COURT OF APPEALS RULES FOR DRUGMAKERS IN 340B CASE — Pharmaceutical manufacturers got a victory from the Third Circuit Court of Appeals on Monday, with judges ruling providers could not use the 340B drug discount program through an unlimited number of contract pharmacies. The case, between Sanofi Aventis and HHS, stemmed from over a decade of shifting rules about how and where drug companies must offer discounts for certain providers. HHS argued the program should allow hospitals to get discounts through an unlimited number of contract pharmacies (and that it should be able to enforce such a policy). The court rejected that claim, saying Congress, not providers or HHS, sets the terms of the program. “Statutory silences, like awkward silences, tempt speech,” Judge Stephanos Bibas, one of the three judges, wrote in the court’s opinion. “But courts must resist the urge to fill in words that Congress left out.” But the court also suggested drug companies would be required under the law to allow the discounts for at least one contract pharmacy where no other options are available — a detail some providers welcomed. Maureen Testoni, president and CEO of provider group 340B Health, said in a statement the group was “encouraged by the court’s recognition that companies must offer their drugs at 340B pricing to all eligible covered entities,” adding that they “respectfully disagree” with the court’s ruling on how many pharmacies must be included in the discounts. Other groups are looking to future appeals for more favorable rulings. “We expect the two other courts of appeals that are currently considering the issue will agree,” Chad Golder, deputy general counsel for the American Hospital Association, said in a statement. “The only result of this decision will be even greater profits for drug companies and reduced access to medicines for patients.” Still, Monday’s win for pharmaceutical companies is largely seen as a loss for the hospitals and clinics that get the discount, with the stage now set for them to be more limited in where they can get the program’s discounts. “PhRMA filed an amicus brief in this matter urging this result, and we appreciate the court’s careful consideration of contract pharmacy participation in the 340B program,” PhRMA spokesperson Nicole Longo said in an email. “As stated in our brief, ‘the program today bears little resemblance to the one Congress enacted — and contract pharmacies have been one of the primary drivers of that radical transformation.’” IT'S TUESDAY. WELCOME TO PRESCRIPTION PULSE. Huge congrats to Prescription Pulse co-author Lauren Gardner, who welcomed a new daughter to the world on Thursday, Jan. 26. Send tips and feedback to David Lim (dlim@politico.com or @davidalim) or Katherine Ellen Foley (kfoley@politico.com or @katherineefoley). TODAY ON OUR PULSE CHECK PODCAST, your co-host talks with Megan Wilson about the rumors spooking health care lobbyists on K Street about incoming Senate HELP Committee Chair Bernie Sanders.
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