NCPA CEO Doug Hoey Participates in Roundtable
with HHS Sec. Becerra

At a roundtable discussion with HHS Secretary Xavier Becerra last week, NCPA CEO Douglas Hoey took the opportunity to discuss the industry’s expanding role in health care and covered four major priorities for independent pharmacists:

• Eliminating pharmacy DIR fees, which are imposed on pharmacies by PBMs and have increased by 91,500 percent in recent years, according to CMS.
• Making permanent the emergency COVID-19 authorities allowing pharmacists in every state to administer COVID tests and vaccinations under Medicare and Medicaid.
• Maximizing Medicare Part D reporting requirements on pharmacy performance standards.
• Developing Medicare Part D regulations or plan guidance for medical-at-home pharmacy services, so long-term care pharmacies can deliver the same type of in-home services that they currently offer to nursing home patients.

Hoey praised Becerra for reaching out to health care providers and said, “We look forward to working with Sec. Becerra and the administration to strengthen community pharmacy.” Click here for NCPA’s news release on the meeting.

DOJ Asks Court to Remand Washington State
Plan Amendment Case Back to CMS

In a positive move for community pharmacy, today, the Department of Justice, which represents CMS in a lawsuit filed against the agency by NCPA, WSPA and NACDS, filed a motion asking a federal judge for the Western District of Washington to remand the matter back to CMS because it “agrees with Plaintiffs that the final decision approving the Washington State Plan Amendment” was unsupported by the administrative record before CMS and would not survive the legal challenge. The lawsuit seeks to overturn CMS’ approval of Washington State’s plan amendment which was granted in the waning hours of the Trump Administration after an administrative court upheld CMS’ initial rejection of it. Read the joint press release from NCPA, WSPA and NACDS on today’s development here.

NCPA Urges FTC to Examine PBM Practices

In the first of the FTC’s monthly open meetings, NCPA General Counsel Matthew Seiler spoke to the commission July 1 about PBMs and their anticompetitive practices harming patients and neighborhood pharmacies. Each speaker was allowed one minute to make remarks. Seiler said, in part: “The PBMs are systematically driving small local pharmacies out of business through anticompetitive practices such as below-cost reimbursements and patient steering to PBM-preferred networks. This has led to pharmacy deserts in urban and rural areas for our most vulnerable populations. NCPA urges this body to review the effects of consolidation and vertical integration for anticompetitive conduct by PBMs and the resulting impact on independent pharmacies and patients that has largely evaded scrutiny for years.” NCPA member Ben Jolley also spoke at the meeting.

NCPA Files Amicus Brief in North Dakota PBM Case

NCPA joined the American Pharmacists Association (APhA), Arkansas Pharmacists Association; Iowa Pharmacy Association; Minnesota Pharmacists Association; Missouri Pharmacy Association; Nebraska Pharmacists Association; North Dakota Pharmacists Association; and South Dakota Pharmacists Association to file a friend of the court (amicus curiae) brief in the 8th Circuit of the U.S. Court of Appeals defending North Dakota’s right to regulate PBMs. The seven state pharmacy associations are under the jurisdiction of the eighth circuit, The case, PCMA v. Wehbi, is the first at the federal appellate level to consider the scope of the U.S. Supreme Court’s unanimous decision last year in Rutledge v. PCMA upholding an Arkansas state law regulating the abusive practices of PBMs. Read more about the case here.

Biden Administration Issues Executive Order
on Promoting Competition in the American Economy

Today, President Biden signed an Executive Order with the intent of increasing competition to lower costs for consumers and increase wages for workers. As part of the 72 initiatives in the order, the president is ordering merger enforcers, such as the Federal Trade Commission and U.S. Department of Justice, to challenge current deals that not only are likely to raise prices for consumers but that may also harm health care markets. Previous mergers permitted by earlier Administrations may also be reviewed. The order also attempts to tackle rising prescription drug costs by directing the FDA to work with States and tribes on drug importation from Canada and HHS to increase support for generic and biosimilar drugs. The fact sheet on the Executive Order can be viewed here. NCPA will continue to communicate with the FTC and other executive agencies on the impacts of consolidation in the healthcare sector on community pharmacy.

HHS Withdraws Trump-Era Prescription Importation Rule

This week, HHS moved to withdraw the Trump Administration’s Requests for Proposals for Insulin Reimportation and Personal Prescription Drug Importation, which called for the submission of proposals on ways individuals could purchase and import prescription drugs from other countries and companies could “reimport” insulin at a reduced price. The agency is unaware of any actual submissions to the request and will consider alternatives to reduce the costs of patients moving forward. However, this is different from another rule which allows commercial importation of certain prescription drugs from Canada by States. NCPA provided minimum requirements to support the importation of prescription drugs. NCPA will continue to work with the Administration to ensure the affordability of prescription drugs for patients and encourage the Administration to address the true issues, like rising DIR fees, as a way of decreasing costs.

Advocates Continue to Support Pharmacy DIR Reform

In the last month, over 1,650 community pharmacy advocates have sent over 4,650 letters to members of Congress in support of S. 1909/H.R. 3554, the Pharmacy DIR Reform to Reduce Senior Drug Costs Act. On June 17, NCPA and several other groups delivered a letter of support to Congress with 249 signatories, including organizations representing national and state pharmacy groups, consumer groups, thousands of grocery stores with pharmacies, and even the National Federation of Independent Business, which is the country’s leading small business advocate. If you have done not done so, click here to voice your support for pharmacy DIR reform to your legislators. Click here for NCPA’s news release on this grassroots campaign.

FTC Adopts Resolutions Making it Easier
to Pursue PBMs for Antitrust Violations

On July 1, the FTC passed several resolutions that make it easier for the commission to initiate investigations and enforcement, which may include PBMs. One resolution allows for the use of civil investigative demands and subpoenas without requiring the full vote of the commissioners. ow, it will only require the signature of the Chair. 
The commission also rescinded a 2015 policy that will allow the commission to use a framework similar to the “rule of reason” which is what the commission and courts followed up to the early 1980s. The rescinded policy is probably the most controversial because it is unclear how the commission intends to use a framework that courts (and the common law they have created) currently do not support.

Senator Tuberville Pens Op-Ed Directed at PBMs

In an op-ed to the Washington Times, Senator Tommy Tuberville (R-Ala.) called for legislation to “cut out the middleman and get prescription drug prices down.” He points out the fact that PBMs are steering patients to PBM affiliated pharmacies while paying those pharmacies at higher rate than nonaffiliate pharmacies thus increasing drug costs. Additionally, he cites patient access concerns from PBM underpayments to community pharmacies that are forcing pharmacies out of business. NCPA is grateful to Sen. Tuberville for supporting community pharmacy and S. 1388, the Prescription Pricing for the People Act, which would require the Federal Trade Commission (FTC) to study anticompetitive practices by PBMs.

CMS Announces New Medicaid Director

Last week, Daniel Tsai was named the new deputy administrator and director of the Center for Medicaid and CHIP Services. Tsai will lead the center’s efforts to address disparities in health equity and serve the needs of children, pregnant women, parents, seniors, and individuals with disabilities who rely on Medicaid programs. Read the CMS press release about Tsai here.

NCPA Urges West Virginia to Avoid
PBM Reimbursement Games

In a letter to the West Virginia Offices of the Insurance Commissioner, NCPA expressed concern that PBMs will offset reasonable, transparent reimbursements by increasing bogus transaction fees. The state recently passed HB 2263, a PBM reform bill, which requires PBMs to reimburse pharmacies in an amount not lower than the National Average Drug Acquisition Cost plus a professional dispensing fee of $10.49. NCPA urged the agency to ensure that NADAC + $10.49 equals the total net reimbursement.

HRSA Updates Provider Relief Fund Requirements

This week, HRSA provided clarification on requirements related to the Provider Relief Fund (PRF). HRSA opened the Reporting Portal on July 1, 2021 for healthcare providers who received funds. Providers who received PRF funds during April 10, 2020 to June 30, 2020 will have until Thursday, September 30 to submit their information as part of the post-payment reporting process. If a provider received funds afterwards the expenditure and reporting requirements will be different. Additionally, those who have received less than $10,000 in the aggregate are exempted from reporting. Any unused funds must be returned within 30 days after the reporting period closes. Those who do not properly report will be subject to recoupment. Additional resources, such as user guides, a data entry worksheet, and updated FAQs can be found on the PRF reporting website. NCPA will continue to provide updates on the deadlines facing PRF recipients.

McKinley and Spanberger Introduce 340B Reimbursement Bill

This week, Representatives McKinley (R-W.Va.) and Spanberger (D-Va.) introduced the Preserving Rules Ordered for The Entities Covered Through (PROTECT) 340B Act of 2021. It would limit the ability of PBMs to have discriminatory reimbursement levels or deny access to networks for 340B contract pharmacies. If a PBM provides a discriminatory reimbursement for 340B drugs, it would be subject to a civil penalty up to $5,000 per day. NCPA will continue to discuss the impacts of legislation affecting 340B contract pharmacies with Congress.

Join Us in Charlotte, N.C. for the NCPA
2021 Annual Convention

If you have not yet done so, register for the in-person NCPA 2021 Annual Convention in Charlotte, N.C. from Oct. 9-12. Don’t miss the chance to reconnect with your colleagues for four days of best-in-class business education, networking opportunities, and a little fun in Charlotte. We look forward to seeing you there.

NCPA Submits Comments to OMB
on Equity, Underserved Communities

This week, NCPA submitted comments to a request for information from the Office of Management and Budget (OMB) regarding E.O. 13985 which requires OMB to work with the heads of executive agencies to develop policies to equitably serve all eligible individuals and communities. The comments focused on the ability of community pharmacies to deliver care in underserved areas, as evidenced by the administration of COVID-19 vaccines, as well as highlighting the existence of pharmacy deserts. NCPA also encouraged OMB to implement policies which ensure the pharmacy infrastructure continues to exist and be utilized by patients in those underserved locations.

NCPA Joins Other Stakeholders in Letter to HHS
on LTC COVID-19 Issues

Last week, NCPA, along with other stakeholders, sent a letter to HHS Secretary Becerra, CMS Administrator Brooks-LaSure , and Acting FDA Commissioner Woodcock on issues facing continued administration of COVID-19 vaccines by pharmacies in long term care (LTC) facilities. The letter highlighted the unique issues LTC pharmacies face and focused on minimum order size, dosage requirements per vial, and the reimbursement structure and requested the agencies implement policies to maintain patient access for these vulnerable populations. NCPA will continue to work with the agencies to ensure patient access is maintained and LTC pharmacies can continue their work in administering COVID-19 vaccines.

Arkansas DOI: PBMs Now Subject to Fines
under Deceptive Trade Practices Act for MAC Appeals Law

The Arkansas Department of Insurance issued a bulletin this week putting PBMs on notice that denial of MAC appeals-when the reimbursement to a pharmacy is below acquisition costs will subject PBMs to fines under the Arkansas Deceptive Trade Practices Act.

Delaware Auditor Urges PBM Regulations, Cites NCPA Analysis

Delaware State Auditor Kathy McGuiness urged the state to pass legislation to regulate PBMs after her office released a report titled ‘Lack of Transparency & Accountability in Drug Pricing Could be Costing Taxpayers Millions’ that listed the ways poor contracting with Express Scripts Inc. (ESI) cost Delawareans over three times the average drug inflationary rate. The report found that the State Benefits Office (SBO) cost taxpayers millions after paying ESI $24.5 million more than they should have paid for state employees’ prescription drugs. Auditor McGuiness states, “PBMs would like everyone to believe that legislative limits on their predatory practices would result in higher healthcare costs, but the National Community Pharmacists Association (NCPA) released a report, ‘Controlling PBM Conflicts of Interest Does Not Raise Healthcare Costs,’ that compares premium increases between 2015 and 2019 and notes that: ‘The premium increase in states with licensing authority over PBMs during that period was .3% below the national average, while states without licensing authority saw their premiums increase .4% above the national average.’

NCPA Members Testify in Favor of Michigan PBM Legislation

Michigan HB 4348 was recently considered in a series of hearings before Senate Health Policy and Human Services committee. The bill would require PBM licensure, establish reimbursement transparency protections, eliminate spread pricing, and implement other comprehensive PBM regulations. NCPA has strongly supported this legislation and submitted multiple letters of support. Additionally, NCPA members John Gross, pharmacy owner and Executive Director of The Michigan Independent Pharmacy Association and Jonathan Grice of HomeTown Pharmacy provided testimony. Gross explained the need for PBM oversight in Michigan to loosen the “death grip” that keeps pharmacists from providing their patients with the level of service they deserve. Watch his remarks at approx. 1:13:00. Grice stressed the need for PBM oversight and that pharmacy reimbursement transparency (e.g., a NADAC benchmark) led to savings in other states. Watch his remarks at the 5:40 mark:

NCPA State Legislative Activity Update

NCPA tracks state legislation related to our top three state priorities: Medicaid reform, scope of practice and compensation for services, and PBM reform and regulation. Click each issue for a report of bills that have been introduced so far this session specifically dealing with these three issue areas. You can access the individual bill language and basic information on the bill by clicking on the bill numbers in the attached report. Bills that have moved this week are listed at the top in the “Recently Updated” section.

NCPA’s Advocacy Center Update provides a weekly detailed summary of recent and breaking legislative, regulatory, and state developments impacting independent community pharmacy and NCPA’s efforts to affect policies benefitting its membership and the industry. The weekly update is distributed to NCPA leadership, steering committees, allied organizations/stakeholders and major contributors to the NCPA LDF and PAC. The weekly update is intended exclusively for the recipient and is not for external distribution.