On December 22, 2023, the US District Court for the District of Columbia issued an Order clarifying the scope of its September 2023 Decision which vacated the 2021 NBPP. While the September 2023 Decision vacated the 2021 NBPP it did not state what the governing law was in light of the 2021 NBPP’s revocation. Thus, the Department of Health and Human Services (HHS) requested the Court clarify the current status of the law; and, if HHS was required to enforce the 2020 NBPP which prohibited copay accumulators unless the accumulator was used for a brand name medication that had a medically appropriate generic available. The HIV + Hepatitis Policy Institute, et al., argued that HHS was required to enforce the 2020 NBPP as current law and could not elect to not enforce it.
In the December 2023 Order the Court clarified that the Decision to vacate the 2021 NBPP reinstates the previous rule. In this case, the previous rule is the 2020 NBPP. The Court also held that the August 2019 non-enforcement policy announced by HHS has expired and cannot be used to justify HHS’s non-enforcement of the 2020 NBPP. However, the Court did not address whether HHS could refuse to enforce the 2020 NBPP under a new non-enforcement policy that it announced when filing its Motion to Clarify. The Court reasoned that the issue of non-enforcement was not raised during the initial proceedings, therefore, it was not appropriate for the Court to now consider the question.
This recent Order is consistent with Aimed Alliance’s interpretation of the September 2023 Decision available here. Read the Court’s December 22 Order here.
Last Updated on December 28, 2023 by Aimed Alliance
