October Legislative Update
Kelly Vyzral, Director of Government Affairs
It's October and that means the legislature is back to business for two months before their holiday break and the start of "the silly season," better known as campaign season.
HB 66: Budget Bill
We have already seen several issues of importance to pharmacists race to the forefront; the most important being the Medicaid reimbursement cut that was passed in the HB 66, the Budget Bill. Your Medicaid reimbursement for product cost fell from WAC + 9% to WAC + 7% effective on October 1, 2005. The new co-payment requirement is scheduled to become effective on January 1, 2006. The structure is as follows:
- $3.00 co-payment for non-PDL drugs;
- $2.00 on branded drugs on the PDL;
- no co-payment for generic drugs on the PDL.
Once the legislature passes a bill, it is up to the individual agencies to write rules to implement the new law. After the rules are written, they are publicly posted, given a public hearing, and are heard by JCARR (Joint Commission on Agency Rule Review). On September 12, 2005, the Ohio Pharmacists Association testified before JCARR against the reimbursement cut, arguing not only that it was not the legislature's intent to cause economic harm to pharmacies and to cause pharmacy shortages in high Medicaid service areas, but that it was an unconstitutional control of our prices. While individual members of JCARR understood and agreed that we are indeed facing a serious problem, they did not feel that we had met the burden of proof and the committee recommended passage of the Medicaid reimbursement reduction.
Sub. S.B. 53: Pseudoephedrine Sales
Currently the bill requires that:
all single ingredient products be placed behind a retail counter; exempts gel caps, liquids and pediatrics;
consumer must be 18-years-old to purchase the product;
sales are restricted to 9 grams per consumer per 30-day period unless accompanied by a prescription;
retailer must maintain a log and ask for I.D.;
retailer must check that the name in the log book corresponds with the name on a government-issued identification card;
log book must be retained for a minimum of two years after the date of the last purchase recorded in the log book;
retailer must post, in a conspicuous location, the following statement: "Ohio law prohibits the over-the-counter purchase of more than nine grams of pseudoephedrine within a 30-day period. If you purchase a product containing pseudoephedrine, you are required to sign a log book that may be accessible to law enforcement officers."
The log must be made available to law enforcement; however, the law enforcement official must ask for it.
A violation of this law is the offense of "unlawfully selling a pseudoephedrine product," a misdemeanor of the first degree "on a first offense" and a felony of the fifth degree on each subsequent offense.
We have met with the sponsor of the bill, Sen. John Carey, as well as the chairman of the Senate Judiciary, Criminal Justice Committee, Sen. Jim Jordan, and made several suggestions that we feel will make the bill better legislation, while at the same time making it easier and less costly for pharmacists to comply.
Ohio law should pre-empt any existing or future local ordinances concerning the sale of pseudo-ephedrine.
Retailers who implement approved training programs for their employees in regard to methamphetamine production and abuse should be given "safe harbor" or provided with an affirmative defense against prosecution.
We are also calling for the removal of the felony offense against retailers, because a felony offense could cause a pharmacist to lose his license to practice pharmacy.
If retailers are to be required to keep logs, they should be permitted to maintain electronic logs as opposed to paper logs. Retailers should be able to decide whether they want to keep electronic or paper logs based on their technological capabilities.
Additionally, retailers should not have to maintain the logs for two years. A much shorter time frame, such as six months, would be more appropriate.
S.B. 154: P.A. Prescribing
Sponsored by Sen. Lynn Wachtmann, this bill was introduced in June. This bill would give physician assistants (P.A.) physician-delegated prescriptive authority. This bill was introduced last General Assembly as well, but died in committee. The sponsor and interested parties made changes in the formulary, and added more stringent educational requirements to shore up support for this bill. OPA is opposing this bill because of a provision that allows advanced practice nurses (APNs) to provide complete or partial supplies of drugs and therapeutic devices on their formulary directly to patients. The bill also lifts restrictions on the locations where the supplies may be furnished, and specifies that the supplies are to be provided only when pharmacy services are not reasonably available, when it is in the best interest of the patient, or when it is an emergency.
Ohio Best Rx program
The prescription drug discount program for the uninsured has thus far failed to meet expectations. Only 34,000 persons have signed up for the program since January, compared with the 100,000 which supporters had anticipated, so lawmakers are considering expanding the program. The Coalition for Affordable Prescription Drugs has proposed a three-prong approach to expand the program.
Increase enrollees by:
a. increasing the income threshold from 250% to 300% of the federal poverty level. Such a change would mean a family of four making up to $58,068 a year could qualify for the discounts, making an additional 101,000 persons eligible to participate;
b. covering otherwise eligible people whose only insurance coverage for drugs is workers' compensation, as well as individuals who are temporarily or permanently discharged due to business downsizing, "rightsizing," relocations or other management decisions;
c. permitting Medicare beneficiaries to use Best Rx for drugs that are not covered or discounted by their Medicare plan;
d. permitting ODJFS to develop certification systems to enable online and telephone enrollment processes.
Increase the potential benefits to enrollees by:
a. permitting ODJFS to establish a process for referring eligible Best Rx enrollees to patient assistance programs operated by participating manufacturers, which may provide free prescriptions for some drugs;
b. requiring the full amount of manufacturer rebates to be passed on to Best Rx enrollees, instead of retaining a portion to pay the state's administrative costs.
Modify financing to meet federal criteria for exclusion from Medicaid restrictions
a. State programs that meet federal criteria for exclusion from Medicaid financial requirements generally have obtained better discounts from manufacturers. One criterion for exclusion relates to the state's contribution. The proposed amendment to Best Rx assures an ongoing state contribution of administrative funds.
OPA opposes the expansion of the income threshold for the Best Rx program. As we predicted from the beginning, the market is saturated with discount programs, several providing better discounts than Best Rx. Also as predicted, pharmacies have provided an overwhelming majority of the savings that the program has provided. Since the program's inception, pharmacies have provided $1.648 million, while brand name manufacturers, who were a major force behind not only this program but now the expansion of the program, have provided a meager $147,000. We will continue to fight expansion of this program on the grounds that it is unnecessary and that the program unfairly sits on the shoulders of pharmacists, and will do so to an even greater extent if it is expanded.
If you have any questions or comments, contact Kelly Vyzral, Director of Government Affairs, at 614.586.1497 or email@example.com.
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