In 2022-2023, more than 20 states proposed legislation to reign in White Bagging and/or Site of Service policies.[1] These policies, which have been steadily increasing over the past few years, encompass more payors and medications. Notably, Florida[2] is the latest state to enact legislation to limit White Bagging, joining Arkansas, Louisiana, Virginia, Utah, Minnesota and Tennessee. The patchwork of state legislative activity is directed to very varied provisions and is supplemented with a few state Board of Pharmacy rules (although, for the most part the Pharmacy Boards have been reluctant to intervene). Some of the key provisions in the White Bagging laws include: prohibitions on refusal to authorize; approve or pay or reimburse at a lesser amount; freedom of choice – prohibition on steering; prohibition on coverage/benefit limitations such as higher patient co-pays, co-insurance or penalty; Drug Supply Chain Security Act[3] requirements; prohibition on dispensing in other than ready-to-administer dosages (otherwise wholesaling); identification of White Bagging as redispensing; and medical necessity criteria for site selection.
There have been several proposals for compromise as the divide between payors on one side and provider practices and hospitals on the other intensifies. Some suggestions include: replacement of White Bagging with a fee schedule to eliminate buy-and-bill incentives; devise emergency reimbursement mechanisms for same-day treatment changes; cap medication markup through legislation; share cost savings with patients; and require payment parity between PBM-affiliated/owned specialty pharmacy and buy-and-bill.[4] Such compromise efforts hold the potential to lower medication costs while leading to improved patient care.
How Frier Levitt Can Help
The prevalence of mandatory White Bagging policies among large payors has become increasingly apparent. Fortunately, options exist for hospital-based infusion centers and physician practices that have been negatively impacted by these policies. Contact us and speak to an attorney for strategic advice and advocacy as your practice or health system navigates the nuances of White Bagging. Frier Levitt has extensive experience working through these issues and drafting state legislation. Your practice or health system can benefit from our proficiency in addressing these challenges.
[1] Site of Service refers to requiring patients to receive treatment at specific locations, e.g. a clinician’s office outside of a hospital setting, a stand-alone infusion center, or via home infusion.
[2] FL Stat Ch 2023-29. Prescription Drug Reform Act.
[3] 21 U.S.C. §360eee, et seq.
[4] Pearson C, Schapiro L, Pearson SD. Institute for Clinical & Economic Review. White Bagging, Brown Bagging and Point of Care Policies: Best Practices in Addressing Provider Markup in the Commercial Insurance Market. April 2023. https://icer.org/wp-content/uploads/2023/04/ICER-White-Paper-_-White-Bagging-Brown-Bagging-and-Site-of-Service-Policies.pdf.
