I 

111TH CONGRESS 

1ST SESSION H. R. 4199 

To ensure patient choice in pharmacies by regulating pharmacy benefit managers and to establish a program to improve access to prescription 

drugs for certain individuals. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 3, 2009 

Mr. BUTTERFIELD (for himself, Mr. JONES, Mr. KISSELL, Mr. MCINTYRE, 

Mr. COBLE, Mr. MILLER of North Carolina, Mr. ALEXANDER, and Mrs. 

MCMORRIS RODGERS) introduced the following bill; which was referred 

to the Committee on Energy and Commerce, and in addition to the Committee on Ways and Means, for a period to be subsequently determined 

by the Speaker, in each case for consideration of such provisions as fall 

within the jurisdiction of the committee concerned 

A BILL 

To ensure patient choice in pharmacies by regulating pharmacy benefit managers and to establish a program to 

improve access to prescription drugs for certain individuals. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Patient Health and 

5 Real Medication Access Cost Savings Act of 2009’’ or the 

6 ‘‘PHARMACY Bill’’. 


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1 SEC. 2. PATIENT CHOICE. 

2 A consumer shall have the right to choose to purchase 

3 prescription drugs from any domestic pharmacy that 

4 meets all applicable Federal and State licence and permit 

5 requirements. 

6 SEC. 3. REGULATION OF PHARMACY BENEFIT MANAGERS. 

7 Not later than January 1, 2011, the Secretary of 

8 Health and Human Services shall issue regulations to en9 sure the following: 

10 (1) ACCESS TO AND CHOICE OF PHARMACY.— 

11 (A) INCENTIVES.—A pharmacy benefit 

12 manager (referred to in this section as a 

13 ‘‘PBM’’) may not provide incentives (including 

14 variations in premiums, deductibles, co-pay15 ments, or co-insurance rates) to enrollees of 

16 pharmacy benefit plans administered by such 

17 PBM for the purpose of encouraging such en18 rollees to use certain pharmacies (including 

19 mail order pharmacies, speciality drug phar20 macies, or other entities) unless the PBM offers 

21 the same incentives for all pharmacies in the 

22 network for such plan. 

23 (B) MANDATES.—A PBM may not refer, 

24 coerce, or mandate that an enrollee of a phar25 macy benefit plan administered by such PBM 


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1 use a specific mail order pharmacy, specialty 

2 drug pharmacy, or other entity— 

3 (i) if the PBM has an ownership in4 terest in a such pharmacy or entity; or 

5 (ii) if the pharmacy or entity has an 

6 ownership interest in such PBM. 

7 (C) PHARMACY NETWORKS.—A PBM or 

8 pharmacy benefit plan sponsor may not exclude 

9 a pharmacy from a pharmacy network if— 

10 (i) the pharmacy agrees to the terms 

11 of the network contract; 

12 (ii) the pharmacy meets all applicable 

13 Federal and State licence and permit re14 quirements; and 

15 (iii) the owners of the pharmacy have 

16 not been convicted of a Federal crime re17 lated to owning or managing a pharmacy. 

18 (2) ENCOURAGE GENERIC DRUGS.— 

19 (A) COST TO CONSUMERS.— 

20 (i) IN GENERAL.—Subject to clause 

21 (iii), a PBM shall ensure that enrollees of 

22 pharmacy benefit plans administered by 

23 such a PBM pay a copayment of 20 per24 cent for brand name drugs, not to exceed 


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1 a maximum amount of $150 per prescrip2 tion. 

3 (ii) ANNUAL UPDATES TO AMOUNT.— 

4 The maximum amount under clause (i) 

5 shall be updated annually for inflation 

6 based on the consumer price index. 

7 (iii) EXCEPTION FOR STATE MEDICAID

8 PROGRAMS.—Clause (i) shall not apply to 

9 a PBM with respect to enrollees of a State 

10 Medicaid program that limits or prohibits 

11 copayments for prescription drugs. 

12 (B) PAYMENTS TO PHARMACIES.— 

13 (i) IN GENERAL.—With respect to a 

14 pharmacy benefit plan that is at least par15 tially funded with Federal funds, the PBM 

16 administering such plan shall reimburse a 

17 pharmacy that is in the network for such 

18 a plan at least— 

19 (I) 107 percent of the Wholesale 

20 Acquisition Cost plus a minimum pro21 fessional dispensing fee of $4.25 for a 

22 prescription for a brand-name drug; 

23 (II) 190 percent of the Federal 

24 Upper Limit plus a minimum profesVerDate Nov 24 2008 00:45 Dec 04, 2009 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4199.IH H4199

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1 sional dispensing fee of $8.50 for a 

2 prescription for a generic drug; and 

3 (III) a professional service fee for 

4 any additional pharmacy services pro5 vided by the pharmacy, in an amount 

6 set by the Secretary of Health and 

7 Human Services. 

8 (ii) ADJUSTMENT FOR INFLATION.— 

9 The professional dispensing fees under 

10 clause (i) shall be adjusted annually for in11 flation, based on the consumer price index. 

12 (3) PAYMENTS AND CHARGES BETWEEN PBMS

13 AND PHARMACY BENEFIT PLAN SPONSORS.— 

14 (A) PAYMENTS.—A PBM shall be reim15 bursed by a pharmacy benefit plan sponsor for 

16 adjudicating and processing claims in behalf of 

17 such sponsor at a rate that is determined by 

18 such sponsor. 

19 (B) CHARGES TO PHARMACY BENEFIT

20 PLAN SPONSORS FOR DRUGS DISPENSED TO

21 PLAN ENROLLEES.—The amount that a PBM 

22 charges a pharmacy benefit plan sponsor for a 

23 drug that is dispensed to enrollee of a phar24 macy benefit plan administered by such PBM 

25 may not be greater than the amount that the 


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1 PBM paid the pharmacy for such drug (includ2 ing any associated professional dispensing fee). 

3 (4) TREATMENT OF DRUG MANUFACTURER RE4 BATES.— 

5 (A) NO REBATES TO PBMS.—A manufac6 turer of prescription drugs— 

7 (i) shall pay all rebates, as defined in 

8 section 5(6), directly to the pharmacy ben9 efit plan sponsor; and 

10 (ii) shall not pay such rebates to a 

11 PBM. 

12 (B) NEGOTIATION ALLOWED.—A PBM 

13 may negotiate rebate amounts with a manufac14 turer of prescription drugs on behalf of a phar15 macy benefit plan sponsor. 

16 (5) PROVISION OF COST INFORMATION TO PHY17 SICIANS.—In the case that the premium, deductible, 

18 co-payments, co-insurance, or other insurance-re19 lated charge under a pharmacy benefit plan is un20 derwritten, in whole or in part, by a Federal, State, 

21 or local government, the pharmacy benefit plan 

22 sponsor shall provide a list of the wholesale acquisi23 tion costs of the top 500 most frequently prescribed 

24 drugs to physicians who are licenced to prescribe 


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1 drugs and who provide treatment to enrollees in 

2 such a plan. 

3 (6) TREATMENT OF PHARMACISTS AS PROFES4 SIONAL HEALTH CARE PROVIDERS.—Section 

5 1861(s)(2) of the Social Security Act (42 U.S.C. 

6 1395x(s)(2)) is amended— 

7 (A) by striking ‘‘and’’ at the end of sub8 paragraph (DD); 

9 (B) by adding ‘‘and’’ at the end of sub10 paragraph (EE); and 

11 (C) by inserting after subparagraph (EE), 

12 the following new subparagraph: 

13 ‘‘(FF) pharmacist services;’’. 

14 SEC. 4. PHARMACEUTICAL ACCESS PROGRAM. 

15 (a) ESTABLISHMENT.—Not later than January 1, 

16 2011, the Secretary of Health and Human Services shall 

17 establish a pharmaceutical access program to provide af18 fordable access to prescription drugs to individuals who 

19 receive drug benefits under Federal programs (except for 

20 the Medicaid program under title XIX of the Social Secu21 rity Act). 

22 (b) ELIGIBILITY.—Any individual in a State shall be 

23 eligible to enroll in the program under subsection (a). 

24 (c) FEES.— 


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1 (1) IN GENERAL.—A pharmacy that dispenses 

2 prescription drugs in the United States shall remit 

3 to the Secretary of Health and Human Services— 

4 (A) $0.50 for each prescription dispensed 

5 by such pharmacy for a brand name drug; and 

6 (B) $1.00 for each prescription dispensed 

7 by such pharmacy for a generic drug. 

8 (2) TREATMENT FOR INFLATION.—The fees 

9 under paragraph (1) shall be adjusted annually for 

10 inflation, based on the consumer price index. 

11 (3) TREATMENT OF MEDICAID PROGRAMS.— 

12 The rule under paragraph (1) shall not apply to 

13 drugs dispensed under a State Medicaid program 

14 under title XIX of the Social Security Act. 

15 (4) INCREASE IN PROFESSIONAL DISPENSING

16 FEE FOR PRIVATE PLANS.—The professional dis17 pensing fee paid to pharmacies by a pharmacy ben18 efit plan that is not funded by any Federal funds 

19 shall be increased by such plan sponsor— 

20 (A) by $0.50 for each brand name pre21 scription; and 

22 (B) by $1.00 for each generic prescription. 

23 (d) USE OF FUNDS.—Funds generated under sub24 section (c) shall be used solely to provide affordable access 


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1 to prescription drugs to low-income individuals who have 

2 enrolled in the program under subsection (a). 

3 SEC. 5. DEFINITIONS. 

4 For purposes of this Act: 

5 (1) BRAND NAME DRUGS.—The term ‘‘brand 

6 name drug’’ means a prescription drug that is under 

7 patent by the drug’s original manufacturer and is 

8 protected from competition by other manufacturers 

9 of prescription drugs. 

10 (2) GENERIC DRUG.—The term ‘‘generic drug’’ 

11 means a prescription drug that has lost patient pro12 tection provided to a single manufacturer or multiple 

13 manufacturers and is widely available from multiple 

14 manufacturers. 

15 (3) PHARMACY BENEFIT PLAN.—The term 

16 ‘‘pharmacy benefit plan’’ means an insurance plan 

17 or insurance coverage that provides benefits for pre18 scription drugs, including a group health plan (as 

19 such term is defined in section 733(a) of the Patient 

20 Health and Real Medication Access Cost Savings 

21 Act of 2009 (29 U.S.C. 1191b(a))) that provides 

22 prescription drug benefits. 

23 (4) PROFESSIONAL DISPENSING FEE.—The 

24 term ‘‘professional dispensing fee’’ means the fee 

25 paid for the dispensing of a drug by the pharmacist 


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1 and excludes any reimbursement for the cost of the 

2 drug. 

3 (5) PROFESSIONAL SERVICE FEE.—The term 

4 ‘‘professional service fee’’ means a fee paid to a 

5 pharmacy for professional services preformed by a 

6 pharmacist, excluding dispensing drugs and any re7 imbursement for the cost of the drug. Such term 

8 may include medication reviews, injections, and cho9 lesterol checks. 

10 (6) REBATE.—The term ‘‘rebate’’ means any 

11 item of value, including monetary value, that is dis12 tributed by the manufacturer conditional upon the 

13 receipt of a payment for drugs produced by such 

14 manufacturer. 

Æ 


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