OTC study encourages congressional action

Making it difficult for consumers to cover the costs of over-the-counter (OTC) medications doesn’t make sense at all. Yet, included in the Patient Protection and Affordable Care Act is a rule that requires those with FSAs, HSAs and HRAs to obtain a doctor’s prescription to use their accounts to cover the associated costs. 

When this idea first came up, I worked hard in association with Save Flexible Spending Plans (www.SaveMyFlexPlan.org) to argue why it shouldn’t be adopted.  Problems with the rule include a lack of clarity (doctors, pharmacists and patients are all confused about how to comply) and functionality (patients seeking prescriptions for medicines already available over-the-counter may drive up health care costs by increasing office visits).

While the OTC rule is in place, I’m pleased to report that the fight to repeal it is picking up speed.

This week, I’ll be back in D.C. for meetings with various policy makers recommending fixes to this provision, as well as to the one that requires consumers to forfeit their unused FSA account balance at the end of the year (see my previous post “Ending Use It or Lose It Is a Win-Win” for more on this issue).

Meanwhile, many other groups are gearing up to address this same issue.

According to a recent cost analysis by the Consumer Healthcare Products Association (CHPA), 50 million unnecessary visits to primary care physicians and $5 billion per year could be saved with a change to the OTC restriction rule and increased self-care. And they found that 96 percent of U.S. adults believe OTCs make it easy for individuals to care for minor ailments and 88 percent of physicians say they recommend that patients try to address minor ailments with self-care interventions, including the use of OTC medicines, before seeking professional care.

A number of bills have been put forth that repeal the OTC rule and improve the accessibility of consumer-directed health care accounts.  Here is a brief overview of the pending legislation:

Patients' Freedom to Choose Act (H.R. 605, S. 312)

  • Sponsors: Rep. Erik Paulsen and Sen. Kay Bailey Hutchison
  • What it does: Repeals restrictions on OTC medications in PPACA and the planned $2,500 cap on FSA contributions
  • Status: H.R. 605 has 107 co-sponsors and S. 312 has 11

Family and Retirement Health Investment Act of 2011 (S. 1098 and H.R. 2010)

  • Sponsors: Sen. Orrin Hatch and Rep. Erik Paulsen
  • What it does: Repeals restrictions on OTC medications in PPACA, expands use of FSAs and HSAs for health care retainer fees and Medicare hospital plan beneficiaries, and allows a rollover of $500 for FSAs
  • Status: S. 1098 has 3 co-sponsors and H.R. 2010 has 30 co-sponsors

Restoring Assistance for Families' and Seniors' Health Expenses Act of 2011 (H.R. 450)

  • Sponsor: Rep. David Reichert
  • What it does: Repeals restrictions on OTC medications in PPACA, the increased tax penalty for non-medical HSA withdrawals and the planned contribution cap
  • Status: The legislation only has attracted 6 co-sponsors thus far

 Restoring Consumer-driven Health Care Act of 2011 (H.R. 524)

  • Sponsor: Rep. Benjamin Quayle
  • What it does: Repeals restrictions on OTC medications in PPACA and the increased tax penalty
  • Status: Zero co-sponsors


If you’re wondering if there’s anything you should be doing about the six bills that have been introduced the answer is absolutely.

 Make sure you're informed about legislation that affects your industry and stay active by writing e-mails, calling, or meeting with your members of Congress about related legislation.  (Anyone who wants an easy way to contact Congress can use the tools on www.savemyflexplan.org to help identify their representatives and contact them by phone or e-mail.)  Once you’ve done that, be sure to encourage your colleagues and others in the benefits industry to get involved as well.



About the Author
Jody Dietel

Jody Dietel

Jody Dietel is chief compliance officer at WageWorks, Inc. and executive director of Save Flexible Spending Plans, an advocacy campaign to protect the accessibility and use of flexible spending accounts. Concurrently, she serves on the Board of Directors for the Special Interest Group for IIAS Standards (SIGIS), the industry group that determines standards for the use of Health Payment Cards at merchants without the need for documentation, and is a member of the board of directors for the Employers Council of Flexible Compensation and the HSA Council. A frequent speaker at industry functions, Jody is especially proud of being the only non-attorney to present at Employee Benefits Institute of America's conferences.

For more information visit, www.wageworks.com or www.savemyflexplan.org. To learn more about the proper use and advantages of tax-advantaged benefits, visit www.savesmartspendhealthy.org.  


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