July 26, 2022
Please Donate Now to Help TN Members
Defend PBM Reform in ERISA Challenge

A Tennessee member pharmacy continues to put up a fight in a federal lawsuit filed by a food manufacturer that challenges the validity of Tennessee's recently enacted PBM reform laws. The company -- TN-based McKee Foods, maker of the Little Debbie brand of snack cakes -- is seeking to have major PBM reforms passed by the Tennessee Assembly last year invalidated for ERISA plans.

APRx member Thrifty MedPlus Pharmacy of Ooltewah, TN, was in 2019 removed from the provider network operated for McKee Foods' health plan. (Coincidentally, McKee plans to build an employee health center and pharmacy directly across the street from Thrifty MedPlus, owned by APRx members Julie and Greg Bohannon [right].)

Thrifty MedPlus complained to the State of Tennessee that its exclusion from the network violates state legislation enacted last year that specifically prohibits PBMs from interfering with patients' right to choose their pharmacy. Thrifty MedPlus also raised the issue with McKee's PBM, MedImpact, but did not complain directly to McKee Foods nor petition McKee for reinstatement into the network. Nonetheless, McKee Foods named Thrifty MedPlus a defendant in its suit challenging the Tennessee law.

The lawsuit -- especially the ongoing need to make expensive court filings -- is taxing Thrifty MedPlus' finances, and the pharmacy needs support to continue its legal fight in defense of Tennessee's PBM reform laws. American Pharmacies made a $10,000 contribution to the pharmacy in March to support its legal efforts and several individuals have likewise stepped up to make contributions. The Tennessee Pharmacists Association has been very supportive of the Bohannons and has generously expanded its Pharmacy Practice Preservation Fund (PPPF) donation portal to allow for online contributions to support Thrifty MedPlus.
American Pharmacies strongly encourages you to make a contribution to support Thrifty MedPlus. The fight to pass -- and defend -- PBM reform laws is a state-by-state battle and we all need to support those in every state who are fighting for the cause. To make an online contribution to support Thrifty MedPlus, go to https://www.tnpharm.org/events-resources/calendar/#id=10216&cid=973&wid=401 and navigate to the third donation option on the list, "PPPF Thrifty MedPlus Pharmacy Support." Click on the dollar amount in the first white box to highlight it and enter the desired amount of your donation. (The default amount displayed is $500, but you may enter any amount you wish -- all contributions help.) Then use the pull-down tab to the right of the donation box to select the number of contributions you wish to make (1 is the default). Click on the gold "Proceed" button below and you will go to the next page, where you enter your donor information and select your method of payment. The standard online payment options are American Express, MasterCard, VISA and debit card. Fill in all required information, then click on the gold "Donate" button to make your contribution.

Though electronic contributions are faster and preferred, you may donate by check if you wish. Please mail your check (payable to "TPA") to:
1732 Lebanon Pike Circle
Nashville, TN 37210

If you mail a check, be sure to specify on the check or on an included note that the contribution is for Thrifty MedPlus Pharmacy.

Lawsuit has important Implications
The suit, McKee Foods Corp. v. BFP Inc., has taken on much greater significance because McKee asserts that the Tennessee PBM reform law does not apply to its self-funded ERISA health plan and is asking the court to invalidate the Tennessee law on the basis that it is pre-empted by ERISA. If Thrifty MedPlus loses in the case, all Tennessee pharmacies will lose vital protections under the new law.

McKee Foods filed its suit against Thrifty MedPlus in federal court in Tennessee on November 15, 2021. Thrifty MedPlus filed its response and informed the court that McKee Foods is precluded from claiming the Tennessee law does not apply to its self-funded ERISA plan because it essentially acknowledged the law's applicability in its own plan document. The pharmacy attached a copy of that document as an exhibit to its response.

The State of Tennessee is now involved in the case after receiving the court's permission to intervene to defend the constitutionality of the Tennessee law. The State has filed a motion to dismiss the case. That motion has been fully briefed and is awaiting a decision by the court.

On May 23, McKee Foods filed a motion for summary judgment seeking a ruling from the court that the 2021 state law was preempted by ERISA. On May 24, Thrifty Med Plus filed a motion to dismiss the case on the basis that the recent passage of HB2661 in Tennessee rendered McKee Foods’ complaint moot. HB2661 was passed into law on May 25, 2022.      

The three motions are all pending. If the case is not resolved in the motions, trial will be held on July 11, 2023.

American Pharmacies commends the state of Tennessee for joining the lawsuit in defense of its PBM reform laws. And we are very grateful to the Tennessee Pharmacists Association for the leadership and care they have shown in backing the Bohannons and encouraging financial support of their ongoing legal fight.

"The fight against PBMs and their allies is on a state-by-state basis," American Pharmacies President Laird Leavoy said. "It is critical that we support those in every state who are trying to enact -- or defend -- laws that curb PBM abuses. We thank TPA for stepping up in a big way to offer this opportunity to support Julie and Greg Bohannon, and we strongly encourage all our members to make a donation to Thrifty MedPlus to help defend a vital PBM reform law."