On January 10, 2020, cheers erupted in the National Community Pharmacists Association’s headquarters when we learned the U.S. Supreme Court had decided to hear Rutledge v. Pharmaceutical Care Management Association, a case to determine whether ERISA preempts a state law regulating pharmacy benefit managers. NCPA has been fighting to rein in PBMs for years, and community pharmacy was keen for the court to weigh in on whether their practices are legal.
With everything that has happened since, it feels like we received that piece of good news much longer ago.
The court was originally expected to hear oral arguments in early spring of 2020, and to render a decision before the end of June. What few people fully grasped at that point — all that was to come when a faraway outbreak of acute respiratory illness made its way to our shores — changed all that and transformed so much of the world we knew.
Just two months later many businesses and schools were closed, social gatherings had become taboo, and the NCAA March Madness basketball tournament was cancelled for the first time in its history. The Supreme Court, too, postponed oral arguments for Rutledge v. PCMA and other cases, in keeping with coronavirus pandemic public health guidance.
Community pharmacies experienced big changes as well, without a doubt, swiftly pivoting to curbside service, expanding their delivery offerings, making hand sanitizer, and more. NCPA advocated for the Paycheck Protection Program funding for pharmacy small businesses that, according to an NCPA survey, 90% of community pharmacies planned to pursue to help them weather the COVID-19 storm. Throughout it all, these neighborhood pharmacies have been a constant, essential businesses and safety nets helping their neighbors in this time of crisis, as they do in normal times as well.
It was a challenging, extraordinary year for the world and for pharmacy. In many ways, 2021 may be a year of cleaning up the mess 2020 left behind. There will be plenty to do as we keep working to overcome the pandemic and pushing policy makers to provide small business pharmacies with the relief they need.
Since the coronavirus hit, a vaccine that would stop the virus, quell the fear and stoke the economy has been hoped for. Mercifully, several vaccine candidates look promising as I write this column, and we’re expecting widespread vaccine administration by community pharmacists to take place in 2021.
The role of pharmacists in this process is crucial. If independent pharmacists are not playing a central role in the administration of the vaccines, the rollout simply will not be successful, not only in terms of patients’ access to these vaccines but in overcoming hesitancy issues. Because of the speed of development and passage through all phases of clinical trials, the vaccines are going to be controversial. It will be incumbent upon us as pharmacists to sort through real science versus misinformation and be a source of truth for consumers seeking the safest, most effective options.
In a major victory for the profession and consumers, pharmacists have been granted authority to order and administer COVID-19 tests and vaccinations, and independents will have access to the vaccines through independent pharmacy network administrators and state health departments. This came after months of communication between NCPA and the Department of Health and Human Services aimed at making sure community pharmacies could have this access. Tens of millions of patients are going to get vaccinated in hopes of finally returning towards a semblance of normalcy. This will be an enormous opportunity for our profession.
Whether for COVID-19 or other illnesses, establishing a community pharmacy-based point-of-care testing program will serve pharmacies into 2021 and long after the pandemic subsides. Progress has been made, but the faster we can expand testing, the sooner we can get back on our feet and the more effectively we can help patients manage and improve their health.
The need for contactless prescription pickup led some consumers to use mail order pharmacy. Unfortunately, delays in package delivery plagued the postal service and commercial carriers, reinforcing NCPA’s position that mail order pharmacy should not be mandatory or economically coerced. The need for immunizations and point-of-care testing further demonstrated the importance of brick-and-mortar pharmacies and the perils of trying to substitute a pharmacy with a mailbox or doorstep.
Mail order market share is still very small relative to brick-and-mortar, even with the pandemic and its stay-at-home guidance. This says to me that when patients can choose between relying on their mailbox or their local pharmacist for pharmacy care, they are continuing to pick their neighborhood pharmacist as the better, more reliable option. In 2021 and beyond, we will keep fighting forced/incentivized mail order (including for past and present members of the military who, ironically, seek to sustain the freedoms our country enjoys but have limited freedom to choose their pharmacy) and pushing for investigations into the cost and safety of mail order prescriptions and the effects of delivery delays on drug safety and efficacy.
PBMs take advantage of the complex, convoluted and confusing prescription drug model to steer customers into mail order plans, just one of their many cloak-and-dagger tactics. On December 10, we were thrilled when the Supreme Court, in a unanimous 8-0 decision, ruled that PBMs could no longer use ERISA as a shield against state regulation.
Chief Justice John Roberts, when the Rutledge v. PCMA oral arguments were finally heard on October 6, described how PBMs use an overly complex payment system to their advantage:
“It’s not the state (of Arkansas’) or the pharmacy’s fault that the PBMs have such Byzantine procedures that affect drug prices.”
Byzantine is right. And their byzantine procedures increase the cost of prescriptions and are manipulated to put their competition out of business.
The state of Arkansas presented a strong case. With its decision in Arkansas’ favor, the highest court in the country has brought PBMs’ questionable practices into the bright light. This is not only a victory for independent pharmacy, but a huge win for our patients.
Now we focus on converting this legal victory into meaningful state regulation. We’ll work with our state partners and state policy makers to restrain the PBMs and hold them accountable. We worked closely with the Arkansas Pharmacists Association on Rutledge and are also offering support to the states of Oklahoma and North Dakota on other similar cases, as we keep battling for a level playing field. North Dakota is asking the Supreme Court to review the 8th U.S. Circuit Court of Appeals judgment in a case similar to Rutledge v. PCMA. Oklahoma is also battling a PCMA lawsuit in the 10th Circuit.
Changing the broken prescription payment model is and has been NCPA’s guiding light for years — a constant even as the world shifted around us in 2020. Our efforts include working to fix pharmacy direct and indirect remuneration fees and to thoroughly rein in PBMs, as a result of Rutledge v. PCMA and by different means. CPESN USA continues to grow and open doors for the value of community pharmacists to be based on the value of their patient care rather than the value PBMs assign to them. Changing the pharmacy payment model means paying pharmacies appropriately for the patient care services they provide, be that their dispensing, immunizing, point-of-care testing or other offerings. And it means making sure patients can choose where they access the care they need and making their care more affordable, safe and reliable.
I think it’s safe to say that many of us look eagerly toward 2021 and putting 2020 behind us. It was a difficult year. Nevertheless, community pharmacy stepped up to the plate as essential businesses, staying open when other health care providers shut down. Our industry’s profile has been heightened, and doors are opening for us as a result. The rest of the country is figuring out what NCPA has known all along, which is that the U.S. must do health care differently in the future. This is an opportunity we won’t let go to waste.
B. Douglas Hoey is the chief executive officer at the National Community Pharmacists Association.
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