First State lawmakers passed a bill at the end of their session prohibiting pharmacist “gag clauses.”
Pharmacy Benefits Managers (PBMs), third-party administrators of prescription drug programs for health insurance plans, sometimes forbid pharmacists from telling customers about cheaper therapeutic alternatives, or disclosing when a drug might be cheaper when paid for out-of-pocket, rather than through insurance.
“With the ‘gag clause’ they cannot tell you, if you don’t go through your insurance, this is $7 cheaper, this is $10 cheaper. They just tell you what it costs, and you pay. … I feel like it’s against the consumer,” said State Rep. Andria Bennett, who sponsored Delaware’s anti-gag clause bill.
It passed the General Assembly late last month with unanimous support.
Laws prohibiting these so-called “gag clauses” have been enacted in nearly half the states in the union, according to the National Conference of State Legislatures.
Kevin Musto is a past president of the Delaware Pharmacists Society, which he says supported the bill. He also owns Atlantic Apothecary, an independent pharmacy in Smyrna, and says he’s known some of his customers for decades.
“And there are times when they have to make decisions on whether they’re going to buy their medication or food or use that money for their mortgage or whatever,” he said. “Pharmacists see that everyday.”
He says the “gag clauses” in his contracts with PBMs feel like a barrier to helping customers.
“It makes me feel dirty. It’s like I’m charging them something that— I’m like, aw, that could be so much less expensive!” he said.
A representative of Express Scripts, a PBM that operates in Delaware, said the company fully supports the bill, and that they do not use gag clauses in their contracts with pharmacies.
PhRMA, a lobbying group for pharmaceutical companies, also supports anti-gag clause laws.
“A recent study showed that patients overpay for their prescriptions 23 percent of the time because their copay can be more expensive than the full cost of their medicine. Reports show that middlemen are using unfair schemes that often keep patients from knowing that this is happening. Delaware and 39 other states have introduced common sense legislation to prohibit these schemes, empower patients to be more informed consumers and help lower out-of-pocket costs at the pharmacy counter. We support those efforts,” a PhRMA spokesperson said in a statement.
The bill awaits the Governor’s signature.