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Twice-Weekly Briefing
Friday, September 25, 2026
Issue 260925-66
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The MOC Brief
Health policy, priced and translated for self-funded plan sponsors
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In This Edition
Five developments, and what each one costs you.
| 1. | CMS is asking how far Part D pharmacy rates are set by reference to a pharmacy's own commercial rates, and you can file a comment. | | 2. | A federal judge dismissed a health plan's suit over arbitration eligibility for lack of jurisdiction. | | 3. | The federal arbitration filing system is moving to a new platform, and the organization handling your disputes has to register. | | 4. | TrumpRx, the federal cash-price drug site, beat the peer-country average on 17 of 32 brand drugs, and the big PBMs have agreed to show patients those prices. | | 5. | A House bill would make your broker or consultant restate every PBM bid as one total annual cost figure under ERISA. |
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| 1 · PHARMACY CONTRACTING · September 24, 2026 |
| CMS Is Asking How Far Part D Rates Are Set By Reference to a Pharmacy's Commercial Rates |
| CMS published a Request for Information on September 24, 2026 at 91 FR 60568, document 2026-19535, file code CMS-4217-NC. The authority is section 6223(a) of the Consolidated Appropriations Act, 2026, which amends section 1860D-4(b)(1)(A) of the Social Security Act and requires the Secretary "to establish standards for reasonable and relevant contract terms and conditions no later than the first Monday in April of 2028, for plan years beginning on or after January 1, 2029." CMS asks across eight topic areas, and several of the questions reach outside Medicare into commercial lines of business. It asks about "The extent to which a pharmacy's Part D reimbursement rates are set or adjusted in relation to the same pharmacy's commercial reimbursement rates," and about "Trends related to the use of guarantees that utilize a single effective rate target for both Part D and commercial lines of business." It also asks whether standard Part D pharmacy terms are offered standalone or "as part of a broader network agreement covering multiple lines of business (for example, Medicaid managed care, commercial, exchange)." Comments are due November 23, 2026. The document carries no statistics, no percentages and no dollar amounts anywhere; CMS is asking commenters to supply the data. This is a Request for Information and not a proposed rule, so nothing is required of anyone today, and the words employer plan and self-funded do not appear in it. |
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MOC Perspective
The rate architecture CMS is asking about is the one sitting under your own PBM contract. A single effective rate target stretched across more than one book is how an aggregate discount guarantee gets met while individual claims move underneath it. Nothing here binds a commercial plan, and whatever the Secretary writes for 2029 will be a Part D standard. But this is the first time the federal government has set out to define a reasonable pharmacy contract term in regulation, and that definition becomes the reference point every consultant, every state legislature and every plaintiff reaches for afterward. The docket is open to plan sponsors, and comments are public.
What to do now
| ▪ | Ask your PBM in writing whether your discount guarantee is measured against a single effective rate shared with any other line of business, with a 30 day deadline for the answer. | | ▪ | Pull your top 20 pharmacy reimbursement terms and confirm whether any of them point at a rate set outside your own contract. | | ▪ | File a comment on CMS-4217-NC by November 23, 2026 naming the contract terms you cannot get priced today. |
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| Source: Federal Register, Centers for Medicare & Medicaid Services, 91 FR 60568 |
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| 2 · OUT-OF-NETWORK DISPUTES · September 23, 2026 |
| A Federal Judge Ruled a Health Plan Cannot Sue Over Which Claims Reached Arbitration |
| On September 23, 2026 Judge Robert W. Schroeder III of the Eastern District of Texas, Texarkana Division, dismissed Blue Cross Blue Shield of Texas, a Division of Health Care Service Corporation, v. Zotec Partners, LLC, No. 5:25-CV-00186-RWS. The plan had sued a physician billing company over what it said were ineligible submissions into the No Surprises Act arbitration process, and the court recited the plan's contention that the defendant "has employed this scheme more than 500 times by initiating more than 100 batched items and services." That is the plan's allegation as the court restated it, not a finding. Writing in its own voice, the court said "The Court agrees that the NSA forecloses judicial review of eligibility determinations." For the reasoning it pointed back at itself, noting that it had "explained in HaloMD that 'inherent in the NSA's bar of judicial review of payment determinations is a limitation on the review of eligibility decisions.'" Claims I through V "with respect to Defendant's submission of items and services for IDR are DISMISSED WITH PREJUDICE for lack of subject-matter jurisdiction," and the Clerk was directed to close the case. The court decided jurisdiction and nothing else, writing that because it lacks subject-matter jurisdiction "it does not reach the merits of Defendant's remaining arguments." The earlier decision it relied on is its own, Blue Cross Blue Shield of Texas v. HaloMD, LLC, No. 5:25-cv-132-RWS (E.D. Tex. May 22, 2026); this is a district court reading Fifth Circuit law, not a ruling by the Fifth Circuit. |
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MOC Perspective
You do not file arbitration disputes. Your TPA or your carrier acting as administrator does, and the awards land on your claims. Two decisions from the same judge now say a payer that believes disputes were ineligible has no route to court. Neither binds another judge, and the Fifth Circuit itself has not ruled on eligibility review. But if that reading holds, the eligibility calls inside the process are effectively final and your out-of-network exposure is set there. Your administrative services agreement is where you have a say: what your administrator has to do about a submission it thinks is ineligible, and what it reports back to you about the outcomes.
What to do now
| ▪ | Ask your administrator for your plan's arbitration volume and award outcomes covering January through September 2026. | | ▪ | Read the dispute handling section of your administrative services agreement and name who decides whether to contest eligibility, before your next quarterly vendor review. | | ▪ | Price the out-of-network claims your plan paid through arbitration awards over the last 12 months against your in-network allowed amounts for the same services. |
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| Source: U.S. District Court for the Eastern District of Texas, No. 5:25-CV-00186-RWS, order posted by the Georgetown Health Care Litigation Tracker |
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| 3 · CLAIMS TECHNOLOGY · September 15, 2026 |
| The Federal Arbitration Platform Is Open for Registration and Retires the Web Forms January 15, 2027 |
| CMS opened account creation for the Federal Independent Dispute Resolution Gateway on September 15, 2026, announced in its No Surprises Act notices that day. The Gateway replaces the single-use web forms the arbitration process runs on today with a platform where users can "Start and respond to disputes," "Access dispute dashboards and reports associated with their organization," "Track dispute information, including disputes assigned to a certified IDR entity," "Monitor assigned disputes by process phase," and "Review notifications regarding dispute activity." CMS says it "includes important new security features, including identity verification processes and protocols that permit only U.S.-based users to access the Federal IDR process." On registration, CMS writes that "Organizations and individuals that process disputes, represent parties, or submit IDR web forms in the current Federal IDR process must sign up to manage disputes in the IDR Gateway." It then names the carve-out that decides what a plan sponsor has to do: "If a party uses a third-party administrator or another organization to process disputes, the party does not need to sign up for the IDR Gateway but must ensure the third-party administrator or organization responsible for managing dispute processing activities signs up for an IDR Gateway account." And on the deadline: "The web forms will no longer be available outside the IDR Gateway after January 15, 2027, except for the 'Notice of IDR Initiation - Resubmission' web form." CMS describes the switchover itself as happening in "late 2026" without naming a day. |
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MOC Perspective
Your plan is a party to every federal arbitration filed against it, and for most sponsors the filing is done by somebody else. CMS put the confirming duty on the party rather than on the vendor. You do not need your own account, but CMS says the party must ensure the organization managing its disputes has one. That is a single written confirmation and it is available this month. After the cutoff the route your administrator uses today is gone for everything except resubmissions. CMS has not said what happens to a party whose vendor never registers, which is the reason to get the confirmation in writing now rather than in January.
What to do now
| ▪ | Ask your TPA in writing to confirm it has created an IDR Gateway account, with a 30 day deadline for the answer. | | ▪ | Name the one person at your administrator accountable for federal arbitration responses, and put that name in your vendor file. | | ▪ | Add the January 15, 2027 cutoff to your vendor oversight calendar and set your own check-in for the first week of December. |
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| Source: Centers for Medicare & Medicaid Services, Federal IDR Gateway |
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| 4 · DRUG PURCHASING · September 24, 2026 |
| TrumpRx Beat the Peer-Country Average on 17 of 32 Brand Drugs and Lost on the Other 15 |
| KFF published an analysis on September 24, 2026 comparing posted TrumpRx prices for brand-name drugs against publicly listed prices in eleven peer nations. "For 17 drugs of the 32 drugs, the TrumpRx price is lower than the average price in comparable countries." "For the other 15 drugs, the TrumpRx price exceeds the average comparable country price." At the ends of the range, "For five of the 32 drugs, the TrumpRx drug price is the lowest compared to all other comparable countries," and "For 13 of the 32 drugs, the TrumpRx drug price is the highest compared to all other countries." On method, KFF writes that "Only TrumpRx prescription drugs that did not have a generic or biosimilar available in the U.S. were selected for this analysis (39 in total)," and the comparison ran on the 32 of those with a published price in at least one peer nation. "Drug prices for TrumpRx were updated on August 25, 2026," "International drug prices were pulled in August 2026," and prices "were converted to U.S. dollars using the Bank of America's exchange rates dated September 9, 2026." KFF says the comparison is "unadjusted for a country's cost of living" and that peer prices "may not necessarily reflect the out-of-pocket costs paid by an individual." The analysis names no U.S. commercial or employer plan price. Separately, the pharmacy benefit managers named by PCMA on August 13, 2026, among them CVS Health, Express Scripts, OptumRx and Prime Therapeutics, committed to "presenting to patients the cash prices listed on TrumpRx for comparison to the prices under their benefit, through use of PBM real time benefit tools, when consistent with plan coverage and allowed by law." |
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MOC Perspective
KFF compared this channel against other countries. It did not compare it against your plan's net cost, and that second comparison is the one you own. What makes it a plan question now is the commitment: the PBMs on PCMA's list have agreed to show a patient the cash price next to the benefit price through their real time benefit tools, where that is consistent with plan coverage and allowed by law. A member who takes the cash price is buying outside the benefit, and neither the commitment page nor the KFF analysis says how that purchase is handled afterward: whether it touches the deductible or the out-of-pocket maximum, whether it lands in your utilization data, whether it counts against the rebate and discount guarantees you negotiated with the same PBM. Those are your contract's answers to give, and most contracts were not written for the question.
What to do now
| ▪ | Pull your ten highest brand drug spend molecules and compare your PBM's net cost per fill against the posted cash price for each. | | ▪ | Ask your PBM in writing how a member's cash purchase outside the plan is treated for your rebate and discount guarantees, within two weeks. | | ▪ | Confirm in your plan document whether a purchase made outside the plan can be credited to a member's deductible, before you sign your next renewal. |
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| Source: KFF, published on the Peterson-KFF Health System Tracker |
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| 5 · PBM DISCLOSURE · September 14, 2026 |
| A House Bill Would Make Your Consultant Restate Every PBM Bid as One Total Cost Figure |
| H.R. 10369, the Net Effective Cost Transparency and Prescription Drug Affordability Act of 2026, was introduced in the 119th Congress on September 14, 2026 by "Mr. Mackenzie (for himself, Mr. Auchincloss, Mr. Allen, Mrs. McBath, and Mrs. Miller of West Virginia)." It would amend title XVIII of the Social Security Act and ERISA "to create certain requirements with respect to pharmacy benefit managers." The ERISA half runs through section 408(b)(2), the service provider disclosure provision the Consolidated Appropriations Act, 2021 used to make brokers and consultants report their compensation to group health plan fiduciaries. The duty would sit with that service provider rather than with the PBM. It would add a required disclosure of "A description, in a uniform format, of the projected net effective cost for the applicable plan year for each bid received by the covered service provider on behalf of the covered plan from an entity providing pharmacy benefit management services." The bill defines net effective cost, for a bid from a PBM, as "the total annual cost to the covered plan of all covered drugs in the formulary that would be furnished to all enrollees in such plan for such year if such bid were accepted." It says "The amendments made by this section shall apply with respect to plan years beginning after calendar year 2027." It was referred to Energy and Commerce, Ways and Means, and Education and Workforce on introduction, which is the last action the bill text records. |
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MOC Perspective
PBM bids are hard to compare because they are not built to be compared. Spread, rebate guarantees, administrative fees and formulary composition move against each other, and the bid that wins on headline discount often loses on total spend. This bill would put the total in one line, in one format, and hand it to the plan fiduciary. It may never move, and an introduced bill is worth nothing until it does. What it is worth today is the definition. You can require that format in your next request for proposals without waiting for Congress.
What to do now
| ▪ | Write a net effective cost definition into your next PBM request for proposals and require every bidder to price against the same formulary. | | ▪ | Ask your consultant to restate your last three PBM bids as one total annual cost figure each, within two weeks. | | ▪ | Read what your current ERISA 408(b)(2) disclosure actually tells you about pharmacy compensation, before you sign your next renewal. |
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| Source: U.S. Government Publishing Office, H.R. 10369, 119th Congress |
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The Bottom Line
Three of these five come down to something nobody has put in front of you: the comment you have not filed, the arbitration report you have not asked your administrator for, the PBM bids nobody has restated as one figure. None of the three waits on Congress. The arbitration platform is different, because it is a date and one written confirmation from a vendor. The cash drug channel is different again, because nobody has told you yet how a purchase made outside the benefit is counted, and your contract is where that gets settled. Every item above starts with a question you can send this week.
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Jude Odu
Founder and Principal, Model Optimal Care
Author of Model Optimal Care: End U.S. Healthcare Waste, One Health Plan at a Time
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