Trump Reignites Drug Pricing Talk in Congress

Senators looking to ban the “gag clauses” that prevent pharmacists from telling those with insurance when they could save money by paying for their prescriptions with cash are hoping President Donald Trump can help turn their legislation into law.

Sens. Bill Cassidy (R-La.), Susan Collins (R-Maine), and Claire McCaskill (D-Mo.) all told Bloomberg Law Trump reignited interest in their bill (S. 2554) when he called the gag clauses a “total rip-off” and vowed to end the practice as part of his wide-ranging plan to tackle drug prices. The measure could be part of a package of drug pricing bills lawmakers are mulling as part of the Trump administration’s drug pricing plan.

“With the president’s help I know we can get it through the House at least,” McCaskill said.

Several senators told Bloomberg Law they’re unsure what parts of Trump’s drug pricing plan actually need congressional action, but noted they want to pass some drug pricing legislation this year. Most are waiting for more guidance from the administration.

Democrats in Congress have largely panned Trump’s drug pricing plan as containing half measures, but some are hoping to use the president to get their bills passed. “We gotta do what we can do,” McCaskill said. “There’s nothing more frustrating than standing around here everybody hollering at each other, not getting anything done.”

Moving Legislation

Banning the gag clauses could represent an easy win because it’s backed by progressives like Sens. Ron Wyden (D-Ore.) and Sherrod Brown (D-Ohio) as well as conservatives like Sens. Rand Paul (R-Ky.) and John Barrasso (R-Wyo.).

Collins said she’s hoping the Senate Health, Education, Labor and Pensions Committee can expedite consideration of the legislation, which mirrors bans already in effect in several states, including Connecticut, Texas, and Georgia. Her bill looks to ban the gag clauses in individual insurance plans sold on Obamacare marketplaces. Another, also sponsored by the trio (S. 2553) and other senators including Debbie Stabenow (D-Mich.), would ban the practice in Medicare Part D and Medicare Advantage plans.

Trump’s drug pricing plan doesn’t actually promise to end the gag clauses, but says the administration “may” prohibit Medicare Part D plan contracts from using them.

Sen. Lamar Alexander (R-Tenn.), chairman of the Senate HELP Committee, told Bloomberg Law he’s waiting on guidance from the Trump administration about what parts of Trump’s drug-pricing plan need Congress to act and what can be done via executive action. Alexander said he spoke with Health and Human Services Secretary Alex Azar May 11, the same day Trump unveiled his drug pricing plan, to discuss possible legislation.

Alexander said he’s interested in Trump’s proposals to make it easier for consumers to get over-the-counter drugs, to reduce out-of-pocket costs for Medicare beneficiaries, and in looking at how rebates for some drugs can actually drive up their cost.

Cassidy, who was a guest of the president for his drug pricing speech May 11, told Bloomberg Law lawmakers haven’t been given specific guidance yet about what the administration wants from Congress on drug pricing.

Trump’s call to revisit safe harbor protections that drug rebates have under federal anti-kickback rules will likely need a legislative change, Cassidy said.

Food and Drug Administration Commissioner Scott Gottlieb told a recent conference of pharmaceutical-industry lawyers in Washington “such a step could help restore some semblance of reality to the relationship between list and negotiated prices, and thereby boost affordability and competition.”