HouseH.R. 10628119th Congress

Biosimilars Access and Affordability Act

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[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[H.R. 10628 Introduced in House (IH)]

<DOC>

119th CONGRESS
  2d Session
                               H. R. 10628

 To amend title XI of the Social Security Act to alter when biosimilar 
   biological products are eligible for price negotiations under the 
                           Medicare program.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                           September 28, 2026

      Mr. Langworthy (for himself, Mr. Auchincloss, Mr. Joyce of 
   Pennsylvania, Ms. Sanchez, Mr. Peters, Mr. Yakym, Mr. Moran, Mr. 
   Mullin, and Mr. Panetta) introduced the following bill; which was 
 referred to the Committee on Energy and Commerce, and in addition to 
   the Committee on Ways and Means, for a period to be subsequently 
   determined by the Speaker, in each case for consideration of such 
 provisions as fall within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL

 
 To amend title XI of the Social Security Act to alter when biosimilar 
   biological products are eligible for price negotiations under the 
                           Medicare program.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Biosimilars Access and Affordability 
Act''.

SEC. 2. CHANGE OF WHEN BIOSIMILARS ARE ELIGIBLE FOR PRICE NEGOTIATIONS.

    (a) In General.--Section 1192 of the Social Security Act (42 U.S.C. 
1320f-1) is amended--
            (1) in subsection (c)--
                    (A) in paragraph (1), in the matter preceding 
                subparagraph (A), by striking ``such year and each 
                subsequent year beginning before the first year that 
                begins at least 9 months'' and inserting ``the year of 
                the selected drug publication date for such initial 
                price applicability year and each subsequent year, 
                except that a drug or biological product shall no 
                longer be a selected drug beginning on the first day of 
                the year that begins''; and
                    (B) in paragraph (2)--
                            (i) in subparagraph (B), by striking ``or 
                        during the negotiation period with respect to 
                        such initial price applicability year'' and 
                        inserting ``the first day of such initial price 
                        applicability year''; and
                            (ii) in the flush text following 
                        subparagraph (B)--
                                    (I) by striking ``and shall 
                                continue'' and inserting ``if such 
                                negotiation period has not yet ended, 
                                shall not have its maximum fair price 
                                or the explanation of such maximum fair 
                                price published under section 1195(a) 
                                if such publication has not yet 
                                occurred, and'';
                                    (II) by inserting ``solely'' before 
                                ``with respect to the number''; and
                                    (III) by inserting ``, but no 
                                maximum fair price shall apply for such 
                                initial price applicability year in 
                                accordance with paragraph (1)'' before 
                                the period at the end;
            (2) in subsection (f)--
                    (A) in paragraph (1)--
                            (i) in subparagraph (A), by striking ``an 
                        extended monopoly drug (as defined in section 
                        1194(c)(4)'';
                            (ii) in subparagraph (B)--
                                    (I) in the heading, by striking 
                                ``Request required'' and inserting 
                                ``Procedures'';
                                    (II) by redesignating clauses (i) 
                                and (ii) as clauses (ii) and (iii) 
                                respectively;
                                    (III) by inserting before clause 
                                (ii) (as so redesignated) the 
                                following:
                            ``(i) Automatic delay.--
                                    ``(I) In general.--The Secretary 
                                shall apply, with respect to a 
                                biological product described in 
                                subparagraph (A), the rules described 
                                in subparagraph (A) of paragraph (2) 
                                (subject to subparagraphs (B) and (C) 
                                of such paragraph) if, prior to the 
                                selected drug publication date for the 
                                list published under subsection (a) 
                                with respect to the initial price 
                                applicability year for which the 
                                biological product may have been 
                                included as a selected drug on such 
                                list but for paragraph (2)(A)--
                                            ``(aa) the manufacturer of 
                                        a biosimilar biological product 
                                        for which such biological 
                                        product will be the reference 
                                        product has publicly disclosed 
                                        in a press release or other 
                                        communication, or the Secretary 
                                        determines from information 
                                        from any other source--

                                                    ``(AA) that such 
                                                manufacturer's 
                                                application for 
                                                licensure under section 
                                                351(k) of the Public 
                                                Health Service Act for 
                                                the biosimilar 
                                                biological product was 
                                                accepted for review or 
                                                approved by the Food 
                                                and Drug 
                                                Administration; or

                                                    ``(BB) that such 
                                                manufacturer's clinical 
                                                study or studies of the 
                                                biosimilar biological 
                                                product as described in 
                                                section 
                                                351(k)(2)(A)(i)(I)(cc) 
                                                of the Public Health 
                                                Service Act were 
                                                initiated and remain 
                                                ongoing, are complete, 
                                                or that no such study 
                                                or studies are 
                                                necessary; and

                                            ``(bb) subject to subclause 
                                        (II), based on information 
                                        submitted to the Secretary by 
                                        any person or obtained by the 
                                        Secretary from any other 
                                        source, the Secretary 
                                        determines that the 
                                        manufacturer of the biosimilar 
                                        biological product expects that 
                                        such product will be marketed 
                                        before the date that is 2 years 
                                        after the selected drug 
                                        publication date with respect 
                                        to such initial price 
                                        applicability year.
                                    ``(II) Requirements.--
                                            ``(aa) In general.--Before 
                                        making the determination 
                                        described in subclause 
                                        (II)(bb), the Secretary shall--

                                                    ``(AA) inform the 
                                                manufacturer of the 
                                                biosimilar biological 
                                                product of the 
                                                information on which 
                                                the Secretary intends 
                                                to rely in making such 
                                                determination; and

                                                    ``(BB) require that 
                                                such manufacturer 
                                                confirms in writing, 
                                                under penalty of 
                                                perjury, the accuracy 
                                                of such information or 
                                                corrects any such 
                                                inaccurate information, 
                                                including its expected 
                                                marketing date.

                                            ``(bb) Clarification.--The 
                                        existence of pending or 
                                        prospective patent litigation 
                                        over a biosimilar biological 
                                        product shall not preclude 
                                        application of the rules 
                                        described in subparagraph (A) 
                                        of paragraph (2) (subject to 
                                        paragraphs (B) and (C) of such 
                                        paragraph).'';
                                    (IV) in clause (ii) (as so 
                                redesignated)--
                                            (aa) by striking subclause 
                                        (II);
                                            (bb) by striking ``In 
                                        general'' and all that follows 
                                        through ``unless'' and 
                                        inserting ``Delay upon 
                                        request.-- The Secretary shall 
                                        provide for a delay under 
                                        paragraph (2)(A) if''; and
                                            (cc) by striking 
                                        ``subparagraph (2)(A) or;'' and 
                                        inserting ``paragraph (2)(A), 
                                        provided that a determination 
                                        of high likelihood is made 
                                        under paragraph (3).''; and
                                    (V) in clause (iii) (as so 
                                redesignated)--
                                            (aa) in the heading, by 
                                        inserting ``for a delay upon 
                                        request'' after ``documents'';
                                            (bb) in subclause (I), in 
                                        the matter before item (aa), by 
                                        striking ``clause (i)'' and 
                                        inserting ``clause (ii)'';
                                            (cc) in subclause (I)(bb), 
                                        by inserting ``to the extent 
                                        available,'' before ``all 
                                        agreements''; and
                                            (dd) in subclause 
                                        (III)(bb)--

                                                    (AA) by inserting 
                                                ``the anticipated 
                                                launch date'' before 
                                                ``capital investment''; 
                                                and

                                                    (BB) by striking 
                                                ``year (or the 2 years, 
                                                as applicable)'' and 
                                                inserting ``applicable 
                                                period''; and

                            (iii) in subparagraph (C)(i), by striking 
                        ``paragraph (2)(D)(iv)'' and inserting 
                        ``paragraph (2)(C)(iii)'';
                    (B) in paragraph (2)--
                            (i) in subparagraph (A)--
                                    (I) in the heading, by striking ``1 
                                year'' and inserting ``2 years'';
                                    (II) by inserting ``or paragraph 
                                (1)(B)(i) applies'' after ``under 
                                paragraph (3)''; and
                                    (III) by striking ``1 year'' and 
                                inserting ``2 years'';
                            (ii) by striking subparagraph (B) and 
                        inserting the following:
                    ``(B) If not licensed and marketed during the 
                delay.--If, during the time period between the selected 
                drug publication date on which the biological product 
                would have been included on the list as a selected drug 
                pursuant to subsection (a) but for subparagraph (A), 
                and the selected drug publication date with respect to 
                the initial price applicability year that is 2 years 
                after the initial price applicability year for which 
                such biological product would have been included as a 
                selected drug on such list, the Secretary determines 
                that such biological product is not the reference 
                product for a biosimilar biological product that has 
                been licensed and marketed under section 351(k) of the 
                Public Health Service Act--
                            ``(i) the Secretary shall include the 
                        biological product as a selected drug on the 
                        list published under subsection (a) with 
                        respect to the initial price applicability year 
                        that is 2 years after the initial price 
                        applicability year for which such biological 
                        product would have been included as a selected 
                        drug on such list but for subparagraph (A); and
                            ``(ii) if such biosimilar biological 
                        product has not been licensed and marketed 
                        under section 351(k) of the Public Health 
                        Service Act on or before the date that is 2 
                        years after the selected drug publication date 
                        on which the biological product would have been 
                        included on the list as a selected drug 
                        pursuant to subsection (a) but for subparagraph 
                        (A), the manufacturer of such biological 
                        product shall pay a rebate under paragraph (4) 
                        with respect to the years for which such 
                        manufacturer would have provided access to a 
                        maximum fair price for such biological product 
                        but for subparagraph (A).'';
                            (iii) by striking subparagraph (C);
                            (iv) by redesignating subparagraph (D) as 
                        subparagraph (C); and
                            (v) in subparagraph (C) (as so 
                        redesignated)--
                                    (I) by striking clauses (ii) and 
                                (iii);
                                    (II) by redesignating clause (iv) 
                                as clause (ii); and
                                    (III) in clause (ii)(II) (as so 
                                redesignated), by striking ``paragraph 
                                (1)(B)(ii)(I)(bb)'' and inserting 
                                ``paragraph (1)(B)(iii)(I)(bb)'';
                    (C) by striking paragraph (3) and inserting the 
                following:
            ``(3) High likelihood.--
                    ``(A) In general.--Subject to subparagraph (B), for 
                purposes of this subsection, there is a high likelihood 
                described in paragraph (1) or paragraph (2), as 
                applicable, if the Secretary determines that 
                information submitted to the Secretary by any person or 
                obtained by the Secretary from any other source 
                provides clear and convincing evidence that such 
                biosimilar biological product will, within the time 
                period specified under paragraph (1)(A) be marketed.
                    ``(B) Determination requirements.--Before 
                determining whether there is a high likelihood 
                described in paragraph (1) or paragraph (2), the 
                Secretary shall inform the manufacturer of the 
                biosimilar biological product of the information on 
                which the Secretary intends to rely in making such 
                determination and shall require that such manufacturer 
                confirms in writing, under penalty of perjury, the 
                accuracy of such information or correct any such 
                inaccurate information.
                    ``(C) Clarification.--The existence of pending or 
                prospective patent litigation regarding the biosimilar 
                biological product shall not preclude a finding of high 
                likelihood under this paragraph.''; and
                    (D) in paragraph (4)--
                            (i) in subparagraph (A), by striking 
                        ``subparagraphs (B)(ii)(II) and (C)(ii) of 
                        paragraph (2)'' and inserting ``paragraph 
                        (2)(B)(ii)''; and
                            (ii) in subparagraph (B)--
                                    (I) in clause (i), by striking 
                                subclause (I) and inserting the 
                                following:
                                    ``(I) 75 percent of the amount by 
                                which the average manufacturer price, 
                                as reported by the manufacturer of such 
                                covered part D drug under section 1927 
                                (or, if not reported by such 
                                manufacturer under section 1927, as 
                                reported by such manufacturer to the 
                                Secretary pursuant to the agreement 
                                under section 1193(a)) for such 
                                biological product, with respect to 
                                each of the calendar quarters of the 
                                price applicability period that would 
                                have applied but for this subsection; 
                                exceeds--
                                            ``(aa) for the initial 
                                        price applicability year that 
                                        would have applied but for a 
                                        delay under paragraph (2)(A), 
                                        the maximum fair price 
                                        negotiated under section 1194 
                                        for such biological product 
                                        under such agreement; or
                                            ``(bb) for the second year 
                                        of such delay, such maximum 
                                        fair price, increased as 
                                        described in section 
                                        1195(b)(1)(A); and''; and
                                    (II) in clause (ii), by striking 
                                subclause (I) and inserting the 
                                following:
                                    ``(I) 80 percent of the amount by 
                                which the payment amount for such 
                                biological product under section 
                                1847A(b), with respect to each of the 
                                calendar quarters of the price 
                                applicability period that would have 
                                applied but for this subsection; 
                                exceeds--
                                            ``(aa) for the initial 
                                        price applicability year that 
                                        would have applied but for a 
                                        delay under paragraph (2)(A), 
                                        the maximum fair price 
                                        negotiated under section 1194 
                                        for such biological product 
                                        under such agreement; or
                                            ``(bb) for the second year 
                                        of such delay, such maximum 
                                        fair price, increased as 
                                        described in section 
                                        1195(b)(1)(A); and''; and
            (3) by adding at the end the following new subsection:
    ``(g) Definition of Marketed.--In this section, the term `marketed' 
means, with respect to a drug or biological product (including a 
biosimilar biological product) introduced or delivered for introduction 
into interstate commerce.''.
    (b) Conforming and Technical Amendments.--Such Act is amended--
            (1) in section 1192(b)(3) (42 U.S.C. 1320f-1(b)(3))--
                    (A) by striking ``subparagraphs (B)(ii)(I) and 
                (C)(i) of subsection (f)(2)'' and inserting 
                ``subsection (f)(2)(B)(i)''; and
                    (B) by striking ``described in such subparagraphs'' 
                and inserting ``described in such subsection''; and
            (2) in section 1198(2) (42 U.S.C. 1320f-7(2)), by striking 
        ``1192(f),'' and inserting ``1192(f)''.
    (c) Effective Date.--The amendments made by this section shall 
apply with respect to initial price applicability years beginning with 
initial price applicability year 2027.
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