II 

118TH CONGRESS 

1ST SESSION S. 3330 

To require the Secretary of Labor to conduct a study on the fiduciary 

duties of pharmacy benefit managers. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 15, 2023 

Mr. BRAUN (for himself, Ms. HASSAN, Mr. MARSHALL, Mr. BUDD, 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 require the Secretary of Labor to conduct a study on 

the fiduciary duties of pharmacy benefit managers. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. STUDY ON FIDUCIARY DUTIES OF PHARMACY 

4 BENEFIT MANAGERS. 

5 (a) IN GENERAL.—Not later than 2 years after the 

6 date of enactment of this Act, the Secretary of Labor shall 

7 conduct, and submit to Congress a report describing the 

8 results of, a study on the impacts of a change in policy 

9 described in subsection (b). 


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1 (b) POLICY DESCRIBED.—Under a policy referred to 

2 in subsection (a)— 

3 (1) an entity providing pharmacy benefit man4 agement services would be considered a fiduciary 

5 within the meaning of section 3(21) of the Employee 

6 Retirement Income Security Act of 1974 (29 U.S.C. 

7 1002(21)) with respect to a group health plan or 

8 group health insurance coverage; 

9 (2) such an entity would— 

10 (A) be subject to the responsibilities, obli11 gations, and duties imposed on fiduciaries 

12 under part 4 of subtitle B of title I of such Act 

13 (29 U.S.C. 1101 et seq.); and 

14 (B) make the required fiduciary disclosure 

15 under section 408(b)(2)(B)(iii) of such Act (29 

16 U.S.C. 1108(b)(2)(B)(iii)) with respect to the 

17 pharmacy benefit management services provided 

18 to the plan or coverage; 

19 (3) nothing would be construed to prohibit enti20 ties providing pharmacy benefits management serv21 ices from retaining bona fide service fees in accord22 ance with the requirements of section 408(b)(2) of 

23 the Employee Retirement Income Security Act of 

24 1974 (29 U.S.C. 1108(b)(2)); and 


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1 (4) bona fide service fees would be per se un2 reasonable for purposes of this section and such sec3 tion if such fees are— 

4 (A) based on drug price (such as wholesale 

5 acquisition cost) or drug benchmark price (such 

6 as average wholesale price); 

7 (B) discounts, rebates, fees, or other remu8 neration with respect to prescription drugs pre9 scribed to participants or beneficiaries in the 

10 plan or coverage; or 

11 (C) otherwise determined by the Secretary 

12 to be unreasonable. 

13 (c) DEFINITIONS.—In this section: 

14 (1) BONA FIDE SERVICE FEES.—The term 

15 ‘‘bona fide service fees’’ means fees paid by a manu16 facturer, customer, or client (other than a group 

17 health plan or health insurance issuer) of an entity 

18 providing pharmacy benefit management services, to 

19 an entity providing pharmacy benefit management 

20 services, that represent fair-market value for bona 

21 fide, itemized services actually performed on behalf 

22 of the manufacturer, customer, or client and that 

23 the manufacturer, customer, or client would other24 wise perform or contract for in the absence of the 

25 service arrangement, and that are not passed on in 


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1 whole or in part to a client or customer of an entity, 

2 whether or not the entity takes possession of the 

3 drug. 

4 (2) WHOLESALE ACQUISITION COST.—The term 

5 ‘‘wholesale acquisition cost’’ has the meaning given 

6 such term in section 1847A(c)(6)(B) of the Social 

7 Security Act (42 U.S.C. 1395w–3a(c)(6)(B)). 

Æ 


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