PSE restriction, OTCS in FSAs 
remain focus of legislation


Currently there are two overarching legislative issues that either threaten to place greater restrictions on certain over-the-counter medicines or fail to restore access to an OTC benefit that once played a significant role in helping develop interest in the flexible spending account plans available today.

Regarding the cough-cold medicine sold from behind the pharmacy counter, no states embraced a prescription-only mandate on the sale of pseudoephedrine this year, representing a score for the 
OTC industry. As many as 23 states currently implement the industry-funded National Precursor Log Exchange, with six states having passed legislation in their current sessions. NPLEx bills still are very much active in three states — Hawaii, Ohio and New York — according to the Consumer Healthcare Products Association. Hawaii’s NPLEx legislation is waiting for a governor signature; Ohio’s legislation passed its House and now is before the Senate; and New York’s legislation recently came out of the Senate committee. NPLEx legislation also is still alive in California, though that legislation is not expected to come out of the current session.

In 2011, as many as 2 million grams of PSE that exceeded sales restrictions had been blocked by the NPLEx stop-sale system.

Earlier this month, the House of Representatives voted in favor of the Protect Medical Innovation Act of 2012, which would reinstate OTC medicines as eligible expenses under FSAs without the requisite prescription. The bill since has moved to the Senate for consideration.

“[With this bill] we are making it easier for Americans to be in charge of both their health care and their finances,” stated Rep. Tim Huelskamp, R-Kan., who co-sponsored the legislation.

While that industry-
supported bill is being debated on the Hill, the real question lay with the Supreme Court. If the Supreme Court nullifies the Patient Protection and Affordable Care Act in June, then OTCs should become eligible for FSA reimbursement again.

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