Substance Use-Disorder Prevention That Promotes Opioid Recovery and Treatment for Patients and Communities Act

Floor Speech

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Mr. LEE. Mr. President, Americans know all too well the crippling costs of healthcare in our country today. On top of the daily struggles of ordinary families to put food on the table, skyrocketing costs of prescription drugs are getting harder and harder to meet.

Pharmacist gag rules are only making matters worse for the American people--much worse. These contract clauses between pharmacies, on the one hand, and insurers and pharmacy benefit managers, on the other, prevent pharmacists from telling customers that they can actually save money on prescriptions by paying with cash instead of using their insurance. Pharmacists are actually prohibited under these clauses from helping their customers to get the best price for their medications. This is absurd, and it is harmful.

According to a recent study, about 23 percent of all drug claims in 2013 involved overpayment, amounting to more than $135 million. Who pockets those extra dollars? It is not ordinary Americans. It is, of course, the insurers and the benefit managers--in other words, the pharma middlemen, you might say.

We all agree that this is a problem. It is only further evidence of our broken drug pricing system that is unnecessarily hurting the American people. We all agree this is a problem that needs to be fixed. What we must consider is how best to address the problem, who is best equipped to do so, and whether and to what extent some of it has already been fixed.

Senator Collins' bill mandates that gag clauses be prohibited under all health insurance plans, including individual and group plans that are currently administered by the States pursuant to State law.

The Federal Government can and should prohibit gag clauses within the plans it administers and within those plans it oversees, but it cannot and should not intervene in plans that it does not.

Many States already have made some significant progress on this issue. In fact, 26 States have already passed laws banning gag rules, and another 11 States are currently in the process of trying to pass them. I applaud them, and we ought to leave space for them to do that very thing.

Some have suggested that this State action and increased attention to the cost of prescription drugs has more or less solved this problem and greatly limited the use of gag clauses already. Bear in mind that the study that I previously referenced looked at practices from 5 years ago. The States were more directly involved because they had more directly witnessed this problem, and they were able to nimbly and quite capably address it.

However, even if gag clauses are still in use, where they are, we must recognize that it is not always the role of the Federal Government to regulate everything. It is not the role of the Federal Government to regulate entities under the jurisdiction of the States. However well intentioned, when Congress oversteps its authority like this, we can end up doing more harm than good. We also end up undermining the very oath we took to uphold the Constitution, which has as a structural foundation the principle that not all power is invested in Congress. Only those powers given to the Congress are vested here. Those that are not vested under the Constitution in the Federal Government are reserved to the States, respectfully, or to the people.

The amendment I am offering would narrow this bill to what I believe would be its proper scope. Instead of the bill applying to all health plans, my amendment would limit its application to only self-insured groups plans that are exempt from State regulation. This would close a loophole where States are unable to provide Americans additional transparency surrounding the cost of their prescription drugs.

Again, while I very much support the overall goal of the underlying bill and applaud my friend and colleague from Maine, Senator Collins, we have to remember that it is neither the role nor the duty nor within the power of the Federal Government to regulate all aspects of commercial activity within the United States or all aspects of the lives of the American people.

The way to help ordinary American citizens with high drug costs is not to further concentrate power within Washington, DC. The Federal Government's intervention in healthcare has already caused huge distortions in the market for which Americans pay a steeper price every single year.

If we truly want to protect the American people from abuses like gag rules, we should fight to preserve federalism and our vision of our Constitution so that States are empowered to directly and efficiently protect their citizens from the injustices they face.

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