PBM Act

It shall be unlawful for any person to both—

(A) directly or indirectly own, operate, control, or direct the operation of the whole or any part of a pharmacy; and

(B) directly or indirectly own, operate, or control the whole or any part of—

(i) an insurance company; or

(ii) a pharmacy benefit manager.

Not later than 3 years after the date of enactment of this Act, any person in violation of paragraph (1) shall divest the pharmacy of such person.

When the Inspector General of the Department of Health and Human Services, the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, the Federal Trade Commission, or an attorney general of a State has reason to believe that a person is in violation of subsection (a), such Inspector General, Assistant Attorney General, Federal Trade Commission or attorney general of a State may bring a civil action in an applicable district court of the United States for the relief described in paragraph (2).

In any action described in paragraph (1), the applicable court, on a finding that a person is in violation of subsection (a), shall issue an order requiring such person—

(A) to cease and desist from such violation, and, if applicable, divest the pharmacy services of such person; and

(B) to disgorge any revenue received from the pharmacy from the sale of prescription drugs during the period of such violation.

In addition to any relief obtained under paragraph (2), the court may grant any other equitable relief necessary to redress and prevent recurrence of the violation.

Any revenue received from the sale of prescription drugs disgorged pursuant to an action under this subsection shall be deposited in a fund created by the Federal Trade Commission and distributed by the Federal Trade Commission to be put to use in the interest of serving the health care needs of the harmed community, including consumers overcharged at vertically integrated pharmacies.

Any divestment of a pharmacy or pharmacy benefit manager required under subsection (a) shall be reported to the Federal Trade Commission and the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice under section 7A of the Clayton Act (15 U.S.C. 18a) without respect to the thresholds under subsection (a)(2) of that section.

The divestment period under subsection (a) shall be tolled during the pendency of any waiting period required under section 7A of the Clayton Act (15 U.S.C. 18a).

With respect to each divestiture undertaken pursuant to subsection (a), in addition to any applicable review under section 7A of the Clayton Act (15 U.S.C. 18a), the Federal Trade Commission and the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice shall review the effect on competition, financial viability, and the public interest—

(A) of the divestiture; and

(B) of the subsequent acquisition of the divested pharmacy by the acquiring person.

The Federal Trade Commission shall promulgate rules to carry out this section. Such rules shall not diminish any obligation under this section.

Nothing in this section shall be construed to limit the authority of the Federal Trade Commission, the Inspector General of the Department of Justice, the Department of Health and Human Services, or the attorney general of a State under any other provision of law.

In this section:

The term health plan means any public or private health insurance plan.

The term person has the meaning given the term in section 8 of the Sherman Act (15 U.S.C. 7).

The term pharmacy means any person, business, or entity licensed, registered, or otherwise permitted by a State or a territory of the United States to dispense, deliver, or distribute a controlled substance, prescription drug, or other medication—

(i) to the general public; or

(ii) to a bed patient for immediate administration.

The term pharmacy includes—

(i) a mail-order pharmacy;

(ii) a specialty pharmacy;

(iii) a retail pharmacy;

(iv) a nursing home pharmacy;

(v) a long-term care pharmacy;

(vi) a hospital pharmacy;

(vii) an infusion or other outpatient treatment pharmacy;

(viii) any organization the National Provider Identifier (NPI) registration of which has 1 or more taxonomy codes under the pharmacy section of the National Uniform Claim Committee (or a subsequent organization); and

(ix) any other type of pharmacy.

The term pharmacy benefit manager means any person, business, or other entity, such as a third-party administrator, regardless of whether such person, business, or entity identifies itself as a pharmacy benefit manager, that, either directly or indirectly through an intermediary (including an affiliate, subsidiary, or agent) or an arrangement with a third party—

(A) acts as a negotiator of prices, rebates, fees, or discounts for prescription drugs on behalf of a health plan or health plan sponsor;

(B) contracts with pharmacies to create pharmacy networks and designs and manages such networks; or

(C) manages or administers the prescription drug benefits provided by a health plan, including the processing and payment of claims for prescription drugs, arranging alternative access to or funding for prescription drugs, the performance of utilization management services, including drug utilization review, the processing of drug prior authorization requests, the adjudication of appeals or grievances related to the prescription drug benefit, contracting with network pharmacies, controlling the cost of covered prescription drugs, or the provision of related services.