Accumulator, Maximizer Regulation Picks up at the State Level

December 12, 2020
Peter Wehrwein

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Briana Contreras

The five states have moved to prohibit accumulators and maximizers as the federal government takes a hands-off approach, according to John “Jack” S. Linehan, a lawyer at Epstein Becker Green, who is featured in this second part of a two-part video series.

With the federal government backing out of regulating coupon accumulators and maximizers, some states have moved ahead with laws that block health plans and PBMs from using them, according to John “Jack” S. Linehan, a lawyer at Epstein Becker Green.

Laws have passed in Arizona, Georgia, Illinois, Virginia and West Virginia that say any payment made by a beneficiary or on the beneficiary’s behalf must count toward a policy’s deductible or out-of-pocket limits, Linehan explained in a video interview with Managed Healthcare Executive®. Laws and regulations that would curb accumulators and maximizers in some way is under consideration in 20 other states, Linehan said.

Related: Coupon Accumulators and Coupon Maximizers, Explained

Drug manufacturers issue coupons to cover patient out-of-pocket costs, so they are saving patients money and for patients. Health plans and PBMS say coupons undercut their efforts to manage costs and steer physicians and patients to make cost-effective choices. So in the past several years, health plans and PBMs have pushed back against the coupons with accumulators, which keep the value of the coupon from applying toward the deductible. But as a result, some patients are caught unawares when the value of the coupon runs out, and they suddenly have out-of-pocket costs and their full deductible looming of them.

Maximizers are a wrinkle on accumulators that even out the value of the coupon across the year.

Health plans and PBMs argue that the use of accumulators and maximizers is justified as a way to enforce legitimate cost-sharing obligations that can offset the cost impacts of the coupons and promote more economical drug selection by physicians and patients.

Related: New state copay accumulator laws complicate the coupon compliance landscape

Linehan said the state laws are similar to one another, but there are some subtle differences; for example, some apply only to drugs paid for through the pharmacy benefit while others cover drugs paid for through both the pharmacy and the medical benefit. In addition, he noted that any state laws that touch on accumulators and maximizers apply to fully insured plans, not to self-insured plans because ERISA (Employment Retirement Income Security Act) exempts self-insured plans from state regulation.

How accumulators and maximizers will fare under the Biden administration is hard to predict, says Linehan.

“There really are tradeoffs on both sides of the issue. It is a more complicated, niche area, which makes it even harder to speculate about what is going to happen.”

Linehan also discussed the rule that CMS proposed in June that would affect how coupons are treated under Medicaid best-price rules. In essence, if the proposed rule were to go into effect, accumulators would increase the amount in rebates manufacturers pay under Medicaid best-price rules. Manufacturers may pull back on patient assistance if this rule were to go into effect, said Linehan. Alternatively, they could “take the financial hit” by deciding presumptively that accumulators have been applied to their coupons.