Three More States Bar Accumulator Adjustment Programs

Foley Hoag LLP - Drug Pricing Policy Watch

Three additional states enacted legislation in recent weeks barring the “accumulator adjustment program” cost sharing framework. Accumulator adjustment programs seek to reverse the impact of manufacturer cost sharing assistance for prescription drugs by not counting amounts offset by such assistance toward a patient’s deductible. This can result in high patient out-of-pocket responsibilities after the manufacturer’s cost sharing assistance has been exhausted. For this reason, both drug manufacturers and patient advocates have sought to bar accumulator adjustment programs on both the federal and state levels.

A slew of southern states have prohibited accumulator adjustment programs in roughly the last month. Most recently, on April 27, Arkansas Governor Asa Hutchinson signed HB 1569. This legislation, which takes effect January 1, 2022, requires an insurer or PBM to include any cost-sharing amounts paid by the enrollee or on behalf of the enrollee by another person toward any applicable cost sharing requirement. The Arkansas law applies to all items and services, though it does include an exception for name-brand drugs that are not considered to be medically necessary by the prescriber and have a medically appropriate generic equivalent.

Barely a week before, on April 19, Governor Kevin Stitt also signed an anti-accumulator adjustment program law in Oklahoma. This legislation, HB 2678, makes it an unfair insurance claims settlement practice for an insurer that offers pharmacy benefits or a PBM to fail to include any amount paid by or on behalf of an enrollee by another person when calculating the enrollee’s contribution to a cost sharing requirement. HB 2678, which takes effect November 1, 2021, will apply to all drugs, with or without generic equivalents.

A few weeks earlier, Governor Andy Beshear of Kentucky signed SB 45 on March 25. SB 45, which takes effect January 1, 2022, only prohibits accumulator adjustment programs for drugs that lack generic alternatives or where the enrollee has obtained access to the branded drug through prior authorization, step therapy, or the exceptions process.

Arkansas, Oklahoma, and Kentucky make eight states that have enacted legislation barring accumulator adjustment programs. They join Arizona, Georgia, Illinois, Virginia, and West Virginia, as well as Puerto Rico. Similar anti-accumulator adjustment program bills are currently pending in many states across the country, with a bill in Tennessee currently before the Governor.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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