The U.S. District Court for the District of Columbia has vacated the Notice of Benefits and Payment Parameters (NBPP) rule issued in May 2020 (2020 NBPP Rule) which allowed health insurers and pharmacy benefit managers to use copay accumulators to exclude drug manufacturers’ copay assistance when calculating patients’ out-of-pocket costs and cost-sharing ceilings under the Affordable Care Act (ACA).
Much of the discussion on this issue centered around the value and impact of copay assistance and not on the impact of the accumulator programs, Carl Schmid, executive director of the HIV+Hepatitis Policy Institute, said in an interview. “The judge said that based on plain reading of the ACA statute, copay assistance should count toward a deductible because it is payment made for or on behalf of a patient,” Schmid said.
In a significant development with far-reaching implications for health plans and pharmacy benefit managers (PBMs), Justice John D. Bates of the U.S. District Court for the District of Columbia has recently struck down a federal rule that allowed health plans to use copay accumulator programs to exclude drug manufacturer copayment (Copay) assistance from a patient’s out-of-pocket costs. This ruling has significant implications for the way health plans and PBMs operate and interact with patients and copay assistance programs.
On September 29, 2023, the U.S. District Court for the District of Columbia vacated the 2021 Notice of Benefit and Payment Parameters (“2021 NBPP”) amendments to Affordable Care Act regulations. The amendments permitted (but did not require) plans and issuers to count direct support offered by drug manufacturers for prescription drugs toward the Affordable Care Act’s annual cost-sharing limit (“MOOP”). HIV and Hepatitis Policy Inst. et al. v. U.S. Dep’t of Health and Hum. Svcs., No. 22-2604, 2023 WL 6388932 (D.D.C. Sept. 29, 2023). The court invalidated the 2021 NBPP regulations because the court concluded that the 2021 NBPP’s interpretation of “cost sharing” conflicts with the statutory and regulation definition of “cost sharing” under the ACA.
“People rely on copay assistance to afford their medications because of high deductibles and high co-insurance,” Carl Schmid, executive director of the HIV+Hepatitis Policy Institute, one of the organizations that sued the federal government over the issue, told the Deseret News. “Yeah, we want lower drug prices. But we also want copay assistance to help us be able to afford the drugs.” At issue were so-called “copay accumulator” rules that let insurance companies take the drug company’s assistance without using it to provide financial relief to the person for whom the medication was prescribed. “What we litigated was a rule that said plans can decide themselves if copay assistance counts or not. That’s what we fought and what we won,” Schmid said.