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American Pharmacies has joined four other pharmacy organizations in filing a joint amicus curiae (friend of the court) brief defending states’ rights to pass and enforce laws protecting patients and community pharmacies from predatory pharmacy benefit manager (PBM) practices.
The amicus brief was filed today in the 10th Circuit Court of Appeals in cooperation with the American Pharmacists Association, the National Association of Chain Drug Stores, the National Community Pharmacists Association and the Oklahoma Pharmacists Association.
In 2019, the Oklahoma Legislature passed the Patient’s Right to Pharmacy Choice Act to protect Oklahomans’ access to pharmacy providers and protect pharmacies from self-serving practices of PBMs. The new law was soon challenged in court by the Pharmaceutical Care Management Association (PCMA, the PBMs’ trade lobby).
In early April, the U.S. District Court for the Western District of Oklahoma ruled largely in favor of the State of Oklahoma and Insurance Commissioner Glen Mulready in PCMA v. Mulready, upholding most of the Oklahoma statute against a federal preemption challenge. In late August, PCMA appealed that decision to the U.S. Court of Appeals for the Tenth Circuit, asserting that only four of the provisions are preempted by ERISA and Medicare Part D, retreating from the 14 it originally had challenged. No date has been set for oral arguments.
The brief makes several powerful arguments in support of the Patient’s Right to Pharmacy Choice Act, including:
The Act is not preempted by the Employee Retirement Income Security Act of 1984 (ERISA), because PBMs are not ERISA plans. Furthermore, the U.S. Supreme Court decision in Rutledge v. PCMA allows states to regulate the practices of third-party providers to ERISA plans — such as PBMs — even if those regulations indirectly affect ERISA plans.
- The Act’s “preferred network provision” is not preempted by Medicare Part D, as that space is not regulated by the federal government.
American Pharmacies Board Chairman Joe Ochoa said that PCMA continues to largely follow the same course in contesting state PBM reform laws around the country, despite the landmark December 2021 U.S. Supreme Court decision in Rutledge v. PCMA.
“They’re still arguing the same tired points that the Supreme Court has already decided,” Ochoa said. “The court totally rejected the ERISA preemption argument the PBMs keep raising. ERISA does not even regulate PBMs."
American Pharmacies continues to take decisive legal action in defense of PBM reforms. We make our voice heard in courts around the country to ensure that strong laws that have been passed are enforced to their fullest extent.
Last Nov. 29, American Pharmacies and key allies filed an amicus brief with a federal appeals court to defend a Louisiana law giving the state authority to regulate Medicare Part D claims. In July 2021, APRx filed an amicus brief (joined by the Alliance for Transparent and Affordable Prescriptions and the Community Oncologist Alliance) in PCMA v Wehbi in defense of North Dakota's PBM reform laws.
Earlier this year, American Pharmacies provided both financial and legal support to two Tennessee shareholders who are fighting a federal lawsuit filed by a food manufacturer that seeks to have major PBM reforms passed by the Tennessee Assembly in 2021 invalidated for ERISA plans.