Trump, senators push for drug price disclosures despite setbacks

Trump, senators push for drug price disclosures despite setbacks
© Greg Nash

 President TrumpDonald John TrumpLawmakers prep ahead of impeachment hearing Democrats gear up for high-stakes Judiciary hearing Warren says she made almost M from legal work over past three decades MORE and senators from both parties are not giving up the fight over forcing drug companies to disclose list prices in TV ads.

Both the White House and Congress are searching for an easy political win on drug prices, but so far have found little success.

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The disclosure rule was one of Trump’s highest-profile initiatives and the first policy released after the administration unveiled its drug pricing “blueprint” in 2018.

Under the rule, drug manufacturers would have been required to state the list price of a 30-day supply of any drug that is covered through Medicare and Medicaid and costs at least $35 a month.

Experts and advocates don’t believe the rule would have been very effective at lowering drug prices. Even so, it represented one of the boldest actions the administration took in its quest to lower the cost of prescription drugs.

“The disclosure of drug list prices in direct-to-consumer television ads is an appropriate step to increase price transparency for patients. We have not, however, seen any evidence that it will lower drug prices,” said Ben Wakana, executive director of the advocacy group Patients for Affordable Drugs.

Pharmaceutical companies opposed the rule from the start. They argued the policy would confuse consumers because a drug’s list price — which doesn’t reflect the discounts negotiated with insurers or through patient assistance programs — is often higher than what the patient actually pays.

The administration was dealt a blow in July when a federal judge sided with a coalition of three drug companies and advertisers and blocked the Trump administration from implementing the policy, just hours before it was set to take effect.

U.S. District Judge Amit P. Mehta in Washington, D.C., an Obama appointee, ruled the Department of Health and Human Services (HHS) did not have the authority to compel drug companies to disclose prices.

The administration is appealing, and a hearing on the appeal is scheduled for mid-January. But some senators don’t want to wait and have been pushing for a quick floor vote.

Sen. Dick DurbinRichard (Dick) Joseph DurbinSupreme Court poised to hear first major gun case in a decade Protecting the future of student data privacy: The time to act is now Overnight Health Care: Crunch time for Congress on surprise medical bills | CDC confirms 47 vaping-related deaths | Massachusetts passes flavored tobacco, vaping products ban MORE (D-Ill.) has been pushing to win unanimous consent to pass legislation he co-sponsored with Senate Finance Committee Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyOvernight Health Care — Presented by Johnson & Johnson – House progressives may try to block vote on Pelosi drug bill | McConnell, Grassley at odds over Trump-backed drug pricing bill | Lawmakers close to deal on surprise medical bills GOP senators request interview with former DNC contractor to probe possible Ukraine ties Congressional leaders unite to fight for better future for America's children and families MORE (R-Iowa) that would implement the rule.

“I believe that the American people should know what the drugs cost,” Durbin said in a speech on the Senate floor last week.

But Sen. Pat ToomeyPatrick (Pat) Joseph ToomeyNSA improperly collected US phone records in October, new documents show Overnight Defense: Pick for South Korean envoy splits with Trump on nuclear threat | McCain blasts move to suspend Korean military exercises | White House defends Trump salute of North Korean general WH backpedals on Trump's 'due process' remark on guns MORE (R-Pa.) objected to that measure, saying that the legislation would provide seniors with misleading information. He said seniors might be scared off from even discussing an important drug with a doctor because of the high list price shown on the ad.

Toomey also echoed other critics of the idea who argue its only purpose is to shame drug companies. Toomey said the bill would “vilify” the pharmaceutical industry, even as they work to manufacture lifesaving drugs.

But Durbin said drug companies are the ones who decide what the list price is, so they should be required to disclose it. 

“Let’s not stand in defense of pharmaceutical companies,” Durbin shot back at Toomey. “They’ve got plenty of people to defend them.”

In announcing the final rule earlier this year, HHS Secretary Alex Azar addressed criticism that the rule is only intended to shame drugmakers, arguing that there’s no reason patients should be kept in the dark about the full prices of the products they’re being sold.

“Patients have a right to know, and if you’re ashamed of your drug prices, change your drug prices. It’s that simple,” Azar said.

Supporters of the measure, like Wakana, say some people do have to pay the list price, such as the uninsured or people with high-deductible plans, but they are the ones most affected by high drug costs.

“List price is relevant. And patients can use that information as a starting point for discussions with their physician, pharmacist or their health plan to understand better what their payment will be,” Wakana said.

Toomey urged Durbin to introduce the bill as an amendment to a spending bill, so it could have a proper floor debate. It’s unclear whether Durbin and Grassley will do so.

Ian Spatz, a senior adviser at Manatt Health who represents industry clients, said it’s easy to see why some lawmakers would want to act.

“This is one of the low-hanging pieces of political fruit of the drug pricing debate. There’s public support, and Trump supports it, so it makes sense that [Durbin] continues to press for a victory,” Spatz said.

Spatz added that even if Congress does pass price disclosure as a law, the drug companies may still challenge it on First Amendment grounds. He said there are other bills that Congress is moving forward with that will have a more significant impact on prices.

Trump has made lowering drug prices a top priority of his presidency, and the court decision leaves him with few drug pricing accomplishments to point to heading into the 2020 presidential election.

Lawmakers are similarly trying to pass meaningful legislation. House leaders intend to vote on Speaker Nancy PelosiNancy PelosiDemocrats gear up for high-stakes Judiciary hearing White House, Democrats strike tentative deal to create Space Force in exchange for federal parental leave benefits: report Trump: Fox News 'panders' to Democrats by having on liberal guests MORE’s (D-Calif.) signature drug pricing bill, which would allow Medicare to negotiate drug prices, when Congress returns from the Thanksgiving recess.

That bill is expected to pass the House on a party-line basis before dying in the GOP-controlled Senate. Despite months of talks between Pelosi and the White House, Trump does not support the bill, and Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellKey House and Senate health leaders reach deal to stop surprise medical bills Biden: 'No party should have too much power' Overnight Energy: Pelosi vows bold action to counter 'existential' climate threat | Trump jokes new light bulbs don't make him look as good | 'Forever chemicals' measure pulled from defense bill MORE (R-Ky) has denounced the bill as “socialist.”

McConnell has also declined to support a more modest, bipartisan bill from Grassley and Senate Finance Committee ranking member Ron WydenRonald (Ron) Lee WydenOvernight Health Care — Presented by Johnson & Johnson – House progressives may try to block vote on Pelosi drug bill | McConnell, Grassley at odds over Trump-backed drug pricing bill | Lawmakers close to deal on surprise medical bills Congressional leaders unite to fight for better future for America's children and families McConnell, Grassley at odds over Trump-backed drug bill MORE (D-Ore.). The legislation cleared the Finance Committee over the summer largely with the support of Democrats, and Grassley is trying to build support among his Republican colleagues for the measure.

He has argued if Congress and the president are serious about tackling drug costs, his legislation is much more preferable to Pelosi’s. But many Republican senators object to a provision in that bill that would force drug companies to pay the money back to Medicare if their prices rose faster than inflation.