IN THE SENATE OF THE UNITED STATES
March 10 (legislative day, March 7), 2022
Mrs. Capito (for herself and Mrs. Shaheen) introduced the following bill; which was read twice and referred to the Committee on Finance
To amend titles XVIII and XIX of the Social Security Act to provide for coverage of prescription digital therapeutics under such titles, and for other purposes.
This Act may be cited as the
Access to Prescription Digital Therapeutics Act of 2022.
Coverage and payment of prescription digital therapeutics under the Medicare program
Prescription digital therapeutic defined
Section 1861 of the Social Security Act (42 U.S.C. 1395x) is amended by adding at the end the following new subsection:
Prescription digital therapeutic
The term prescription digital therapeutic means a product, device, internet application, or other technology that—
is cleared or approved under section 510(k), 513(f)(2), or 515 of the Federal Food, Drug, and Cosmetic Act;
has a cleared or approved indication for the prevention, management, or treatment of a medical disease, condition, or disorder;
primarily uses software to achieve its intended result; and
is a device that is exempt from section 502(f)(1) of the Federal Food, Drug, and Cosmetic Act under section 801.109 of title 21 of the Code of Federal Regulations (or any successor regulation).
Coverage as medical and other health service
Section 1861(s)(2) of the Social Security Act (42 U.S.C. 1395x(s)(2)) is amended—
in subparagraph (GG), by striking
and at the end;
in subparagraph (HH), by striking the period at the end and inserting
; and; and
by adding at the end the following new subparagraph:
prescription digital therapeutics furnished on or after January 1, 2023;
Requirements for prescription digital therapeutics under Medicare
Part B of the Social Security Act (42 U.S.C. 1395j et seq.) is amended by inserting after section 1834A the following new section:
Requirements for prescription digital therapeutics
Not later than 1 year after the date of enactment of this section, the Secretary shall establish a payment methodology for manufacturers of prescription digital therapeutics, which may consist of a one-time payment or periodic payments, as determined appropriate by the Secretary.
Considerations for payment methodology
For purposes of establishing the payment methodology under paragraph (1), the Secretary shall consider—
the actual list charge of such prescription digital therapeutic;
the weighted median (calculated by arraying the distribution of all payment rates reported for the most recent period for which such rates were reported under subsection (c)(1) for each prescription digital therapeutic weighted by volume for each payor and each manufacturer) for such prescription digital therapeutic;
in the case of a prescription digital therapeutic that requires ongoing use, the amount for such ongoing use; and
other factors as determined by the Secretary.
Not later than 2 years after the date of enactment of this section, the Secretary shall establish product-specific HCPCS codes for prescription digital therapeutic covered under this title.
The Secretary shall adopt temporary product-specific HCPCS codes for purposes of providing payment under this title until a permanent product-specific HCPCS code has been established under paragraph (1).
Beginning on January 1, 2023, each manufacturer of a prescription digital therapeutic covered under this title shall submit to the Secretary, at such time and in such manner as specified by the Secretary, and annually thereafter, a report describing—
the payment rate that was paid by each private payor for each prescription digital therapeutic during the period specified by the Secretary;
the volume of such prescription digital therapeutic distributed to each such payor for such period; and
the number of individual users of such prescription digital therapeutic for such period.
Treatment of discounts
The payment rate reported by a manufacturer in accordance with paragraph (1)(A) shall reflect all discounts, rebates, coupons, and other price concessions, including those described in section 1847A(c)(3).
Civil monetary penalty
If the Secretary determines that a manufacturer has failed to report, or made a misrepresentation or omission in reporting, information under this subsection with respect to a prescription digital therapeutic, the Secretary may apply a civil money penalty in an amount of up to $10,000 per day for each failure to report or each such misrepresentation or omission.
The provisions of section 1128A (other than subsections (a) and (b)) shall apply to a civil money penalty under this paragraph in the same manner as they apply to a civil money penalty or proceeding under section 1128A(a).
Information reported under this subsection shall be treated in the same manner in which information disclosed by a manufacturer or a wholesaler of a covered outpatient drug is treated under section 1927(b)(3)(D).
For purposes of this section:
Actual list charge
actual list charge means the publicly available payment rate for a prescription digital therapeutic on the first day that such prescription digital therapeutic is available for purchase by a private payor.
The term HCPCS means, with respect to an item, the code under the Healthcare Common Procedure Coding System (HCPCS) (or a successor code) for such item.
The term manufacturer has the meaning given such term by section 820.3(o) of title 21, Code of Federal Regulations (or any successor regulation).
Prescription digital therapeutic
prescription digital therapeutic has the meaning given such term in section 1861(lll).
private payor has the meaning given such term in section 1834A(a)(8).
Coverage of prescription digital therapeutics under the Medicaid program
Section 1905(a) of the Social Security Act (42 U.S.C. 1396d(a)) is amended—
in paragraph (30), by striking
; and and inserting a semicolon;
by redesignating paragraph (31) as paragraph (32); and
by inserting the following paragraph after paragraph (30):
prescription digital therapeutics (as defined in section 1861(lll)); and