Virginia and West Virginia became the first states to ban an insurer practice that prevents drug manufacturer coupons and copay assistance from counting against a plan's deductible or out-of-pocket limit, and patient advocates believe more states are going to follow suit.
So far another eight states are considering passing their own laws to ban copay accumulator programs.
Insurers have increasingly turned to copay accumulators since 2018 to combat coupons and copay assistance cards given out by drug manufacturers to patients. But patient groups have pushed back against the tactic, calling it deceptive.
"The problem about copay accumulators is that they are hidden in the plan policies and the patients don't know about it," said Carl Schmid, deputy executive director of the patient advocacy group the AIDS Institute. "They are stuck with higher cost sharing because of the higher deductibles."
The insitute is one of the patient advocacy groups lobbying states to ban or limit the use of accumulators.
The group Patients Rising Now is also pushing for state measures, saying in a release earlier this year that the accumulators are a "a discriminatory practice that limits access to needed medicines."
But the state laws only apply to insurance plans sold on the state-regulated individual market and not commercial plans, which would require an act of Congress. Last year Sen. Elizabeth Warren, D-Mass., introduced a bill to cap prescription drug copays to $250 per month, but that bill died in the last Congress.
Schmid though is optimistic Congress could step in because "everyone is interested in addressing the high cost of drugs."
"You can look at the underlying price of the drug, but there still is the benefit design and the high cost sharing and Democrats and Republicans are still interested in that," he said.
The AIDS Institute also implored the CMS to address copay assistance in the notice of benefit and payment parameters for Affordable Care Act exchange plans. The group wants copay assistance to count for brand name drugs that don't have a generic equivalent.
However, insurers have defended the practice of copay accumulators as a way to bring transparency to drug prices because drug coupons mask the true list price of a product.
"Drugmakers could price the drug reasonably or could provide copay coupons to every patient, for the entire time they need to take the medication. But they don't," said Kristine Grow, spokeswoman for the insurance lobbying group America's Health Insurance Plans. "Instead, they keep the prices high and offer coupons only to some patients, and only until their deductibles are met."