By
Nathaniel
Weixel - 11/21/19 06:00 AM EST 14
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Greg Nash
President Trump and
senators from both parties are not giving up the fight over forcing drug
companies to disclose list prices in TV ads.
Both the White House
and Congress are searching for an easy political win on drug prices, but so far
have found little success.
The disclosure rule was
one of Trump’s highest-profile initiatives and the first policy released after
the administration unveiled its drug pricing “blueprint” in 2018.
Under the rule, drug
manufacturers would have been required to state the list price of a 30-day
supply of any drug that is covered through Medicare and Medicaid and costs at
least $35 a month.
Experts and advocates
don’t believe the rule would have been very effective at lowering drug prices.
Even so, it represented one of the boldest actions the administration took in
its quest to lower the cost of prescription drugs.
“The disclosure of drug
list prices in direct-to-consumer television ads is an appropriate step to
increase price transparency for patients. We have not, however, seen any evidence
that it will lower drug prices,” said Ben Wakana, executive director of the
advocacy group Patients for Affordable Drugs.
Pharmaceutical
companies opposed the rule from the start. They argued the policy would confuse
consumers because a drug’s list price — which doesn’t reflect the discounts
negotiated with insurers or through patient assistance programs — is often
higher than what the patient actually pays.
The administration was
dealt a blow in July when a federal judge sided with a coalition of three drug
companies and advertisers and blocked the Trump administration from
implementing the policy, just hours before it was set to take effect.
U.S. District Judge
Amit P. Mehta in Washington, D.C., an Obama appointee, ruled the Department of
Health and Human Services (HHS) did not have the authority to compel drug
companies to disclose prices.
The administration is
appealing, and a hearing on the appeal is scheduled for mid-January. But some
senators don’t want to wait and have been pushing for a quick floor vote.
Sen. Dick Durbin (D-Ill.) has
been pushing to win unanimous consent to pass legislation he co-sponsored with
Senate Finance Committee Chairman Chuck Grassley (R-Iowa)
that would implement the rule.
“I believe that the
American people should know what the drugs cost,” Durbin said in a speech on
the Senate floor last week.
But Sen. Pat Toomey (R-Pa.)
objected to that measure, saying that the legislation would provide seniors
with misleading information. He said seniors might be scared off from even
discussing an important drug with a doctor because of the high list price shown
on the ad.
Toomey also echoed
other critics of the idea who argue its only purpose is to shame drug
companies. Toomey said the bill would “vilify” the pharmaceutical industry,
even as they work to manufacture lifesaving drugs.
But Durbin said drug
companies are the ones who decide what the list price is, so they should be
required to disclose it.
“Let’s not stand in
defense of pharmaceutical companies,” Durbin shot back at Toomey. “They’ve got
plenty of people to defend them.”
In announcing the final
rule earlier this year, HHS Secretary Alex Azar addressed criticism that the
rule is only intended to shame drugmakers, arguing that there’s no reason
patients should be kept in the dark about the full prices of the products
they’re being sold.
“Patients have a right
to know, and if you’re ashamed of your drug prices, change your drug prices.
It’s that simple,” Azar said.
Supporters of the
measure, like Wakana, say some people do have to pay the list price, such as
the uninsured or people with high-deductible plans, but they are the ones most
affected by high drug costs.
“List price is
relevant. And patients can use that information as a starting point for
discussions with their physician, pharmacist or their health plan to understand
better what their payment will be,” Wakana said.
Toomey urged Durbin to
introduce the bill as an amendment to a spending bill, so it could have a
proper floor debate. It’s unclear whether Durbin and Grassley will do so.
Ian Spatz, a senior
adviser at Manatt Health who represents industry clients, said it’s easy to see
why some lawmakers would want to act.
“This is one of the
low-hanging pieces of political fruit of the drug pricing debate. There’s
public support, and Trump supports it, so it makes sense that [Durbin]
continues to press for a victory,” Spatz said.
Spatz added that even
if Congress does pass price disclosure as a law, the drug companies may still
challenge it on First Amendment grounds. He said there are other bills that
Congress is moving forward with that will have a more significant impact on
prices.
Trump has made lowering
drug prices a top priority of his presidency, and the court decision leaves him
with few drug pricing accomplishments to point to heading into the 2020
presidential election.
Lawmakers are similarly
trying to pass meaningful legislation. House leaders intend to vote on Speaker Nancy Pelosi (D-Calif.)
signature drug pricing bill, which would allow Medicare to negotiate drug
prices, when Congress returns from the Thanksgiving recess.
That bill is expected
to pass the House on a party-line basis before dying in the GOP-controlled
Senate. Despite months of talks between Pelosi and the White House, Trump does
not support the bill, and Senate Majority Leader Mitch McConnell (R-Ky) has
denounced the bill as “socialist.”
McConnell has also
declined to support a more modest, bipartisan bill from Grassley and Senate
Finance Committee ranking member Ron Wyden
(D-Ore.). The legislation cleared the Finance Committee over the summer largely
with the support of Democrats, and Grassley is trying to build support among
his Republican colleagues for the measure.
He has argued if
Congress and the president are serious about tackling drug costs, his
legislation is much more preferable to Pelosi’s. But many Republican senators
object to a provision in that bill that would force drug companies to pay the
money back to Medicare if their prices rose faster than inflation.
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