19 Senators Urge HHS to Drop Appeal That Would Jeopardize Americans’ Access to Life-Saving Drugs

A bipartisan group of senators sent a letter to HHS asking it to rethink its appeal of a recent federal district court decision that limits the use of “copay accumulators” — which are programs insurers use to prevent medication copay assistance from counting toward patients’ deductibles or out-of-pocket maximums.

A bipartisan group of 19 U.S. senators sent a letter to HHS asking it to rethink its appeal of a recent federal district court decision that limits the use of “copay accumulators.”

Copay accumulators are programs health plans use to prevent copay assistance from counting toward patients’ deductibles or out-of-pocket maximums. Typically, when patients receive copay assistance from pharmaceutical companies, the amount paid by the manufacturer helps reduce the patient’s out-of-pocket costs. But with copay accumulators, the assistance from the drugmaker is not counted toward the patient’s maximum limit on out-of-pocket expenses.

In September, Judge John D. Bates of the U.S. District Court for the District of Columbia overturned a 2021 rule that allowed the use of copay accumulators. The decision — which came as a result of patient advocacy groups challenging the Trump administration rule — said that payers will now only be able to use the programs for brand-name medications that have generic equivalents.

HHS, along with CMS, appealed the decision in November. The senators’ letter — which was released this week but dated December 20 — urged HHS to drop the appeal to ensure Americans receive cost-sharing protections for their expensive medications.

“We are disappointed in HHS’ decision to file a notice of appeal of the decision and HHS’ articulated intention to not take any enforcement action against health insurance issuers or health plans that fail to count copay assistance toward the patient’s maximum annual limitation on cost-sharing,” the senators wrote.

The letter pointed out that patient cost-sharing protections allow Americans to have more predictability and certainty when planning for their maximum out-of-pocket drug expenses. When patients know they can afford their medication, their adherence tends to improve, the senators noted. 

The lawmakers cited a study showing that reduced cost-sharing for cardiovascular drugs has been proven to boost adherence and decrease the risk of adverse vascular events and the associated medical costs.

The senators went on to argue that health plans use copay accumulators not only to help control costs, but also as a “profit-seeking tactic.” They pointed out that when the 2021 rule went into effect and allowed payers to use copay accumulators without limitation, the use of these programs increased dramatically.

The letter referenced a February report showing that nearly two-thirds of individual health plans available on the ACA marketplace had implemented copay accumulators. It also cited a report estimating that of all commercial markets in 2021, 43% of covered lives were in commercial health plans that used copay accumulators.

“As a result of this policy change, patients in our home states suffered, facing financial hardship and barriers to their once-accessible life-saving medicine. In many cases, patients or their family members found out about the [copay accumulator] not counting their assistance at the pharmacy counter. They were left embarrassed, anxious and without recourse,” the senators wrote.

Up to 36% of patients choose to stop taking their medication when they are faced with charges totaling more than $1,500 as a result of copay accumulators, according to a study referenced in the letter.

One of the nation’s biggest health insurers, Blue Cross Blue Shield Association, responded to the senators’ letter with the following statement, which was emailed to MedCity News.

“Everyone deserves access to high-quality and affordable care — including affordable prescription drugs. Big Pharma games the system at the expense of patients, which drives up costs for everyone. That’s why it’s critical for health plans to use effective tools to address their soaring drug prices. We will continue to work with Congress and administration to make premiums more affordable and align on solutions that lower the cost of prescription drug prices,” the payer wrote.

Photo: cagkansayin, Getty Images