Massachusetts "All Payor" Anti-Kickback Statute Amended to Not Prohibit Certain Drug and Biologic Coupons and Discount Programs .

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On July 8, 2012, Massachusetts Governor Deval Patrick signed into law the fiscal year 2013 state budget (“Budget”), which included, among other things, amendments to the Massachusetts “all-payor” anti-kickback statute—Mass. Gen. Laws ch. 175H §3 (“Massachusetts Anti-Kickback Statute” or “Statute”). The Massachusetts Anti- Kickback Statute generally prohibits the solicitation of, and improper inducements for the use of, goods, facilities, services, or products for which payment is or may be made, in whole or in part, by a health care insurer. The changes effectuated by the Budget may have significant implications for pharmaceutical coupons/discount programs. The Budget included an exception to the Statute for certain coupons. Specifically, the following language was added to the Statute:

[The Massachusetts Anti-Kickback Statute] shall not apply to any discount or free product vouchers that a retail pharmacy provides to a consumer in connection with a pharmacy service, item or prescription transfer offer or to any discount, rebate, product voucher or other reduction in an individual’s out-of-pocket expenses, including co-payments and deductibles, on [any biologic product or prescription drug] that is made available to an individual if the discount, rebate, product voucher or other reduction is provided directly or electronically to the individual or through a point of sale or mail-in rebate, or through similar means; provided, however, that a pharmaceutical manufacturing company shall not exclude or favor any pharmacy in the redemption of such discount, rebate, product voucher or other expense reduction offer to a consumer.

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