S3330-118

1. Study on fiduciary duties of pharmacy benefit managers Not later than 2 years after the date of enactment of this Act, the Secretary of Labor shall conduct, and submit to Congress a report describing the results of, a study on the impacts of a change in policy described in subsection (b). Under a policy referred to in subsection (a)— an entity providing pharmacy benefit management services would be considered a fiduciary within the meaning of section 3(21) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1002(21)) with respect to a group health plan or group health insurance coverage; such an entity would— be subject to the responsibilities, obligations, and duties imposed on fiduciaries under part 4 of subtitle B of title I of such Act (29 U.S.C. 1101 et seq.); and make the required fiduciary disclosure under section 408(b)(2)(B)(iii) of such Act (29 U.S.C. 1108(b)(2)(B)(iii)) with respect to the pharmacy benefit management services provided to the plan or coverage; nothing would be construed to prohibit entities providing pharmacy benefits management services from retaining bona fide service fees in accordance with the requirements of section 408(b)(2) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1108(b)(2)); and bona fide service fees would be per se unreasonable for purposes of this section and such section if such fees are— based on drug price (such as wholesale acquisition cost) or drug benchmark price (such as average wholesale price); discounts, rebates, fees, or other remuneration with respect to prescription drugs prescribed to participants or beneficiaries in the plan or coverage; or otherwise determined by the Secretary to be unreasonable. In this section: The term bona fide service fees means fees paid by a manufacturer, customer, or client (other than a group health plan or health insurance issuer) of an entity providing pharmacy benefit management services, to an entity providing pharmacy benefit management services, that represent fair-market value for bona fide, itemized services actually performed on behalf of the manufacturer, customer, or client and that the manufacturer, customer, or client would otherwise perform or contract for in the absence of the service arrangement, and that are not passed on in whole or in part to a client or customer of an entity, whether or not the entity takes possession of the drug. The term wholesale acquisition cost has the meaning given such term in section 1847A(c)(6)(B) of the Social Security Act (42 U.S.C. 1395w–3a(c)(6)(B)).