II 118TH CONGRESS 1ST SESSION S. 1374 To prohibit group health plans and health insurance issuers from entering into contracts that would prevent or restrict patient access to drug pricing information otherwise available through consumer decision-sup- port tools. IN THE SENATE OF THE UNITED STATES APRIL 27, 2023 Mr. MARSHALL (for himself, Mr. MARKEY, Mr. GRASSLEY, and Mr. KAINE) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To prohibit group health plans and health insurance issuers from entering into contracts that would prevent or re- strict patient access to drug pricing information other- wise available through consumer decision-support tools. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Patient Right to Shop 4 Act’’. 5 VerDate Sep 11 2014 03:58 May 06, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1374.IS S1374 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •S 1374 IS SEC. 2. PROHIBITION ON BLOCKING CONSUMER DECISION- 1 SUPPORT TOOLS. 2 (a) PHSA.—Part D of title XXVII of the Public 3 Health Service Act (42 U.S.C. 300gg–111 et seq.) is 4 amended by adding at the end the following: 5 ‘‘SEC. 2799A–11. PROHIBITION ON BLOCKING CONSUMER 6 DECISION-SUPPORT TOOLS. 7 ‘‘(a) IN GENERAL.—A group health plan or a health 8 insurance issuer offering group or individual health insur- 9 ance coverage shall not enter into a contract with an entity 10 that provides pharmacy benefit management services with 11 respect to such plan or coverage if such contract— 12 ‘‘(1) includes any terms, conditions, or costs 13 that would prevent or restrict a third party who is 14 in contract with the plan or issuer to provide a con- 15 sumer decision-support tool from using relevant in- 16 formation regarding prescription drug benefits under 17 the plan or coverage that are administered by the 18 entity providing pharmacy benefit management serv- 19 ices in contract with the plan or issuer; or 20 ‘‘(2) fails to clearly state that the entity pro- 21 viding pharmacy benefit management services is re- 22 quired to provide data required under paragraph (1) 23 in machine readable format for the operability, im- 24 plementation, and utilization of any such consumer 25 decision-support tool at no cost (direct or indirect) 26 VerDate Sep 11 2014 03:58 May 06, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1374.IS S1374 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •S 1374 IS to the group health plan, health insurance issuer, or 1 the third party providing such consumer decision 2 support. 3 ‘‘(b) CONSUMER DECISION-SUPPORT TOOL.—In this 4 section, the term ‘consumer decision-support tool’ means 5 a tool designed to inform enrollees in a group health plan 6 or health insurance coverage about all costs for prescrip- 7 tion drugs covered by the plan or coverage, including out- 8 of-pocket, copayment, and coinsurance responsibility, as 9 well as additional savings opportunities through other 10 channels such as manufacturer copayment assistance, 11 cash price, and mail order pharmacy benefits.’’. 12 (b) ERISA.— 13 (1) IN GENERAL.—Subpart B of part 7 of sub- 14 title B of title I of the Employee Retirement Income 15 Security Act of 1974 (29 U.S.C. 1185 et seq.) is 16 amended by adding at the end the following: 17 ‘‘SEC. 726. PROHIBITION ON BLOCKING CONSUMER DECI- 18 SION-SUPPORT TOOLS. 19 ‘‘(a) IN GENERAL.—A group health plan or a health 20 insurance issuer offering group health insurance coverage 21 shall not enter into a contract with an entity that provides 22 pharmacy benefit management services with respect to 23 such plan or coverage if such contract— 24 VerDate Sep 11 2014 03:58 May 06, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1374.IS S1374 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •S 1374 IS ‘‘(1) includes any terms, conditions, or costs 1 that would prevent or restrict a third party who is 2 in contract with the plan or issuer to provide a con- 3 sumer decision-support tool from using relevant in- 4 formation regarding prescription drug benefits under 5 the plan or coverage that are administered by the 6 entity providing pharmacy benefit management serv- 7 ices in contract with the plan or issuer; or 8 ‘‘(2) fails to clearly state that the entity pro- 9 viding pharmacy benefit management services is re- 10 quired to provide data required under paragraph (1) 11 in machine readable format for the operability, im- 12 plementation, and utilization of any such consumer 13 decision-support tool at no cost (direct or indirect) 14 to the group health plan, health insurance issuer, or 15 the third party providing such consumer decision 16 support. 17 ‘‘(b) CONSUMER DECISION-SUPPORT TOOL.—In this 18 section, the term ‘consumer decision-support tool’ means 19 a tool designed to inform participants and beneficiaries in 20 a group health plan or health insurance coverage about 21 all costs for prescription drugs covered by the plan or cov- 22 erage, including out-of-pocket, copayment, and coinsur- 23 ance responsibility, as well as additional savings opportu- 24 nities through other channels such as manufacturer copay- 25 VerDate Sep 11 2014 03:58 May 06, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1374.IS S1374 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •S 1374 IS ment assistance, cash price, and mail order pharmacy ben- 1 efits.’’. 2 (2) CLERICAL AMENDMENT.—The table of con- 3 tents in section 1 of the Employee Retirement In- 4 come Security Act of 1974 (29 U.S.C. 1001 et seq.) 5 is amended by inserting after the item relating to 6 section 725 the following: 7 ‘‘Sec. 726. Prohibition on blocking consumer decision-support tools.’’. (c) INTERNAL REVENUE CODE.— 8 (1) IN GENERAL.—Subchapter B of chapter 9 100 of the Internal Revenue Code of 1986 is amend- 10 ed by adding at the end the following new section: 11 ‘‘SEC. 9826. PROHIBITION ON BLOCKING CONSUMER DECI- 12 SION-SUPPORT TOOLS. 13 ‘‘(a) IN GENERAL.—A group health plan offering 14 group health insurance coverage shall not enter into a con- 15 tract with an entity that provides pharmacy benefit man- 16 agement services with respect to such plan if such con- 17 tract— 18 ‘‘(1) includes any terms, conditions, or costs 19 that would prevent or restrict a third party who is 20 in contract with the plan to provide a consumer deci- 21 sion-support tool from using relevant information re- 22 garding prescription drug benefits under the plan 23 that are administered by the entity providing phar- 24 VerDate Sep 11 2014 03:58 May 06, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1374.IS S1374 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •S 1374 IS macy benefit management services in contract with 1 the plan; or 2 ‘‘(2) fails to clearly state that the entity pro- 3 viding pharmacy benefit management services is re- 4 quired to provide data required under paragraph (1) 5 in machine readable format for the operability, im- 6 plementation, and utilization of any such consumer 7 decision-support tool at no cost (direct or indirect) 8 to the group health plan or the third party providing 9 such consumer decision support. 10 ‘‘(b) CONSUMER DECISION-SUPPORT TOOL.—In this 11 section, the term ‘consumer decision-support tool’ means 12 a tool designed to inform participants and beneficiaries in 13 a group health plan about all costs for prescription drugs 14 covered by the plan, including out-of-pocket, copayment, 15 and coinsurance responsibility, as well as additional sav- 16 ings opportunities through other channels such as manu- 17 facturer copayment assistance, cash price, and mail order 18 pharmacy benefits.’’. 19 (2) CLERICAL AMENDMENT.—The table of sec- 20 tions for subchapter B of chapter 100 of such Code 21 is amended by adding at the end the following new 22 item: 23 ‘‘Sec. 9826. Prohibition on blocking consumer decision-support tools.’’. (d) APPLICATION.—The amendments made by sub- 24 sections (a), (b), and (c) shall apply with respect to plan 25 VerDate Sep 11 2014 03:58 May 06, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1374.IS S1374 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •S 1374 IS years beginning on or after the date that is 2 years after 1 the date of enactment of this Act. 2 (e) REGULATIONS.—The Secretary of Health and 3 Human Services, the Secretary of Labor, and the Sec- 4 retary of the Treasury shall jointly promulgate regulations 5 to carry out the amendments made by subsections (a), (b), 6 and (c), and shall issue draft regulations not later than 7 1 year after the date of enactment of this Act. 8 Æ VerDate Sep 11 2014 03:58 May 06, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\S1374.IS S1374 pbinns on DSKJLVW7X2PROD with $$_JOB