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Published on Tuesday, October 18, 2022

Pharmacy Groups Unite to Defend Oklahoma PBM Law

The National Community Pharmacists Association (NCPA),  the American Pharmacists Association (APhA) and the National Association of Chain Drug Stores (NACDS), along  with American Pharmacies (APRx) and the Oklahoma Pharmacists Association (OPhA), today filed an amicus curiae brief defending states’ rights to pass and enforce laws protecting patients and community pharmacies from predatory pharmacy benefit  manager (PBM) practices.

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.  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 joint amicus brief notes that “The law at issue here, the Oklahoma Patient’s Right to Pharmacy Choice Act, addresses a subset of the business practices of PBMs that have inhibited safe, cost-effective, and convenient access to pharmacy care.”

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.

Founded in 1898, the National Community Pharmacists Association is the voice of more than 19,400 independent community pharmacies nationwide that employ about 240,000 individuals and dispense roughly 40% of the nation’s retail prescriptions.

The American Pharmacists Association is the voice for pharmacists, advancing the profession of pharmacy. APhA delivers invaluable leadership and support to pharmacists across all practice settings, including its nearly 50,000 member pharmacists, scientists, students and technicians.

The National Association of Chain Drug Stores encompasses 80 chain-pharmacy companies, including national companies and regional chains with a minimum of four stores. There are more than 40,000 retail chain pharmacies in the United States that

employ nearly 3 million people, including 155,000 pharmacists who fill over 3 billion prescriptions annually.

American Pharmacies is a cooperative of independent pharmacies serving the professional, economic and advocacy needs of more than 600 member pharmacies in 36 states, including Oklahoma.

The Oklahoma Pharmacists Association is a state association representing the interests of pharmacists in Oklahoma. OPhA includes more than 500 pharmacist members across Oklahoma who are directly affected by the challenged legislation.



Andie Pivarunas (NCPA)  |  703-600-1174  | 

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