare or Medicare Advantage from restricting pharmacies from informing individuals about prices for certain drugs and biologics at the pharmacy counter, a practice commonly referred to as a gag clause.

These clauses prohibit pharmacists from informing patients that paying in cash will result in lower out-of-pocket costs than the insurer's cost-sharing arrangement unless the patient directly asks. This is a policy that the Energy and Commerce Committee has pursued in H.R. 6733, the Know the Cost Act of 2018. We held a legislative hearing and a markup in the Health Subcommittee before ultimately passing the bill out of the full committee.

Once again, I want to commend Representative Buddy Carter for championing this policy. His bill would have banned gag clauses in group and commercial health insurance plans, as well as for prescription drug plan sponsors for Medicare part D, or Medicare Advantage plans.

As an original cosponsor of H.R. 6733, I believe these bills banning gag clauses are essential in both lowering drug costs for individuals and freeing pharmacists to do what many consider to be the right thing.

I am surprised Congress has not acted sooner to ban health insurance plans from using gag clauses. I am glad to see these bills on the House floor today. This will allow pharmacists to

look out for their patients' pocketbooks and help them get their medications at the lowest possible price.

This bipartisan policy has been a shared priority for many Members on the Energy and Commerce Committee. Our Senate counterparts had a shared interest in this sound and reasonable policy, and recently advanced it out of their Chamber.

The issue of gag clauses was further brought up to the forefront by the Trump administration's drug pricing blueprint which was released this May. The President proposed eliminating gag clauses as a solution in his plan to address rising drug prices.

I, too, believe that allowing pharmacists to disclose the cost-saving potential of paying out-of-pocket to patients at the point of sale is an important piece of the drug pricing puzzle. While gag clauses are already prohibited in Medicare through regulation, it makes sense that we protect our seniors by putting this language in statute and sending S. 2553 to the President's desk.

This legislation should serve as an example of how the House and the Senate can work together to accomplish a goal to swiftly pass and send to the President for his signature.

There have been news stories across the country from the New York Times--two investigations in my market--and CBS 11 in the Dallas-Fort Worth area about how consumers can save money at the pharmacy counter by getting around gag clauses and directly asking their pharmacist: Is this cheaper for me to pay cash and not use my insurance?

Kelly Selby, a community pharmacist and pharmacy owner in north Texas, has told me about the problems that gag clauses cause at his own pharmacy. He says that a gag clause has a chilling effect as a pharmacy owner and a pharmacist, and that the pharmacy benefit managers will call you after you break a gag clause and threaten you with canceling their contract. Even if pharmacists have what is in the best interest to their customers at heart, Mr. Selby told me that, overnight, he could lose 40 percent of his business, taken away by the power of pharmacy benefit managers.

It is unfair for pharmacists across our country like Kelly to have to choose between hiding useful cost information from their patients and losing their other contacts.

Eliminating gag clauses is an integral part of driving down healthcare costs and prescription drug prices, an issue that hits home with each and every one of our constituents. It may not solve the entire drug pricing dilemma, but it is an essential piece. When this bill becomes law, it will make a real difference in the lives of patients across the country.

Mr. Speaker, I support S. 2553, and I urge fellow Members to support this legislation. Let's send it to the President's desk for his signature.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I am pleased to yield such time as he may consume to the gentleman from Georgia (Mr. Carter).

Mr. Speaker, I yield myself the remainder of my time.

Mr. Speaker, I urge Members to support this important legislation, and I yield back the balance of my time.

Mr. Speaker, I thank the gentleman for yielding.

Mr. Speaker, I continue to hear from neighbors in my part of Texas and beyond who are unable to afford their prescription drugs, lifesaving drugs. They are cutting back on necessities, cutting pills in half, or cutting into what little savings they may have.

After seeking administrative action to address this gag order problem with no success, I introduced with Senators Stabenow and Collins here in the House, along with 32 colleagues, a House bill to do what their measures do today.

Despite repeated requests, the House Ways and Means Committee, which enjoys jurisdiction over this matter as a Medicare bill, along with the Commerce Committee, declined to consider them.

This particular bill that we are considering now will allow those Medicare beneficiaries, seniors and individuals with disabilities, to turn to a professional pharmacist to learn if there is information available that, on a particular drug, they might be able to get a less expensive alternative by paying cash.

While pleased that this modest Know the Lowest Price bill will become law, we have had too much aiming low and shooting low in this Congress that has really been indifferent to the overall plight of seniors burdened with exorbitant prescription drug costs.

What a low bar that has been set. Patients want real change on this matter. Yet, we do the least possible to address this problem. We take baby steps when bold steps are required. To borrow from Mark Twain, I believe seniors can recognize the difference between lightning and a lightning bug, like we are getting today.

While this may enable some to learn the lowest available price, I believe what we need to find out about is the highest price that is being extorted in too many cases. The sky seems to be the limit. Whatever can be obtained from someone who is sick or dying seems to be the price point.

We may be able to cure some cancers and diseases--we want to encourage a price that will encourage continued innovation--but it need not come at the levels that are being charged too many people today only because this Congress is unwilling to curb the government monopoly that it has granted.

Pharmaceutical pricing is a tangled knot. There is no one panacea. Every step forward is a good step forward.

I formed a House Prescription Drug Task Force three years ago to begin to look at administrative and legislative steps in how we encourage innovation without being exploited by monopoly prices.

I think there is much more we can do, much more for someone like Bob from San Antonio, who has suffered from crippling arthritis for decades. He has seen the prescription that he relies on skyrocket from about $200 a year to $22,000 in co-payments annually. He finally had to switch to a less expensive drug and lives with the fear that it will not adequately cover his pain, even though it has become too painful to afford it.

Patients like Bob need much more than modest bills. We need a Congress that does not repeatedly cave in to the Big Pharma lobbyists. What is happening this week, this very week, is yet another reminder of the choice that has been made between a special interest and the needs of seniors.

With the active assistance of the Majority Leader, Big Pharma tried to exploit bipartisan opioid legislation and further burden patients with a provision undoing what had been a bipartisan agreement that helped plug the so-called donut hole and lowered patients' out-of- pocket drug spending in Medicare.

Pharma's plan would save them $4 billion, but the costs would have been shifted either to our seniors and individuals with disabilities directly or through the premiums that they pay.

Unable to defend this heist on its merits of flawed and misleading advertisements, and a hoard of lobbyists who have been here to try to get that $4 billion, I hope that we have it stopped. Hopefully, in fact--speak of hope--in a new Congress, we can see some action on what really might make a difference, and that is the ability of Medicare to negotiate for our seniors to get lower prices in much the same way the Veterans Administration does for our veterans.

I have introduced, along with almost 90 sponsors, the Medicare Negotiation and Competitive Licensing Act to harness the purchasing power of the government through the Health and Human Services Secretary. If negotiations fail, the Secretary would use good old American competition to lower them, bringing in generics, bidding, and competition, a real American way to solve what is a serious American problem.

Patients should not have to fight their insurer or a drug company when they need to be fighting their disease. Patients need this Congress to reclaim its voice and to not be gagged any longer. It can no longer let Big Pharma and its agenda define the debate. Instead, we need to end Big Pharma's exploitation of patients in order to get windfall profits.

Mr. Speaker, I thank the gentleman for yielding.

Mr. Speaker, I want to mark this as an important day for this Congress taking real steps to lower the cost of drugs for Americans.

I am proud to have been the lead sponsor for H.R. 6733, the Know the Cost Act of 2018, a bill that includes the core elements of this bill and expands patient protections.

Currently, pharmacists are prevented from telling their patients about a lower cost out-of-pocket option rather than utilizing insurance coverage. These gag clause provisions are included in provider manuals and contracts that require broad confidentiality agreements for pharmacists.

Often, these contracts offered by the pharmacy benefit manager, the PBM, are a take-it-or-leave-it situation where the pharmacist doesn't have any other options. If they opt not to take the contract, they are often left out of servicing large segments of the patient market.

Gag clauses can come in many forms, such as confidentiality agreements between pharmacists and plan sponsors, nondisparagement clauses, and even prohibitions on contacting sponsors, the media, and elected officials. As a result, pharmacists cannot have a transparent relationship with their patients or provide them necessary information that could help guide their best treatment options.

Senator Stabenow's bill, the Know the Lowest Price Act of 2018, bans these types of gag clauses in Medicare Advantage drug plans. Although this bill does not contain requirements for beneficiary notification that my bill, the Know the Cost Act of 2018, included, it is still an important step forward.

Banning gag clauses has received national support from State legislatures, both Chambers of Congress, HHS, and the President.

As the only pharmacist currently serving in Congress, I know all too well about the constraints placed on pharmacists as part of the take- it-or-leave-it contracts, where the pharmacist has no other option if they want to continue providing care for their patients in their community.

Mr. Speaker, I thank all of my colleagues on both sides of the aisle for their help in bringing this legislation forward. I particularly thank Chairman Burgess. Also, a shout-out to our staff, who has done an outstanding job of bringing this all together.

Mr. Speaker, I ask all my colleagues to vote in favor of this bill.

Mr. Speaker, I rise in support of S. 2553, the ``Know the Lowest Price Act of 2018.''

S. 2553 amends title XVIII of the Social Security Act to prohibit health plans and pharmacy benefit managers from restricting pharmacies from informing individuals regarding the prices for certain drugs and biologicals.

A Prescription Drug Plan (PDP) sponsor and a Medicare Advantage (MA) organization shall ensure that each prescription drug plan or Medicare Advantage Prescription Drug (MA-PD) plan offered by the sponsor or organization does not restrict a pharmacy that dispenses a prescription drug or biological from informing, nor penalize such pharmacy for informing, an enrollee in such plan of any differential between the negotiated price of, or copayment or coinsurance for, the drug or biological to the enrollee under the plan and a lower price the individual would pay for the drug or biological if the enrollee obtained the drug without using any health insurance coverage.

The U.S. Department of Health and Human Services (HHS) calculated that if generic substitution worked program-wide, then Part D could potentially save $5.9 billion a year.

Using generic drugs instead of their brand-name equivalents could have saved the Medicare Part D program approximately $3 billion in 2016 alone.

In 2016, beneficiaries paid $1.1 billion in out-of-pocket costs of brand-name drugs, which was almost twice as much as out-of-pocket costs for generics.

The high cost of prescriptions hits older Americans on fixed incomes particularly hard, especially for medications designed to treat serious or chronic conditions where the patient's cost-share can be expensive.

This bill prohibits these outrageous contract arrangements between Medicare private plans, PBMs and pharmacies and help seniors save money when they pick up their prescriptions.

Seniors should not have to choose between paying their bills and taking their medication.

We should make it our mission to put medicine within reach of patients.

I urge all of my colleagues to vote in favor of S. 2553.