Drug Pricing Legislation In Doubt After COVID-19 Relief Bill

Law360 (March 26, 2020, 8:19 PM EDT) -- Health policy experts say a consequence of the coronavirus relief bill speeding through Congress may be to delay action on drug pricing legislation even though it's a priority for leaders in both parties during this election year.

The sprawling $2 trillion relief package — which the House is expected to approve Friday after unanimous Senate passage on Wednesday — contains provisions that extend through Nov. 30 certain Medicare programs that were set to expire May 22. The impending deadline was viewed as the best opportunity to act on prescription drug costs for seniors.

The postponement eliminates a natural opportunity in a body often driven by deadlines, Ropes & Gray LLP partner Thomas N. Bulleit told Law360 in an email Thursday.

"I'd say the odds of action this year, never that high, have dropped even lower," said Bulleit, who represents clients across the health care industry. "COVID-19 is sucking all of the oxygen out of Capitol Hill, and other legislative priorities will struggle for attention this year," he said. "That is especially true of meaningful congressional action on drug pricing, since the expected vehicle for that was the Medicare extenders. Because the extenders were included in the Phase 3 legislation that passed the Senate and that the House is expected to pass tomorrow, that vehicle is now gone until November."

That means that any additional action on Medicare extenders and any action at all on drug pricing might wait until the lame-duck session after the Nov. 3 election, which gives a short window to work on a limited number of bills.

What's more, Senate Majority Leader Mitch McConnell, R-Ky., has not shown interest in allowing a vote on the deal negotiated by Finance Committee Chairman Chuck Grassley, R-Iowa, and the panel's top Democrat, Sen. Ron Wyden of Oregon. Unveiled in July and opposed by the pharmaceutical lobby, it includes inflationary rebates and a $3,100 out-of-pocket cap for seniors. Some Republicans view inflationary rebates as price controls, and McConnell generally avoids holding votes that will divide his party.

President Donald Trump has backed that bill and urged its passage in his State of the Union address last month. Although the House passed a Democratic bill in December with government-negotiated prices and shot down a more limited Republican alternative, Bulleit said the Senate bill is "the only viable option with bipartisan support."

Meredith Freed, a health policy analyst at the Kaiser Family Foundation, agreed that the loss of a looming deadline "could make it less likely that Congress will take action on prescription drug costs before the election." However, she listed reasons for optimism in an email to Law360 on Thursday.

"If we see more legislative vehicles for economic stimulus, those could provide Congress with other avenues to push the prescription drug agenda forward," Freed said. "Depending on how long the [coronavirus] crisis continues, the rising cost of prescription drugs may once again become an important election issue, which could help build momentum to pass legislation prior to the election. And because this crisis will likely hurt a lot of people’s pocketbooks, particularly Medicare beneficiaries’ — many of whom live on fixed incomes — I would not rule out the potential for this to be a legislative priority in the fall."

Even if nothing happens before the election, supporters of the deal might see the lame-duck session as a unique opportunity, with lawmakers less concerned about attack ads from opponents. A source involved in health care advocacy suggested that partisan tension may dissipate after the election and that outgoing legislators might see a drug pricing measure as a way to leave a positive legacy.

And, of course, the deal doesn't have to be part of the Medicare extenders, a Grassley spokesman pointed out.

"Congress can pass a bill anytime it wants. Having available vehicles makes it easier but doesn't prevent anything from happening," spokesman Michael Zona said in a statement.

"The coronavirus crisis shows why now more than ever seniors need to be able to afford the prescription drugs they rely on to survive," he added. "We're confident that going forward, prescription drug pricing and surprise billing legislation will be priorities for President Trump and Congress."

Grassley himself highlighted the bipartisan interest in drug pricing in an abbreviation-rich tweet Thursday wishing a happy birthday to House Speaker Nancy Pelosi, D-Calif.

"We often disagree but I admire your commitment 2public service &willingness to wrk w me on issues like USMCA+lowering Rx drug prices Cooperation btwn us is what itll take to get drug prices lowered," the 86-year-old senator tweeted with his usual social media syntax.

--Editing by Janice Carter Brown.

For a reprint of this article, please contact reprints@law360.com.

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