Senators urge HHS to drop appeal of drug 'copay accumulator' court ruling

A bipartisan group of senators is encouraging the U.S. Department of Health and Human Services to reconsider its appeal of a federal district court decision limiting the use of copay accumulators. Insurers use the programs to prevent drug copay assistance from counting toward patients’ deductibles or out-of-pocket maximums.

Last fall, Judge John D. Bates of the U.S. District Court for the District of Columbia overturned a 2021 rule that allowed the use of copay accumulators. The decision, which came as a result of patient advocacy groups challenging the Trump administration rule, said payers now will be able to use the programs only for brand-name medications that have generic equivalents. HHS, along with the Centers for Medicare & Medicaid Services, appealed the decision in December.

Nineteen senators, including Sens. Thom Tillis (R-NC), Chris Van Hollen (D-MD) and Kirsten Gillibrand (D-NY), expressed their concern in a letter to HHS Secretary Xavier Becerra. The letter pointed out that patient cost-sharing protections allow Americans to have more predictability and certainty when planning for their maximum out-of-pocket drug expenses. When patients know they can afford their medication, their adherence tends to improve, the senators noted.

“We are disappointed in HHS’ decision to file a notice of appeal of the decision and HHS’ articulated intention to not take any enforcement action against health insurance issuers or health plans that fail to count copay assistance toward the patient’s maximum annual limitation on cost-sharing,” the letter said.

The senators went on to say that health plans use copay accumulators not only to help control costs but also as a “profit-seeking tactic.” They pointed out that when the rule went into effect and allowed payers to use copay accumulators without limitation, the use of these programs increased dramatically. The letter referenced a 2023 finding that nearly two-thirds of individual health plans available on the ACA marketplace had implemented copay accumulators. It also cited a report estimating that of all commercial markets in 2021, 43% of covered lives were in commercial health plans that used copay accumulators.

“As a result of this policy change, patients in our home states suffered, facing financial hardship and barriers to their once-accessible lifesaving medicine,” the senators wrote. “In many cases, patients or their family members found out about the [copay accumulator] not counting their assistance at the pharmacy counter. They were left embarrassed, anxious and without recourse.”

Related: Copay accumulator lawsuit aims to reduce costs to patients

The letter concluded by saying that Congress is considering taking action on its own.

“We also strongly believe that federal legislative action is also needed to restore this vital patient protection,” it said. “In fact, Congress is currently working on a bipartisan, bicameral basis to advance legislation to ensure copay assistance counts toward the patient’s maximum annual limitation on cost sharing.”