Earlier this year, the Federal Trade Commission (FTC) issued a Request for Information, covering a wide range of topics in the Pharmacy Benefit Manager (PBM) market, focused on how PBMs impact drug affordability and access. Topics the FTC would like comment on include contract terms, rebates, fees, pricing policies, steering methods, conflicts of interest, and consolidation. FTC has asked for information on these practices and the impact they have on patients, providers, employers, independent and chain pharmacies, and other businesses across the distribution system.
Specifically, the FTC is looking for information on the impact of PBM rebates and fees on: (1) net drug prices to patients, employers, and other payers and (2) formulary design and patients’ ability to access prescribed medications without endangering their health, creating unnecessary delay, or imposing administrative burdens for patients or prescribers.
The FTC is also seeking information on whether patients are being forced to substitute prescriptions to maximize PBM rebates and fees.
Additionally, the FTC is asking for comments on PBMs’ use of potentially unfair, deceptive, or anticompetitive practices, including but not limited to:
- Contract terms and all related practices when calculating pharmacy reimbursements and disbursements
- Including Average Wholesale Price, Wholesale Acquisition Cost, Maximum Allowable Cost, and Usual and Customary Pricing
- Claw backs, fees, discounts, and performance metrics
- Audit provisions
- Pharmacy network design and exclusions
- Use of gag clauses, confidentiality clauses, and non-disparagement clauses
The FTC also seeks specific information regarding PBM practices and policies surrounding specialty drugs and pharmacies, including the criteria used in designating specialty drugs, reimbursements to specialty pharmacies, and practices relating to dispensing high-cost specialty drugs over alternatives.
Finally, the FTC specifically requests comments on whether there are potential conflicts of interest and anticompetitive impact from horizontal and vertical consolidation of PBMs with insurance companies, specialty pharmacies, and providers.
The FTC hopes that responses to the Request for Information will allow staff to study a wide array of PBM business practices and issues that will help to inform its policy and enforcement work. Anyone can submit a comment or concern that they believe is relevant or appropriate by submitting written data, views, facts, and opinions.
If you are interested in submitting a public comment, you must do so by April 25, 2022, and can submit it here.