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Lawmakers eye lame duck for unfinished business on insulin

Bill would build upon new insulin affordability measure in Medicare by extending it to the commercial market

Sens. Jeanne Shaheen, D-N.H., and Susan Collins, R-Maine, are hoping to push their insulin affordability bill through before the end of the year despite a tight legislative window.
Sens. Jeanne Shaheen, D-N.H., and Susan Collins, R-Maine, are hoping to push their insulin affordability bill through before the end of the year despite a tight legislative window. (Tom Williams/CQ Roll Call file photo)

A bipartisan Senate duo is still working to pass a bill to overhaul insulin prices, but the outlook is complicated by the messy drug pricing system, politics and a busy congressional calendar. 

Sens. Jeanne Shaheen, D-N.H., and Susan Collins, R-Maine, are working to update a draft bill that would cap consumer copays for insulin in the commercial market and incentivize drugmakers to lower list prices. One of the bill’s provisions capping Medicare copays at $35 a month was enacted as part of the Democrats’ budget bill in August.

But the hurdles that previously stalled the bill remain the same. The policy is complicated. The official cost is expensive. And Republican support is thin. 

The bill would extend the $35 Medicare copay cap to the commercial market. It would also ban health plans from requiring doctors’ approval before prescribing a drug and prohibit manufacturer rebates when drugmakers freeze their list prices at 2021 Medicare net rates. Drugmakers negotiate the rebates with health plans and their pharmacy benefit managers — the middlemen who manage a health plan’s drug benefit — in part for preferential coverage, but also say the rebates encourage higher list prices.

The bill’s goal is to lower insulin list prices, which shot up in recent years even though net prices after rebates largely remained flat. Research has shown that the additional profits mostly go to pharmacy benefit managers, pharmacies and wholesalers. 

Limiting pharmacy benefit manager profits, however, is projected to raise both net prices and insurance premiums. The Congressional Budget Office projects the bill would cost $23.3 billion over a decade — a number that Collins has argued doesn’t capture the true savings of keeping diabetic patients healthy and out of the hospital. The bill’s updated price tag will likely be lower since it won’t include the Medicare provision.

Senate Majority Leader Charles E. Schumer has repeatedly voiced plans to bring the bill to the floor since the spring, but the timeline keeps slipping. A vote was most recently expected in September, but Schumer instead pivoted to a bill aimed at increasing transparency in campaign finances. The Senate rejected cloture on that bill earlier this month. 

Bipartisan work is also tough in the wake of the reconciliation fight and ahead of the midterms.

“I don’t think we’re going to see anything now before the elections,” Shaheen said.

“There’s still a need for our bill,” Collins said. “I think our path is more difficult because of Sen. Schumer’s decision — which was contrary to what he told me — to break off parts of the bill and put it in reconciliation.”

Schumer’s office did not respond to requests for comment.

Lame-duck potential

Proponents are hopeful there might be a window for passage during the lame duck, after the election dust has settled and the political pressure has lifted for outgoing lawmakers. Republicans traditionally dislike imposing restrictions in the private market, but a number of red state laws show that insulin is a special case.

But Margarida Jorge, campaign director for the advocacy group Lower Drug Prices Now, said bringing it to the floor before the election would benefit voters.

“I would probably err on the side of having the debate now as opposed to later,” she said. “Because this is one of the issues that is really sharp and really clear in terms of helping voters understand which side of the issue their members are on.”

Jorge still expects that, if the legislation comes to the floor, it will receive a standalone vote instead of hitching a ride on a must-pass spending bill. But a Senate aide said the outlook is dim given Congress’ lengthy to-do list.

Ironically, the Senate plans to use the shell of a House-passed bill capping insulin copays as the vehicle for the short-term spending bill. The bill’s provision capping Medicare copays became law as part of the reconciliation bill, although a cap in commercial plans was ultimately nixed.

Lawmakers are also expected to be gone most of October to campaign after securing the continuing resolution. Before the end of the year, Congress is expected to take up measures to overhaul election procedures, codify same-sex marriage rights, reauthorize the National Defense Authorization Act and negotiate a full government funding bill.

So far, the bill doesn’t appear to have the support needed to pass. Collins is tasked with getting nine more Republicans on board to reach the 60 votes necessary to sidestep a filibuster. High-profile Senate Republicans like Finance Committee ranking member Michael D. Crapo of Idaho; Health, Education, Labor and Pensions ranking member Richard M. Burr of North Carolina; and Judiciary ranking member Charles E. Grassley of Iowa have all voiced concerns with the bill as currently written. 

The bill also must weather the usual industry headwinds. The Pharmaceutical Care Management Association, which represents pharmacy benefit managers, opposes the bill. And the Pharmaceutical Research and Manufacturers of America has not taken a formal stance, but has indicated it doesn’t support the bill because it doesn’t adopt PhRMA’s preferred policy of sharing rebates with patients at the pharmacy counter.

It’s unclear how successful the bill will be in achieving its aims. Critics say the legislation does nothing to require drug companies to lower prices, and point to the expected rise of net prices as proof. But a higher net price would likely still be much more affordable for the uninsured, since the list price can be more than three times higher. 

Both Sanofi and Eli Lilly already offer some products to some patients at $35 a month. The anticipated entry of more biosimilar insulin products is also expected to help drive down prices.

Taken together, the hurdles present an uphill climb for Shaheen and Collins, especially if Republicans retake one or both chambers in the midterms. 

But Democrats still have unfinished business on the issue since the commercial copay cap was dropped during the reconciliation fight. Collins also noted that copay caps don’t address the underlying prices of medication.

“It doesn’t really address the inherent conflicts of interest and the way that insulin gets to consumers,” she said.

Jing Luo, an assistant professor of medicine at the University of Pittsburgh Center for Research on Health Care, said the bill offers a “creative solution” to the pricing problem, but its success will partially depend on the granularity and frequency of the rebate data that the Centers for Medicare and Medicaid Services receives. 

“There are a lot of little steps that probably have to happen before we can make an appropriate determination about whether this act would be successful or not,” he said.

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