On November 21, 2025, Oklahoma Attorney General Gentner Drummond (“AG Drummond”) issued a forceful cease-and-desist letter ordering OptumRx (“Optum”) to immediately stop what his office characterized as unlawful “retroactive reimbursement clawbacks” from pharmacies in the state. The directive followed OptumRx’s attempt to reverse previously paid pharmacy claims after the company discovered that it had been using an incorrect Maximum Allowable Cost (“MAC”) list for several months during 2025. Rather than notifying pharmacies or providing an opportunity for administrative review, Optum allegedly attempted to unilaterally “rerun” claims and seize back what it deemed overpayments.
According to AG Drummond’s notice, this practice not only violated Oklahoma’s PBM regulatory framework, but was also deceptive, discriminatory, and “entirely attributable to OptumRx’s own internal errors.” AG Drummond warned that if Optum continued the practice, the company could face penalties of up to $10,000 per violation, restitution obligations, and possible license suspension or revocation within the state.
From the vantage point of pharmacies, health-plan clients, PSAOs, or entities engaged in PBM oversight, this action is significant for both immediate and historical reasons. First, it reinforces the trend of highly active PBM enforcement by state bodies; second, it signals an emerging federal liability frontier that PBMs may soon face, particularly when retroactive adjustments, false price benchmarks, or opaque reimbursement practices cause damage to state programs, plan sponsors, or consumers.
Oklahoma’s Action in Context: Movement Against Negative Reconciliation
Across the United States, state legislatures have spent the past decade constructing increasingly sophisticated regulatory structures governing how PBMs may reimburse pharmacies, audit claims, or reconcile payments.
A key part of this trend has been the prohibition of “negative reconciliation,” or, in other words, a practice involving the recoupment of funds after the initial claim adjudication. This can occur based on effective rate agreements, retrospective pricing changes, MAC updates, or internal corrections like the one Optum described in Oklahoma.
At present, more than half the country has enacted statutes explicitly barring PBMs from retroactive reimbursement adjustments except in narrow circumstances, such as fraud, abuse, or intentional misrepresentation. Nearly all states now require licensure or registration of PBMs, and many regulate routine practices by PBMs such as MAC-list methodology, transparency, audit standards, spread pricing, and payment floors.
The U.S. Supreme Court’s 2020 decision in Rutledge v. PCMA accelerated this movement by affirming that states may regulate PBM reimbursement practices without violating ERISA preemption, empowering legislatures to enact reforms that once seemed legally precarious. After Rutledge, state PBM laws not only surged in number; they became more aggressive in addressing reimbursement and clawback conduct that legislators rightly viewed as harmful to independent pharmacies and consumers.
Against this backdrop, Oklahoma’s cease-and-desist letter is not an isolated enforcement action. It is a clear signal that states intend to actively police the anti-clawback rules they have enacted.
Why Retroactive Clawbacks Are So Problematic for Pharmacies
From the viewpoint of pharmacies, the significance of AG Drummond’s order cannot be overstated. Retroactive clawbacks can impose massive financial instability. Pharmacies often operate on thin margins; an abrupt demand for repayment could threaten their ability to meet payroll, maintain inventory, or even stay in business.
On the PBM side, the message is equally clear: traditional PBM practices, such as retroactively recouping overpayments based on effective rate true-ups, using opaque MAC adjustments, or engaging in spread pricing, must stop to ensure compliance with state law. For these reasons, legislatures in states like Arkansas, Kentucky, Maine, New York, Louisiana, and Oklahoma treat retroactive reductions not merely as business disputes but as unfair or deceptive practices subject to regulatory penalties.
The Federal Exposure PBMs May Face: False-Claims, Consumer-Fraud, and Regulatory Theories
While most legal debates over PBM reimbursements have historically played out at the state level, the Oklahoma action raises an increasingly relevant question:
- Could PBMs face federal enforcement liability for clawback practices that affect Medicare Part D, Medicaid managed care, FEHBP plans, TRICARE, or ERISA plans?
There are several pathways by which this could occur.
- False Claims Act (“FCA”) Exposure
If a PBM’s reimbursement methodologies, MAC calculations, or retroactive recoupment practices cause false or inflated claims to be submitted to federally funded health programs, the PBM could face FCA theories such as:
- False certification — attestations that pricing methodologies comply with state law or CMS guidance when they do not.
- Retention of overpayments — retaining funds to which the entity is not entitled after learning of an error (“reverse false claims”).
- Causing the submission of false claims — when plan sponsors or pharmacies submit claims influenced by artificial pricing metrics manipulated by a PBM.
Because many Medicaid and Medicare Part D plans rely on MAC lists and reimbursement structures, a systemic error or undisclosed retroactive adjustment can create FCA exposure far beyond state-level penalties.
- Federal Consumer-Protection Liability
The Federal Trade Commission has already announced broad investigations into PBM practices. Retroactive clawbacks fit well within the FTC’s mandate to police “unfair or deceptive acts or practices.”
The FTC’s ongoing study of PBM business models may signal future enforcement actions involving:
- hidden pricing algorithms;
- effective rate negative reconciliations on a claim-level basis;
- undisclosed spread pricing;
- materially misleading use of MAC lists; and
- abusive contract terms or unilateral payment reductions.
- ERISA Fiduciary-Duty Theories
While PBMs typically disclaim fiduciary status, federal courts increasingly scrutinize PBM conduct that affects plan assets. A PBM that manipulates pricing benchmarks, conducts backdoor reconciliation without disclosure, or fails to follow contractually stated pricing methodologies may face allegations that it functioned as a de facto fiduciary.
Conclusion: A Turning Point for PBM Accountability
AG Drummond’s cease-and-desist letter to Optum is not merely an administrative reprimand; it is a marker of a deeper shift in PBM oversight. States are no longer content with passive regulation; they are exercising enforcement powers with real fiscal and operational consequences. As PBM practices increasingly intersect with federally funded programs, federal exposure is becoming an equally serious risk.
Pharmacies that believe their PBMs are engaging in unlawful retroactive clawbacks should immediately seek to remedy these situations pursuant to their relevant state applicable statutes. To present the best case, each pharmacy should: (1) demand written notice and supporting documentation from PBMs; (2) notify state PBM regulators; (3) preserve all evidence such as pricing updates, remittance advices, and system logs; (4) initiate formal appeals under PBM contracts and state laws; and (5) instruct PBMs not to offset ongoing claims.
As experienced counsel dealing with nationwide PBM regulations, Frier Levitt is well positioned to aid pharmacies in maximizing the enforcement of their rights to receive fair treatment from PBMs.
