ARLINGTON, Va. – 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 sharing the announcement, NACDS president and CEO Steven Anderson said: “This Oklahoma law – like others similar to it – not only is appropriate, but also vital for patients and for the pharmacies that serve them. NACDS is pleased to be on this brief.”

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.