[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3330 Introduced in Senate (IS)]
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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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. STUDY ON FIDUCIARY DUTIES OF PHARMACY BENEFIT MANAGERS.
(a) In General.--Not later than 2 years after the date of enactment
of this Act, the Secretary of Labor shall conduct, and submit to
Congress a report describing the results of, a study on the impacts of
a change in policy described in subsection (b).
(b) Policy Described.--Under a policy referred to in subsection
(a)--
(1) an entity providing pharmacy benefit management
services would be considered a fiduciary within the meaning of
section 3(21) of the Employee Retirement Income Security Act of
1974 (29 U.S.C. 1002(21)) with respect to a group health plan
or group health insurance coverage;
(2) such an entity would--
(A) be subject to the responsibilities,
obligations, and duties imposed on fiduciaries under
part 4 of subtitle B of title I of such Act (29 U.S.C.
1101 et seq.); and
(B) make the required fiduciary disclosure under
section 408(b)(2)(B)(iii) of such Act (29 U.S.C.
1108(b)(2)(B)(iii)) with respect to the pharmacy
benefit management services provided to the plan or
coverage;
(3) nothing would be construed to prohibit entities
providing pharmacy benefits management services from retaining
bona fide service fees in accordance with the requirements of
section 408(b)(2) of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1108(b)(2)); and
(4) bona fide service fees would be per se unreasonable for
purposes of this section and such section if such fees are--
(A) based on drug price (such as wholesale
acquisition cost) or drug benchmark price (such as
average wholesale price);
(B) discounts, rebates, fees, or other remuneration
with respect to prescription drugs prescribed to
participants or beneficiaries in the plan or coverage;
or
(C) otherwise determined by the Secretary to be
unreasonable.
(c) Definitions.--In this section:
(1) Bona fide service fees.--The term ``bona fide service
fees'' means fees paid by a manufacturer, customer, or client
(other than a group health plan or health insurance issuer) of
an entity providing pharmacy benefit management services, to an
entity providing pharmacy benefit management services, that
represent fair-market value for bona fide, itemized services
actually performed on behalf of the manufacturer, customer, or
client and that the manufacturer, customer, or client would
otherwise perform or contract for in the absence of the service
arrangement, and that are not passed on in whole or in part to
a client or customer of an entity, whether or not the entity
takes possession of the drug.
(2) Wholesale acquisition cost.--The term ``wholesale
acquisition cost'' has the meaning given such term in section
1847A(c)(6)(B) of the Social Security Act (42 U.S.C. 1395w-
3a(c)(6)(B)).
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