[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 3549 Introduced in Senate (IS)]
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119th CONGRESS
1st Session
S. 3549
To amend the Employee Retirement Income Security Act of 1974 to ensure
that pharmacy benefit managers are considered fiduciaries, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 17, 2025
Mr. Marshall (for himself, Mr. Kaine, Mr. Grassley, and Ms. Hassan)
introduced the following bill; which was read twice and referred to the
Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend the Employee Retirement Income Security Act of 1974 to ensure
that pharmacy benefit managers are considered fiduciaries, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``PBM Fiduciary Accountability,
Integrity, and Reform (FAIR) Act'' or the ``PBM FAIR Act''.
SEC. 2. ESTABLISHING FIDUCIARY DUTIES OF PHARMACY BENEFIT MANAGERS.
(a) Deeming Pharmacy Benefit Managers as ERISA Fiduciaries.--
Section 3(21) of the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1002(21)) is amended by adding at the end the following:
``(C) A person or entity shall be deemed to be a fiduciary with
respect to a group health plan for the purposes of this Act if the
person or entity--
``(i) maintains for the group health plan, the plan sponsor
or plan administrator of such plan, or a health insurance
issuer offering group health insurance coverage a prescription
drug provider network or prescription drug formulary through
the purchase of prescription drugs from a drug manufacturer,
distributor, wholesaler, rebate aggregator, group purchasing
organization, or any associated third party; or
``(ii) engages in, on behalf of, or in connection with, the
group health plan, the plan sponsor or plan administrator of
such plan, or a health insurance issuer offering group health
insurance coverage--
``(I) the negotiation or aggregation of rebates,
fees, discounts, or other price concessions for
prescription drugs;
``(II) the processing and payment of claims for
prescription drugs; or
``(III) the performance of utilization review and
management for prescription drugs on behalf of a group
health plan.''.
(b) Required Compensation Disclosures From Pharmacy Benefit
Managers and Third Party Administrators.--Section
408(b)(2)(B)(ii)(I)(bb) of the Employee Retirement Income Security Act
of 1974 (29 U.S.C. 1108(b)(2)(B)(ii)(I)(bb)) is amended by adding at
the end the following:
``(CC) Pharmacy benefit management services
provided to a covered plan, for which the
covered service provider, an affiliate, or a
subcontractor reasonably expects to receive
indirect compensation or direct compensation
described in item (dd), including the
establishment and maintenance of a prescription
drug provider network or prescription drug
formulary or through the purchase of
prescription drugs from a drug manufacturer,
distributor, wholesaler, rebate aggregator,
group purchasing organization, or any
associated third party for the covered plan.
``(DD) Third party administrative services
provided to a covered plan, for which the
covered service provider, an affiliate, or a
subcontractor reasonably expects to receive
indirect compensation or direct compensation
described in item (dd), including establishing
and maintaining a network of medical providers,
adjudicating or processing health claims,
maintaining records, and negotiating
reimbursement rates for the covered plan.''.
(c) Clarification of Responsible Plan Fiduciary.--Section
408(b)(2)(B)(ii)(I)(ee) of the Employee Retirement Income Security Act
of 1974 (29 U.S.C. 1108(b)(2)(B)(ii)(I)(ee)) is amended by inserting at
the end the following: ``A covered service provider may not be the
responsible plan fiduciary for purposes of the disclosures required
under clause (iii). Notwithstanding the preceding sentence, in the case
of a pharmacy benefit manager who sponsors a covered plan for the
employees of the pharmacy benefit manager, the pharmacy benefit manager
may be considered the responsible plan fiduciary for such plan.''.
(d) Prohibition on Indemnification for Breaches by a Section
3(21)(C) Fiduciary.--Section 410(a) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1110(a)) is amended--
(1) by striking ``Except'' and inserting ``(1) Except'';
and
(2) by adding at the end the following:
``(2) Except as provided in subsection (b)(2), no person or entity
deemed to be a fiduciary under section 3(21)(C) may be indemnified,
directly or indirectly, or otherwise relieved from liability for any
responsibility, obligation, or duty of such person or entity under this
part.
``(3) Any provision of contract in violation of paragraph (2) shall
be void as against public policy.''.
(e) Technical Amendment.--Section 408(b)(2)(B)(i) of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1108(b)(2)(B)(i)) is
amended by striking ``this clause'' and inserting ``this
subparagraph''.
(f) Effective Date.--The amendments made by this section shall
apply with respect to plan years beginning with the first plan year
that begins at least 12 months after the date of enactment of this Act.
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