Rx Plans May Exclude Value of Drug Manufacturers’ Coupons Until Further Notice

The DOL, HHS, and IRS have jointly issued an FAQ addressing whether health plans must count drug manufacturers’ coupons toward the annual cost-sharing limits under the Affordable Care Act (ACA). (Note: these limits apply to non-grandfathered group health plans, including self-insured and insured small and large group market health plans.) Regulations that announced the 2020 benefit and payment parameters (including the maximum annual cost-sharing limits) provided that, for plan years beginning on or after January 1, 2020, plans and insurers need not count the value of drug manufacturers’ coupons toward the annual cost-sharing limits when a medically appropriate generic equivalent is available. Please see our May 9, 2019 post about the 2020 limits here.
After the regulations were released, stakeholders pointed out that this provision implies that, in any other circumstances, plans and insurers must count such coupon amounts toward the annual cost-sharing limits, and that such a requirement could create a conflict with certain rules for high deductible health plans (HDHPs) that are intended to allow eligible individuals to establish HSAs.
Explaining that, for purposes of determining whether the HDHP minimum deductible has been satisfied, HDHPs must disregard drug discounts and other manufacturers’ and providers’ discounts and may only take into account amounts actually paid by the individual, the FAQ acknowledges that HDHP insurers or sponsors may be unable to comply with both rules simultaneously. The agencies intend to address this conflict in the regulations that announce the 2021 benefit and payment parameters. Until such regulations are effective, the agencies will not initiate an enforcement action if an insurer or plan excludes the value of drug manufacturers’ coupons from the annual cost-sharing limits, including when no medically appropriate generic equivalent is available.
The rule announced in the 2020 benefit and payment parameters was intended to discourage providers and patients from choosing expensive brand-name drugs when a less expensive and equally effective alternative is available. HHS also proposed other rules designed to encourage the use of generic drugs but did not include them in the final parameters, noting their complexity and administrative burden. It will be interesting to see what direction the agencies take when the 2021 benefit and payment parameters are proposed, including how they reconcile any conflicting rules such as the one addressed in this FAQ.
Links:

• CMS/HHS/DOL ACA FAQ Part 40, August 26, 2019
• May 9, 2019: HHS 2020 Benefit Limits and Updates