Oklahoma Prepared to Enforce Patient Right to Pharmacy Care Act Amid COVID-19 Concerns
In May 2019, Oklahoma passed the Patient Right to Pharmacy Care Act (“Act”). The Act takes aim at unfair pharmacy benefit manager (“PBM”) practices by expanding network access for independent pharmacies, prohibiting PBMs from requiring patients to use pharmacies that are owned or affiliated with PBMs, prohibiting PBMs from providing higher reimbursement to PBM-owned pharmacies, and charging post-point-of-sale fees after claims have already been paid. These are crucial protections to independent pharmacies throughout Oklahoma.
Prior to the Act taking effect in November 2019, Pharmaceutical Care Management Association (“PCMA”), a powerful PBM lobbying group, sued to prevent the Act from being enforced in the case PCMA v. Mulready. In response to PCMA’s lawsuit, the parties entered into an agreement to stay the legal proceedings related to the Act pending the outcome of a separate, but related, case currently before the Supreme Court of the United States (“SCOTUS”), Rutledge v. PCMA.
In Rutledge, the State of Arkansas enacted a law designed to combat improper PBM practices, including practices pertaining to MAC reimbursement. The Eighth Circuit ultimately held that Arkansas’s law was preempted under Medicare and ERISA which led to SCOTUS granting Arkansas’s petition for a writ of certiorari. Prior to COVID-19, oral argument before the SCOTUS in Rutledge was set for April 27, 2020 and Oklahoma expected a decision during the SCOTUS’s October term—a decision that was expected to resolve any challenges with respect to Oklahoma’s law. However, the COVID-19 pandemic has delayed oral argument at least until the Court’s October term, and a decision on the case is not likely until 2021. Among SCOTUS’s considerations in Rutledge is an amicus curiae brief submitted by Frier Levitt in support of Rutledge.
Based on this substantial change in the timing of Rutledge, on April 7, 2020, Oklahoma advised the District Court and PCMA that it planned to withdraw from the agreement to postpone enforcement of the Act and asked the Court to lift the stay, allowing the case to proceed. One of Oklahoma’s main goals was ensuring that during the national health emergency, it had “all the regulatory tools at its disposal to protect Oklahomans going forward, particularly Oklahoma’s vulnerable populations.”
On April 22, 2020, the Court lifted the stay, paving the way for Oklahoma to begin enforcing the Act effective May 13, 2020, unless PCMA moves for a preliminary injunction. As of April 28, 2020, PCMA has not moved for an injunction, but it still may do so. If an injunction request is not filed or sought but denied, Oklahoma will soon begin enforcing the Patient Right to Pharmacy Care Act.
How Frier Levitt can Help
Frier Levitt is closely monitoring this case and the impact it will have on Oklahoma pharmacies. If you have questions about the Act’s applicability to your Pharmacy or other legal remedies available to your Pharmacy to combat improper PBM practices, including direct and indirect remuneration (“DIR”) fees and improper maximum allowable cost (“MAC”) reimbursement, contact Frier Levitt to speak with an attorney today.