On July 8, 2012, Massachusetts Governor Deval Patrick signed into law H.4200, which makes appropriations for the state’s fiscal year 2013 budget, and which revises the state’s Health Care False Claims Act (M.G.L. c. 175H, s. 3) to now permit pharmaceutical manufacturers to offer drug coupons to Massachusetts residents. The revisions, which relax Massachusetts’ strict prohibition on offering or paying any remuneration in cash or in-kind to induce any person to purchase, order, or arrange for or recommend the purchase or order of any good or item for which payment is or may be made by any health care insurer (not just government funded health care programs, like Medicare and Medicaid), take effect immediately.
Specifically, sections 128 through 130 of H.4200 provide that Massachusetts’ stringent kickback prohibition does 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: (i) any biological product . . . , or (ii) any prescription drug provided by a pharmaceutical manufacturing company . . . , 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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