Bill Introduced to Restore Ability to Buy OTC Meds with Flex Spending

Senator Pat Roberts (R, KS), Sen. Ben Nelson (D, NE), Congresswoman Lynn Jenkins (R, KS) and Congresswoman Shelley Berkley (D, NV) introduced bipartisan legislation on July 14 that would repeal a portion of the new health care reform law that prohibits people from using their medical savings account funds from buying over-the-counter (OTC) medications.

“This prohibition takes away choice and flexibility from individuals about how to manage their health care expenses and adds yet another burden to physicians,” said Roberts. “Rather than promoting cost-effectiveness and accessibility, this provision directs people to potentially more costly, less convenient, and more time-consuming alternatives.”

Jenkins said, “Health care reform should be about increasing, not limiting, personal options and accessibility. Medical savings accounts encourage personal ownership of one’s health care by giving individuals control over health care decisions and how to pay for that care. I am proud to help champion this bipartisan, bicameral bill in the House and hope our chamber will move quickly on this commonsense fix.”

The legislation would repeal section 9003 of the Patient Protection and Affordable Care Act (PPACA), restoring the ability of those participating in a medical savings account, such as a Flexible Savings Account (FSA), or other similar type of medical savings account, to use the funds to purchase OTC medications.

Under current law, plan participants may no longer use funds from these accounts to purchase OTC medications, unless they have a prescription for the medication. In Kansas, and throughout the U.S., a broad coalition of groups support this legislation, including the National Federation of Independent Business, the US Chamber, pharmacist groups, drug store organizations and consumer groups.

The National Community Pharmacists Association (NCPA) announced its support for the legislation, noting that an estimated 35 million Americans rely on voluntary contributions of pre-tax dollars to FSAs and HSAs for their basic health care needs. Readily available OTC drugs are often used by patients before more costly physician office visits and treatments, especially during cold and flu season.

“I have had patients complain about not being able to utilize their accounts for OTC products,” said Brian Caswell, PD, vice president of NCPA and owner of Wolkar Drug in Baxter Springs, Kansas. “I support this legislation because it will allow my patients to use their tax-preferred accounts on the OTC products they need at our independent pharmacy--without a prescription.”

Nearly 50 million Americans participate in FSAs and other health savings accounts that enable them to set aside their own funds each year on a pre-tax basis to pay for health care expenses such as co-payments and other costs not covered by insurance, prescriptions, or OTC medications.

"My patients shouldn't have to call a doctor every time they want to purchase an OTC product under their tax preferred account," said Eric Hamik, RPh, of U Save Pharmacy in Kearney, Nebraska. "I've also had several physicians tell me they are tiring of having to write prescriptions for OTC products. I am very supportive of this legislation which returns the control of the transaction back to the patient where it belongs."

The NCPA is urging Congress to pass the legislation "as quickly as possible."