CMS Proposed Rule Ignores Data & Bipartisan Support for the Value of Copay Assistance Programs

By NCL Director of Health Policy Jeanette Contreras

Americans love getting a discount. As consumers, we like to shop to save without compromising the quality of the products we buy. But in healthcare, the stakes are higher at the checkout counter. Patients not only want a discount, they depend on it to afford necessary, sometimes lifesaving, medication to treat their health condition.

Despite what we know about the value and impact of copay assistance programs, a new policy from the Centers for Medicare & Medicaid Services (CMS) could put a barrier between these critical programs and the patients who need them most.

Manufacturer copay assistance programs include discounts, coupon cards, and vouchers which many of our friends, family members, and neighbors use to afford their prescriptions. Studies have shown that without these financial support systems, many patients couldn’t afford their medicines.

The CMS proposal, which has yet to be finalized, would require manufacturers to guarantee that this assistance goes directly to patients—and if manufacturers do not, they would be required to include the value of the copay assistance in Medicaid Best Price and Average Manufacturer Price (AMP) calculations. That would be fine but there’s a  problem.

CMS has a separate policy that was already finalized earlier this year: the Notice of Benefit and Payment Parameters (NBPP) Rule for 2021. In part, the NBPP allows health insurance companies and pharmacy benefit managers (PBMs) to use policies that stop copay assistance from counting towards a patient’s out-of-pocket burden—sometimes called copay accumulator adjustment programs.

NCL criticized HHS for permitting health plans to use these so-called copay accumulator adjustment programs.

“Removing this cost-sharing assistance will force those patients to pay thousands of dollars more in unexpected costs at the pharmacy. These new costs could push some to forego those medications, leading to worsened health outcomes. This could compromise medication adherence and will lead to increased health care costs over time.” – NCL Executive Director Sally Greenberg

Separate studies conducted by the Centers for Disease Control and Prevention (CDC) and IQVIA show that out-of-pocket costs can contribute substantially to reduced adherence or to patients not taking their medication altogether. This is counterproductive because if patients do not take their meds as directed, it means higher costs in other parts of the healthcare system stemming from increased hospitalizations, ER visits, and long-term health issues.

If the data doesn’t convince CMS, voters should. Weeks before the presidential election, we can clearly see widespread support for the value of copay assistance regardless of political affiliation. According to a new National Hemophilia Foundation national survey, more than 80 percent of registered voters believe the government should require copay assistance to be applied to patients’ out-of-pocket costs. Even lawmakers agree that CMS should stop this policy before it launches. A bipartisan group of 36 members of the U.S. House of Representatives sent a letter to CMS urging the agency to not finalize the “contentious line extension section or the Medicaid best price change as currently defined in the notice of proposed rulemaking.”

Clearly, copay assistance is critical to Americans. We hope CMS reevaluates the potentially harmful consequences of this new rule on patients and pulls back this counterproductive proposal.

National Consumers League Expresses Concern Over Amy Coney Barrett Confirmation

Media contact: National Consumers League – Carol McKay, carolm@nclnet.org, (412) 945-3242 or Taun Sterling, tauns@nclnet.org, (202) 207-2832

Washington, DC – The next three weeks will be critical for the American people. Amid a global pandemic, a historic presidential election, and the attempt to fill an equally historic Supreme Court vacancy, there’s a lot at stake for health care. On October 26, the Senate will vote on Judge Amy Coney Barrett’s nomination to succeed the late Justice Ruth Bader Ginsburg on the US Supreme Court. On November 10, merely a week following the presidential election, the Supreme Court of the United States (SCOTUS) hear arguments in the case of California v. Texas, the latest challenge to Patient Protection and Affordable Care Act (ACA), more commonly called Obamacare.

The rush to fill Justice Ginsburg’s seat on the Court on the eve of this election has worried health advocates and consumers alike, as a conservative majority court could potentially overturn the ACA. Conservatives have been hostile to the law, and Coney Barrett, herself an arch-conservative, seems to share that very hostility toward the ACA. This is illustrated by her disapproval of Justice John Roberts Jr.’s support of the ACA in a 2017 essay. In it, Coney Barrett wrote that Justice Roberts had “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

In 2017, the strife between Democrats and conservatives worsened when the individual mandate provision of the ACA was found unconstitutional. Following that ruling, conservatives have tried to grasp at opportunities to repeal the entire law, including arguing for severability. Severability of the individual mandate provision, as explained by Justice Roberts, would allow the Court to excise the provision with “a scalpel rather than a bulldozer.” Severability would still maintain the ACA as the law of the land and would save access to healthcare for over 20 million Americans. But the plaintiffs, all Republican Attorneys General from across the country, have argued that the individual mandate cannot be severed and if it goes down, the whole law falls.

Although Coney Barrett was reticent during the Senate Judiciary Committee hearings, her record serves as a warning about how she will come down on a host of consumer health issues. These include reproductive decisions granting women agency over their bodies and the freedom to choose how they form families. Based on her prior endorsement of the anti-choice organization Right to Life and her public support of overturning Roe v Wade, there is cause for concern that medical interventions like contraception, abortion, and even in-vitro fertilization (IVF), could all be at risk following Judge Barrett’s appointment to the high court.

Aside from reproductive issues, there are countless health care protections on the chopping block pursuant to the ACA deliberation. Below are a few at risk if the ACA is overturned:

The stakes are high. If the ACA is overturned, COVID-19 could be considered to be a pre-existing condition. The pandemic has laid bare deep structural inequities; stripping away coverage during such dire times would be unconscionable.

There are a few ways the Supreme Court could rule on the case come November 10.

  • If Coney Barrett is not sworn in before the oral argument, the Court could vote on the case with an 8-member court, leading to a potential tie. If tied, the case would be returned to the original trial judge for further analysis – meaning that in the interim, the ACA would remain the law of the land, ensuring protections for millions.
  • The Court may still rule in favor of salvaging the ACA. Many scholars deem the plaintiffs’ arguments to be legally weak. This is where the argument of severability comes in.
  • Finally, if a new justice is appointed to the Court and there is a majority vote to overturn the ACA, it may be overturned. The ACA is an extraordinarily complex and comprehensive law, and this result would wreak havoc across virtually every area of health policy.

Over the next few weeks, the health and civil liberties of millions of Americans will hang in the balance. NCL does not support Judge Amy Coney Barrett’s nomination. Justice Ginsburg was a champion of rights and protections for consumers and women and a strong defender of the ACA. Confirming a justice for the Supreme Court with Coney Barrett’s record before the election has the potential to endanger lives already vulnerable during this pandemic. We simply cannot afford to throw consumers’ health care into such chaos and uncertainly during this COVID-19 pandemic.

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About the National Consumers League (NCL)

The National Consumers League, founded in 1899, is America’s pioneer consumer organization. Our mission is to protect and promote social and economic justice for consumers and workers in the United States and abroad. For more information, visit www.nclnet.org.

New report: COVID-19 pandemic highlights need for White House Consumer Advocacy Office

Media contact: National Consumers League – Carol McKay, carolm@nclnet.org, (412) 945-3242 or Taun Sterling, tauns@nclnet.org, (202) 207-2832

Washington, DC – The protection of consumers during the COVID-19 pandemic and beyond will require the next Administration to reestablish the White House Office of Consumer Affairs (WHOCA). The National Consumers League is calling for the restoration of the WHOCA to elevate the interests of consumers to the highest levels of government, including access to the Oval Office. For decades, WHOCA gave consumers a voice within the Administration and coordinated consumer protection activities across the U.S. government. Such leadership will be sorely needed to rebuild consumers’ confidence in the government’s ability to protect them from industry abuses.

In a new report, COVID-19 and the Impact on Consumers, the National Consumers League examines how consumers have been harmed by price gouging, fraud targeting stimulus checks, anti-worker practices, and a sharp dip in confidence in testing and vaccines since the COVID-19 pandemic began. The report also highlights legislation from the 116th Congress that advanced consumers’ interest and should be at the top of policymakers’ agendas next year.

“The COVID-19 pandemic has thrown into stark relief the impact of years of hollowing-out of our nation’s consumer protection agencies,” said NCL Executive Director Sally Greenberg. “With this report, we hope to shine a light of consumer protection policies that should be embraced over the next four years, regardless of which party comes out ahead in November.”

Issues covered in the report include:

  • Price gouging and profiteering – Congress should act to rein in price gouging on personal protective equipment. Refunds for cancelled or postponed flights and live events should be required to be provided quickly to consumers.
  • Scams targeting stimulus funds – An estimated $8 billion in unemployment insurance funds have been lost to scammers since the beginning of the COVID crisis. Many millions more in stimulus checks and other COVID relief may have also been diverted. In any future stimulus legislation, Congress must act to ensure that a second wave of scams targeting such relief funds do not deprive consumers of desperately needed support.
  • Restoring confidence in COVID-related health care – NCL has strongly urged public health agencies to increase and enhance infrastructure regarding vaccine confidence and has called for effective public messaging and strong vaccine recommendations to ensure that the American public feels safe, informed, and empowered in their decisions to vaccinate once a COVID-19 vaccine becomes available.
  • Protecting essential workers – Workers on the front lines of the COVID-19 crisis must receive the personal protective equipment they need to do their jobs safely. They must also be given pandemic premium pay to compensate them for the increased risks they bear keeping our economy functioning during this challenging time. They should also not be barred from seeking justice by overly broad liability protections that some in Congress to seek to attach to future stimulus bills.
  • Accountability for taxpayer funds – Money intended to support struggling small business payrolls should not go to support the super-wealthy. Bailouts targeted at specific industries like the airlines should not be diverted to unrelated purposes, such as lobbying.

To read the full report, click here.

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About the National Consumers League (NCL)

The National Consumers League, founded in 1899, is America’s pioneer consumer organization. Our mission is to protect and promote social and economic justice for consumers and workers in the United States and abroad. For more information, visit www.nclnet.org.
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Facebook’s banning of Holocaust denial content is a win for consumers

Facebook’s banning of Holocaust denial content is a win for consumers

October 13, 2020

Media contact: National Consumers League – Carol McKay, carolm@nclnet.org, (412) 945-3242 or Taun Sterling, tauns@nclnet.org, (202) 207-2832

Washington, DC – The decision by Facebook to ban Holocaust denial content from the platform is a welcome, if belated, move by the social media giant, according to the National Consumers League. The action, which comes after significant criticism by civil and human rights organizations, will help make Facebook a safer platform for all users, said the League.

The following statement is attributable to National Consumers League Executive Director Sally Greenberg:

“For far too long, Holocaust denial content was allowed to flourish on Facebook, a platform which reaches billions of users. We appreciate the statements from the company and its leaders, including Mark Zuckerberg, that they personally find such content abhorrent. However, words can only do so much without action to address the problem. Banning Holocaust denial content from Facebook will help create a safer and more welcoming platform for all consumers.

It will be a challenge for Facebook to enforce this ban at scale. We expect that the purveyors of hate will continually look for ways to get around the ban. That is why we will continue to work with the company to ensure that this ban has real teeth, so that consumers can be confident that they and their families will not be subjected to such hateful content.”

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About the National Consumers League (NCL)

The National Consumers League, founded in 1899, is America’s pioneer consumer organization. Our mission is to protect and promote social and economic justice for consumers and workers in the United States and abroad. For more information, visit www.nclnet.org.