OK | On August 15th, the Tenth Circuit Court of Appeals released their opinion Pharmaceutical Care Management Association v. Glen Mulready, severely diminishing the State of Oklahoma’s ability to effectively regulate pharmacy benefits managers.
The Patient’s Right to Pharmacy Choice Act (“Act”) was passed by the Oklahoma legislature in 2019 with the stated purpose of establishing minimum and uniform access by patients to pharmacy providers. This purpose is in part achieved by four provisions of the Act known as Access Standards, the Discount Prohibition, the Any Willing Provider provision, and the Probation Prohibition, which act in concert to enhance the bargaining power of independent pharmacies with PBMs and ensure patients’ access to their pharmacies of choice.
Since the Act has been in effect, these four provisions have been the subject of litigation in federal court, PCMA v. Glen Mulready. In its decision last week, the Tenth Circuit Court of Appeals concluded that these four challenged provisions are preempted by ERISA and Medicare Part D and, therefore, cannot be applied when self-funded employer-sponsored health plans and Medicare plans cover prescription drug costs.
“The decision from the Tenth Circuit bolstering the power of PBMs in the prescription drug market is disappointing and will be appealed,” Mulready said. “Enforcement of the Act will continue to the maximum ability of state law. I have been working closely with Attorney General Gentner Drummond since the close of Oklahoma’s Legislative session to ensure a smooth transition of PBM oversight to the Office of the Attorney General.”
“I believe it is in the best interests of Oklahomans to appeal this ruling,” said Drummond. “While I respect the Tenth Circuit Court of Appeals, I disagree with their decision in this matter. I believe it is clear that the U.S. Supreme Court’s unanimous decision in Rutledge v. PCMA allows states to regulate pharmacy benefit managers and hold them to account when appropriate. I greatly appreciate the dedication of Commissioner Mulready and his staff, who remain committed to securing the best outcome for the People of Oklahoma.”