On November 2, 2018, the Health Resources and Services Administration (“HRSA”) released a proposed rule to move up to January 1, 2019 the effective date of implementation and enforcement of the previously delayed final rule implementing the 340B Drug Discount Program (“Final Rule”). The Final Rule, which was originally published on January 5, 2017, established the methodology for calculating the 340B ceiling price (including the so-called penny pricing policy) and civil monetary penalties (“CMPs”) for knowing and intentional overcharges of 340B covered entities. (See our original post regarding the Final Rule here.) There were five delays of the effective date of the Final Rule, the most recent of which delayed the effective date until July 1, 2019 (see our post here). However, if the rule is finalized, the implementation date and the effective date would both be January 1, 2019. The proposed rule requests comments on the new effective date by November 23, 2018.
In its most recent decision to delay the effective date, HRSA attributed the need for the delay to the fact that the government was developing comprehensive policies “to address the rising costs of prescription drugs . . . in government programs, such as Medicare Parts B & D, Medicaid, and the 340B Program.” 83 Fed. Reg. 25943, 25944 (June 5, 2018). In explaining the decision to now move up the effective date, HRSA stated that the Department of Health and Human Services (“HHS”) “has determined that the finalization of the 340B ceiling price and civil monetary penalty rule will not interfere with the Department’s development of these comprehensive policies. Accordingly, the Department no longer believes a delay in the effective date is necessary and is proposing to change the effective date of the rule from July 1, 2019, to January 1, 2019.” 83 Fed. Reg. 55135 (Nov. 2, 2018).
HHS’s decision to advance the effective date of the Final Rule was likely influenced by a lawsuit filed on September 11, 2018 by the American Hospital Association (“AHA”) and other organizations. See American Hospital Association et al. v. the Department of Health and Human Services et al., Case 1:18-cv-02112 (D.C.D.C. 2018). The plaintiffs allege that HRSA’s repeated delays in finalizing the Final Rule are arbitrary and capricious and constitute unreasonably delayed agency action under the Administrative Procedure Act. Plaintiffs request injunctive relief to require HHS to make the Final Rule effective within 30 days after judgment on the suit. On October 15, 2018, HHS moved to stay the suit on the basis that it intended to propose advancing the effective date to January 1, 2019. However, on November 2, 2018, the Court issued an order declining to stay the case, reasoning that HHS cannot guarantee that the proposed new January 1 effective date will be finalized, nor is it certain that, even if it is finalized, it will become final by that date. Order at 3. If the Final Rule does become effective on January 1, 2019, as proposed, the lawsuit will likely be withdrawn or dismissed. However, for now, the parties have been ordered to brief the case.