2020 Drug Coupon Rule Under Further Rulemaking

The U.S. Department of Health and Human Services (“HHS”) released final regulations relating to benefit and payment parameters for 2020. The regulations state that beginning on or after January 2020, plans and insurers do not have to count the value of drug manufacturers’ coupons toward the annual cost-sharing limits when a medically appropriate generic equivalent is available.

Thereafter, it was pointed out by various stakeholders that the provision potentially conflicts with determining whether a high deductible health plan (“HDHP”) has met its minimum deductible. The provision can be read to imply that in circumstances where a generic equivalent is not available, the value of these coupons must be counted toward the annual cost-sharing limits. Such implication would create a conflict with the rule that HDHPs must disregard drug discounts and only consider amounts actually paid by the individual to determine whether the minimum deductible has been satisfied.

The Department of Labor (“DOL”), Treasury, and HHS (collectively, the “Departments”) jointly prepared an FAQ acknowledging this confusion, and intend to “undertake rulemaking in the forthcoming HHS Notice of Benefit and Payment Parameters for 2021.” Before the 2021 Notice goes into effect, the Departments confirm no enforcement action will be taken against an issuer or plan that excludes the value of drug manufacturers’ coupons from annual cost-sharing limits when no generic equivalent is available. In addition, the FAQs explain that States may adopt a similar enforcement policy without fear of a possible enforcement action.

The information and content contained in this blog post are for general informational purposes only, and does not, and is not intended to, constitute legal advice.