Advance Notice: Briefs

U.S. Supreme Court rules against pharmacy middlemen

By: - December 10, 2020 1:36 pm

U.S. Supreme Court | Robin Bravender

The U.S. Supreme Court on Thursday ruled 8-0 that states have broad powers to regulate powerful pharmacy middlemen without being preempted by federal law.

The case was brought by the $400-billion-a-year industry, known as “pharmacy benefit managers,” against the state of Arkansas over a 2015 law that set a minimum, market-based rate the middlemen had to reimburse pharmacists for the drugs they dispensed.

More than 70% of the industry is controlled by three corporations: CVS Caremark, Express Scripts and OptumRx. 

Its critics say those companies are often in direct competition with retail pharmacies and they use obscure, anti-competitive reimbursement practices to underpay them. This has resulted in driving many community pharmacists out of business and depriving many small communities of pharmacy access, Arkansas Attorney General Leslie Rutledge argued.

The U.S. Solicitor General and 46 other state attorneys general, including Michigan, signed up to help defend Rutledge in the case brought against her by the PBM industry group, the Pharmaceutical Care Management Association.

Supreme Court hears arguments over states’ ability to regulate drug costs

That group argued that the Arkansas law was unconstitutional because it preempted the Employee Retirement Income Security Act — or ERISA — a federal law that regulates major employer health plans. PCMA argued that Arkansas was regulating the health plans by imposing minimum reimbursements for drugs on the PBMs.

The Supreme Court disagreed.

“State rate regulations that merely increase costs or alter incentives for ERISA plans without forcing plans to adopt any particular scheme of substantive coverage are not preempted by ERISA,” Associate Justice Sonia Sotomayor wrote for the court.

Justice Amy Coney Barrett didn’t participate in the case because she wasn’t yet on the court when oral arguments were held in early October.

PCMA, the industry group, said the ruling could erode protections for health plan beneficiaries and drive up drug costs.

“We are disappointed in the Court’s decision that will result in the unraveling of federal protections under the Employee Retirement Income Security Act of 1974,” it said in a statement. “As states across the country consider this outcome, we would encourage they proceed with caution and avoid any regulations around prescription drug benefits that will result in higher healthcare costs for consumers and employers.”

A national group representing small pharmacists was ecstatic.

“This is a historic victory for independent pharmacies and their patients. And it confirms the rights of states to enact reasonable regulations in the name of fair competition and public health,” said National Community Pharmacists Association CEO B. Douglas Hoey.

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Marty Schladen
Marty Schladen

Marty Schladen has been a reporter for decades, working in Indiana, Texas and other places before returning to his native Ohio to work at The Columbus Dispatch in 2017 and coming to the Ohio Capital Journal in 2020. He's won state and national journalism awards for investigations into utility regulation, public corruption, the environment, prescription drug spending and other matters.

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