NCPA Executive Update

NCPA Executive Update delivers insights on legislative, regulatory, policy, and industry developments from NCPA CEO B. Douglas Hoey, Pharmacist, MBA, to NCPA members and pharmacy leaders every other Friday.

As the nation watches, we take PBMs to the big game | NCPA Executive Update | January 24, 2020

by NCPA | Jan 24, 2020

Dear Colleague,

Doug Hoey

At his 2005 Senate confirmation hearing, Supreme Court Chief Justice nominee John Roberts famously said, "Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire."

Two weeks ago today we got the news that the Supreme Court will hear the Rutledge v. PCMA case. This case marks the first time in history that the high court will rule on a case involving PBMs. We are hopeful that the court, to paraphrase Roberts, will actually require PBMs to play by the rules!

NCPA, working collaboratively with our partner, the Arkansas Pharmacists Association, allowed ourselves to briefly celebrate before quickly focusing on the task at hand. NCPA and APA jointly commissioned an amicus to support Arkansas Attorney General Leslie Rutledge's appeal to enforce the 2015 pro-pharmacy, pro-consumer legislation that prohibited PBMs from paying pharmacies below cost and allowed pharmacies to refuse to dispense below cost prescriptions. While the case involves an Arkansas law, this Supreme Court appeal poses an impact on the pharmacy community throughout the entire country.

Two days ago, NCPA and APA hosted a webinar for NCPA members to discuss this unprecedented opportunity to clarify ERISA's impact on state laws. (Look for a link to the webinar in qAM next week.) Over time, PBMs have tried to broaden the fuzzy boundaries of ERISA preemption to undermine and subvert state laws that demanded transparency, oversight, and accountability from PBMs while simultaneously disavowing any regulatory state mandates governing the insurance industry. The Supreme Court's decision to rule on this case will help clarify, one way or the other, the double standard PBMs declare when state laws are passed that would provide much needed oversight.

The path to the highest court in the land was not a straight line or a smooth path. It reflects over a decade of persistence. NCPA's involvement in PBM-related legal cases began 15 years ago, and NCPA's efforts and collaboration with APA began nearly five years ago. And between those points, NCPA worked to support other states and state pharmacy association efforts to regulate PBMs. Before this Supreme Court appeal, there were setbacks along the way, including disappointing decisions from the lower courts in Arkansas. Through it all, NCPA and APA persisted. A BIG thank you to Rutledge for her gutsy decision to appeal to the Supreme Court. NCPA is also grateful to the 32 state attorneys general who supported this appeal and the U.S. Department of Justice's Office of Solicitor General's agreement that the Rutledge case should be ruled upon by the Supreme Court.

This is the biggest court fight for community pharmacies since NCPA and NACDS were forced to sue CMS 12 years ago to stop the improper interpretation and implementation of a new payment policy for pharmacies dispensing generics to Medicaid patients that one analysis said would have wiped out over 10,000 pharmacies. We were successful in winning a temporary restraining order to save consumer access to those 10,000-plus pharmacies along with billions of dollars in payment cuts the pharmacies would have suffered.

One of the takeaways from last Wednesday's webinar was the well-intentioned desire to help. Some asked about sending letters directly to the Supreme Court justices. Don't. That's not how the Supreme Court works and may undermine our advocacy efforts. Other participants expressed a desire to send their own amicus to the Supreme Court. Anyone or any group interested in pursuing an amicus brief should coordinate through NCPA and APA prior to proceeding. It is imperative we all work together and coordinate to do our best to ensure success on the merits. Without this coordination, an errant amicus may hurt this appeal's likelihood of success.

So, please don't write letters to the Supreme Court advocating for Arkansas. Please do not file or pursue an independent amicus brief without notifying NCPA and APA. We must focus on putting the best case forward and working with one voice to achieve success. We are relying on your support of NCPA and APA's amicus brief to achieve this goal.

The best way to help is to support the APA Legislative/Legal Defense Fund and NCPA Legislative/Legal Defense Fund to help defray the sizable expenses associated with the past, present, and future costs of this case.

It's been a wild game to get to this point. The good guys (NCPA, APA, community pharmacy) have been down but never out. And we have made a big comeback as the game heads into the ninth inning. The chief justice and his colleagues will be behind the plate calling it as they see them. And while no one typically goes to the game to watch the umpire, we will be hanging on their every word and doing all in our power to swing for the fences.


Doug Hoey


Douglas Hoey, Pharmacist, MBA