October 26, 2020

Volume X, Number 300


October 23, 2020

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New California Law Aims to Increase PBM Disclosure and Transparency

Employers looking for greater transparency on prescription drug pricing and pharmacy benefit manager (PBM) services will soon have a powerful new tool from an unlikely source: California lawmakers.

Under Assembly Bill (AB) 315, signed into law by Governor Jerry Brown late in September of 2018, employers should have access to more information from PBMs regarding drug costs and economic ties between PBMs and both pharmacies and pharmaceutical manufacturers. Employers may be able to use this information to negotiate better prices with PBMs or to otherwise control plan costs. The relevant provisions of AB 315 take effect with respect to PBM contracts entered into or renewed on or after January 1, 2019. Employers will be able to request the information to PBMs quarterly.   

The statute defines a “pharmacy benefit manager” as an entity that provides services to state-licensed insurers and health plans, but gives rights to “purchasers” of PBM services. Those purchasers include health benefit plan sponsors and other third-party payers.

To get access to the eight types of information outlined in the statute, employers will have to make requests and execute written confidentiality agreements. Absent a written confidentiality agreement, PBMs are only required to provide certain prescription drug utilization information upon request. Additionally, PBMs may not impose any kind of premium or charge, or offer any incentive to deter an employer from requesting this data.

AB 315 lists eight types of information to which health plan sponsors will now have access. Among them are:

  • Aggregate rebates received by a PBM by therapeutic category of drugs (including any utilization discounts received from a manufacturer or labeler)

  • Any administrative fees received from a manufacturer or labeler

  • Aggregate payments made or other equivalent economic benefit offered by a PBM to pharmacies that the PBM owns or controls

These disclosure requirements apply to retail, mail order, specialty, and compound prescription products.

Another interesting provision in AB 315 requires PBMs to notify their employer customers of any conflicts of interest the PBM has that will interfere with its responsibility to exercise good faith and fair dealing. Absent regulatory guidance, the “good faith and fair dealing” standard is ambiguous, which could result in little, if any, reporting by PBMs to employers in this regard.

We anticipate that regulations will help clarify the conflict of interest terms and whether any limitations apply to these PBM disclosure rules based on the location of an employer, its employees, or the drug claims.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VIII, Number 292



About this Author

Timothy Stanton, Ogletree Daikins Law Firm, Data Privacy and Employment Attorney

Tim Stanton is an energetic advocate for and trusted advisor to inside counsel and benefits and HR executives.

His clients include: retailers and wholesalers; insurance, banking and financial services firms; and food companies and manufacturers, as well as colleges and universities.

Tim actively counsels clients on the roller coaster ride that is national health care reform, as well as on ERISA fiduciary duties, health information privacy and security, retiree medical age discrimination, and consumer-directed health...

Christopher C. Guthrie, Ogletree Deakins Law Firm, Atlanta, Labor and Employment Law Attorney

Mr. Guthrie joined Ogletree in 2017 as an Associate in the Employee Benefits Practice Group.  He focuses his practice on qualified and non-qualified retirement plans, ERISA compliance, executive compensation arrangements, health and welfare plans, and taxation.

While in law school, Mr. Guthrie served as President of the GSU Moot Court Board for the 2016 – 2017 academic year and was a student advocate in the Philip C. Cook Low-Income Taxpayer Clinic, where he received the Ginny and Kelly Smith Tax Clinic Fellowship for three semesters and the J.B. Moore Award from the Atlanta Bar Association – Tax Section for exceptional client service while working in the Clinic.