When happened on Friday is that the appropriations bill got split 6 ways in the Senate and 5 of the 6 passed. Here’s the minority take:
That includes links to the bits that were passed. The relevant sixth is the one titled “LABOR, HEALTH AND HUMAN SERVICES, EDUCATION, AND RELATED AGENCIES”, The summary does not include any use of any of the words/acronyms, “Medicare”, “CMS”, “PBM” or “pharmacy”, but it is the minority report. Actual text of HR7148 as passed by the Senate (i.e. with the modifications) is now in the expected place:
https://www.congress.gov/bill/119th-congress/house-bill/7148/
The complexity here is that the bill from the House was this one:
However the Senate modification is expressed as a series of edits to the above:
I took the first link and manually checked the edits in the second to make sure nothing unexpected was changed. The initial edits are wrong but obviously so. The final substantive edit does just eliminate “Division H”.
The stuff in there that has bearing on health care and similar considerations is, in fact, massive. It is Division J, “HEALTHCARE EXTENDERS” and starts on p1252 of the original (pre-edit) document. Fortunately it has its own table of contents (start on 1252). Title II (Medicare) starting with section 6201 contains the relevant changes. Note that this is about Medicare and the PBM changes are a by product of that; it’s not about regulating PBMs themselves.
These sections are worth reading (well, it’s all worth reading but these sections seem particularly relevant):
Sec. 6221. Medicare coverage of multi-cancer early detection screening tests.
Sec. 6222. Medicare coverage of external infusion pumps and non-self-administrable
home infusion drugs.
Sec. 6223. Assuring pharmacy access and choice for medicare beneficiaries.
Sec. 6224. Modernizing and ensuring PBM accountability.
Sec. 6225. Requiring a separate identification number and an attestation for
each off-campus outpatient department of a provider.
Sec. 6226. Revising phase-in of medicare clinical laboratory test payment
changes.
So far as I can see Section 6222 covers disposable pumps but maybe not Omnipods or insulin pumps in general.
That is, I believe, because it’s an appropriations bill:
(1) [A]ppropriations bills may not include legislative provisions (e.g., authorizing language)
From this summary of how to modify an appropriations bill as provided to Representatives:
https://www.congress.gov/crs-product/R47314#:~:text=House%20Practice%20describes%20the%20rules,of%20amendments%20to%20appropriations%20bills.&text=When%20an%20amendment%20is%20submitted,Member%20can%20actually%20offer%20it.&text=in%20compliance%20with%20the%20rules,%2C%20including%20budget-related%20rules.
The changes do alter how pharmacies are treated by Medicare. For example Part D and MA-PD providers are required to treat an “essential” pharmacy as “in network”. One change from the original Carter bill is that this only comes into effect after 2028; the original bill (the one Carter quotes) had the changes kicking in on Jan 1, 2028.
Representative Carter’s page does make clear that the original bill was HR4317, this one:
https://www.congress.gov/bill/119th-congress/house-bill/4317/text
It seems substantially the same as the Senate bill, S3345, that was introduced later at the start of December, this one:
https://www.congress.gov/bill/119th-congress/senate-bill/3345
Both bills got “stuck” in committee; the Speaker in the House immediately sent the Carter bill to a large number of committees. That reminds me of the management technique of dealing with something the manager does not want to deal with; get lots of other people to review and comment on it. Choose enough busy minions and you can guarantee you will never hear of it again.
The Senate bill, however, has powerful cosponsors; Wyden being a very senior Democrat particularly focused on health issues and Grassley, the President pro tempore. As a result the stuff that remains from HR4317 should be a shoo-in.
Pharmacy Benefit Managers
This starts on page 1337 line 7 (after the “essential retail pharmacy” stuff which basically establishes pharmacies with no other close pharmacy as a special group). There are enforcement changes here; it comes down to slight and, supposedly, conforming changes to allow pharmacies to complain about PBMs.
It’s trying to enable enforcement of “the standards for reasonable and relevant contract terms” for PBMs by requiring investigation of pharmacy complaints and introducing reporting requirements. My guess is that this is “conforming” because it does not materially change the “standards” themselves. It only starts in 2029. The bill appropriates $188mil from the treasury to pay for this; I believe this means it doesn’t steal from the medicare trust funds but it’s a one-time payment.
Section 6224 is perhaps more aggressive. It does seem to impose reporting requirements on PBMs, starting in 2028 (for a first report by July 1) and it has a collection of shall-nots, the magic term introducing a compulsory thing, not a recommendation. (Generally used in ISO standards and therefore well understood.)
The magic seems to be, “NO INCOME OTHER THAN BONA FIDE SERVICE FEES”. The work-round for the appropriation bill is may the preceding sentence. See page 1346 line 22f Yeah; the whole paragraph is one sentence and I don’t think the commas should be there either!
Yes, it is true, much of the text is a set of reporting requirements and, yep, those are certainly onerous. It has the general form of a SLAPP suit; it will be expensive for the PBMs and the insurance companies to implement.
The thing about the appropriations bill requirements is that they are rules made by the chambers, not matters of law. My understanding is that if the bill as written gets made into law then it is law even if it made a mockery of the appropriations rules.
