Bills have been filed in at least five state legislatures to protect 340B covered entities and their contract pharmacies from discrimination by pharmacy benefit managers (PBMs).
Sixteen states have enacted one or more such laws since 2019, according to a paper that community health center advocates circulated last summer just before bipartisan federal legislation was introduced.
U.S. Reps. David McKinley (R-W.Va.) and Abigail Spanberger’s (D-Va.) PROTECT 340B Act, H.R. 4390, would prohibit pharmacy benefit managers (PBMs) and other third-party payers from paying 340B providers below-market rates or engaging in other perceived discriminatory contracting practices. Their bill also would require the U.S. Department of Health and Human Services (HHS) to contract with a “neutral third-party” to serve as a claims data clearinghouse to protect drug manufacturers from giving Medicaid rebates and 340B discounts on the same drugs. Including McKinley and Spanberger, 64 representatives are backing the bill.
340B covered entity advocates say that while getting state 340B “anti-pickpocketing” laws passed is vital, payer and PBM discrimination against covered entities and their contract pharmacies happens nationwide and requires a federal response.
The latest state bills are in Florida, Kentucky, Missouri, Nebraska, and New Hampshire. All address discrimination against 340B entities as part of broader PBM reform.
Florida
Sponsored by State Sen. Tom Wright (R)
Prohibits health insurers, health maintenance organizations, pharmacy benefit managers, or “other third parties” from discriminating against 340B entities and their contract pharmacies. Topics addressed:
- Drug reimbursement
- Fees, chargebacks, or other adjustments
- Network pharmacy participation
- Claims identification requirements
Kentucky
12 sponsors
Prohibits a PBM from “discriminat[ing] against any pharmacy, including a 340B entity.” Topics addressed:
- Identifying 340B-purchased drugs as such at point of sale
- Drug reimbursement
- Fees, chargebacks, or other adjustments
Missouri
Sponsored by Assistant Majority Floor Leader Bill White (R) and State Sen. Karla Eslinger (R)
Prohibits health care payers and PBMs from discriminating against 340B covered entities and or their contract pharmacies. Topics addressed:
- Drug reimbursement
- Fees, chargebacks, and clawbacks
- Dispensing fees
- Pharmacy network access
- Audits
- “Any other restrictions, conditions, practices, or policies that…interfere with the ability of a covered entity to maximize the value of” 340B drug discounts
- Individual’s choice to use a 340B entity’s own or contracted pharmacy
- Identifying 340B drugs either directly or through a third party
- Refusing to contract with a covered entity or 340B contract pharmacy based on the entity or pharmacy’s involvement in 340B
- Civil penalty of up to $5,000 per day for PBM violations
Nebraska
10 sponsors
Forbids PBMs from discriminating against 340B entities and their contract pharmacies. Topics addressed:
- Drug reimbursement
- Fees, chargebacks, or other adjustments
- Individual choice to receive drugs from a 340B entity
New Hampshire
Sponsored by State Rep. Susan DeLemus (R)
Forbids PBMs or third parties from discriminating against 340B entities and their contract pharmacies. Topics addressed:
- Drug reimbursement
- Fees, chargebacks, other adjustments
- Patient choice to receive prescription drugs from a 340B entity (state Medicaid FFS and Medicaid managed care excluded)
