National Coalition Urges HHS to Enforce Rule Requiring Issuers to Count Copay Assistance for Patients  

US District Court Strikes Rule That Permitted Harmful Practices by Insurers and PBMs

WASHINGTON, DC – October 6, 2023 — Today, 86 members of the All Copays Count Coalition sent a letter urging the Department of Health and Human Services (HHS) and the Department of Labor (DOL) to enforce a rule requiring insurers and pharmacy benefit managers (PBMs) to count copay assistance toward their enrollees’ annual deductible and total out-of-pocket costs. The letter follows a US District Court for the District of Columbia decision issued this week vacating a Trump-era regulation that allowed commercial market insurers and PBMs to take advantage of copay assistance provided to patients with serious, chronic conditions. In the letter, the groups asked HHS to honor the court’s decision and uphold the patient protections guaranteed in the Affordable Care Act (ACA).

The lawsuit against HHS challenged a provision of the 2021 Notice of Benefit and Payment Parameters (NBPP), arguing that it violated the ACA definition of cost-sharing, and that the rule was arbitrary and capricious. The disputed provision permitted health insurers and PBMs to decide whether to count copay assistance payments that they collected on behalf of enrollees toward those enrollee’s annual deductible and out-of-pocket costs or not. The judge for the US District Court vacated the 2021 NBPP provision on the grounds that definition of cost-sharing was not consistent as it left it up to issuers to decide. The 2021 NBPP provision had reversed a 2020 rule that required insurers and PBMs to count those payments for enrollees, with limited exceptions. The All Copays Count Coalition members are asking HHS to quickly clarify that they will now enforce the 2020 rule.

“We think this decision will be a big win for patients,” said Anna Hyde, Vice President of Advocacy and Access at the Arthritis Foundation. “But HHS must act quickly to answer questions about what this ruling means and to ensure that insurers and PBMs do the right thing by ending the practice of so-called ‘copay accumulator adjustment policies’.”

Since 2018 the ALL Copays Count Coalition has worked tirelessly advocating on behalf of patients with serious, chronic conditions, to ensure they can afford their life-saving medicines. In recent years health insurance costs have risen so drastically that many people with chronic illness struggle to meet their high deductibles and cover their coinsurance payments, putting them in grave danger physically and financially. Copay assistance has been a lifeline, keeping patients and their families from having to choose between buying groceries and paying rent or getting their medicines.

Rachel Klein, Deputy Executive Director of The AIDS Institute, said, “Insurers and PBMs should not be diverting funds intended to help patients living with serious chronic illness toward their own bottom lines. These policies target the most vulnerable people in our communities. Insurers are profiting while patients are suffering.”

The All Copays Count Coalition members’ request to HHS would align federal regulations with laws enacted in 19 states, DC and Puerto Rico to ensure that insurers and PBMs count copay assistance payments made on behalf of enrollees toward their annual deductible and out-of-pocket limit. The regulation also aligns with federal legislation supported by the All Copays Count Coalition, called the HELP Copays Act of 2023. The bipartisan HELP Copays Act was introduced in the House by Representatives Buddy Carter (R-GA) and Nanette Barragan (D-CA), and currently has 95 cosponsors. The bill was also introduced in the Senate by Senators Roger Marshall (R-KS) and Tim Kaine (D-VA), and now has 16 cosponsors.

The Biden Administration has prioritized making health care more affordable and accessible for vulnerable Americans. The Coalition urges the Administration and HHS officials to follow the Court’s decision and align federal policy with those commitments.

About the All Copays Count Coalition

The All Copays Count Coalition (ACCC) is comprised of members serving the interests of beneficiaries with chronic and serious health conditions that rely on copay assistance in various forms to make medically necessary drug treatments affordable. The coalition provides information about the harmful effects of pricing schemes, known as “copay accumulators and maximizers,” on access to prescription drugs for people with chronic and serious health conditions.

Media Contact: info@allcopayscount.org