Bloomberg Law
March 28, 2023, 3:20 PM

End Delay of Drug Price Transparency Rule, Employer Group Urges

Sara Hansard
Sara Hansard
Senior Reporter

An employer group wants the Biden administration to move ahead with requirements making detailed drug price information public as momentum grows behind the issue.

A public policy think tank is also suing to hurry the process, while a House panel is holding a hearing Tuesday on making prices easier to find and track.

“All the employer groups are in favor of transparency,” James Gelfand, president of the ERISA Industry Committee, said in an interview, but the Biden administration indefinitely delayed implementation of the drug price provisions of the Trump administration’s 2020 transparency in coverage rule when the Pharmaceutical Care Management Association and the U.S. Chamber of Commerce filed lawsuits against them.

“The administration should fully implement the transparency in coverage rule, even if the health industry doesn’t want them to,” Gelfand said in a separate email.

Employer groups have battled the health-care industry to get detailed information showing how much they are paying for hospital services and drugs so that they can determine if they’re paying fair prices. Consumers may also benefit from being able to get price information.

The PCMA and Chamber of Commerce withdrew their lawsuits after the administration issued guidance deferring enforcement of the drug price transparency provisions pending further rulemaking while leaving in place requirements that health plans publish other medical claims prices.

The departments of Health and Human Services, Labor, and the Treasury said the Consolidated Appropriations Act, 2021 “significantly changed the regulatory landscape” since the Trump transparency rule was adopted, and “stakeholders have expressed concern about potentially duplicative and overlapping reporting requirements for prescription drugs.” Neither the PCMA nor the Chamber responded to requests for comment.

The transparency in coverage rule required prescription drug information that included “every net real price that every employer and every insurer in the country paid for every drug,” Gelfand said. The Consolidated Appropriations Act of 2021 “required employers and insurers to submit a tiny amount of data to the Department of Health and Human Services, and HHS would then de-identify and aggregate that information and publish some kind of public report,” he said. The two requirements weren’t duplicative, he said.

The Florida-based Foundation for Government Accountability filed a federal lawsuit March 23 against the three agencies for not enforcing the drug price transparency rule. The group also sued the Biden administration in 2022 asking that the administration step up enforcement of a similar hospital price transparency rule issued by the Trump administration. The FGA is a free market oriented think tank.

Gelfand said ERIC doesn’t “have a position on the lawsuit, but we agree with their goal.”

Transparency Hearing

The House Energy & Commerce Committee’s health subcommittee is holding a hearing Tuesday on lowering health-care costs through transparency and competition.

“Ensuring that consumers have access to readily available information about prices in health care is really important, because it’s a sector of the economy that has just been missing that critical information,” Hayden Dublois, data and analytics director for the Foundation for Government Accountability, said in an interview. The Trump rules “were so critical to giving consumers the information they need to make informed decisions,” he said.

The drug price transparency requirements don’t overlap with the Consolidated Appropriations Act of 2021, both Gelfand and Dublois said. The act dealt with “complementary material related to the 50 most in-demand drugs and some high health-care expenses,” Dublois said. The transparency in coverage rule “was much more robust, dealing with much broader information on net pricing and negotiated rates for all covered prescription drugs,” he said.

“It’s a convenient excuse by the Biden administration to say, well that’s duplicative, when in reality they’re almost non-overlapping because the information required in the Consolidated Appropriations Act is quite different than what this rule required,” Dublois said.

Dublois said that as a result of another lawsuit his foundation filed against the Centers for Medicare & Medicaid Services, the agency is turning over records of warnings, corrective action plans, and monetary penalties issued for hospitals that don’t comply with the hospital price transparency rule.

The CMS said in an email that “CMS does not comment on pending litigation.”

To contact the reporter on this story: Sara Hansard in Washington at

To contact the editor responsible for this story: Karl Hardy at

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