The Underdog Lands a Punch
Dear Colleague,
Last week a U.S. District Court granted Iowa's motion to dismiss all remaining claims challenging the state's recently enacted maximum allowable cost (MAC) transparency law. Earlier this year, the same court dismissed four other claims made by the Pharmaceutical Care Management Association (PCMA).
This case and others will be examined at
NCPA's Annual Meeting, Oct. 10-14, just outside of Washington, D.C., in a session titled, "
Top 10 Recent Legal Developments Impacting Community Pharmacy Practice." That's one of many programs and activities that will be at the Annual Meeting to benefit your business and even more so, will benefit you. There's still time to
register for the whole program or even for just one day if your schedule is tight.
For background, the Iowa state legislature unanimously passed HF 2297, and it went into effect June 1, 2014. The law requires that PBMs be transparent about their methodology for determining MAC reimbursement for generic drugs to the state Insurance Commissioner and utilize nationally recognized data when setting MACs. The law also requires PBMs to disclose which data they use in calculating reimbursement amounts in any contracts with Iowa pharmacies and gives pharmacies a chance to contest the reimbursement amount.
The corporate PBM lobby with their deep pockets has been battling against state MAC legislation throughout the country for the last several years. Nevertheless, 24 states have enacted MAC legislation.
We believe that success is due to the hard work of the pharmacists in those states and their state associations with support from NCPA and other pharmacy stakeholder groups. Perhaps even more importantly, we think that state legislators have passed these bills because the business relationship between the PBMs and community pharmacies is so incredibly one-sided that it raises concerns about the PBM business model and the long-term ability of pharmacies to continue to provide necessary and valuable health care services and products to patients in those states.
The PBM corporations are nothing if not clever (or maybe just plain sneaky), and in most states they have found work-arounds, inserted neutralizing language in some of the bills, or just simply chose to ignore the legislation. NCPA is continuing to work with state partners to not only enact effective legislation, but also ensure that previously enacted legislation is reasonably enforced by state officials.
But Iowa's legislation was a little different than most. Different enough that the PBM lobby filed a lawsuit. And the court dismissed all of PCMA's claims.
A tip of the hat goes to the Iowa Pharmacy Association's (IPA) Board and Kate Gainer, the association's CEO, for their leadership and willingness to support the state's defense of its law. NCPA worked closely with IPA supporting its efforts and assisted with unifying and coordinating the efforts of other community pharmacy stakeholders who contributed to the cause.
Don't be surprised if the PBM lobby tries to keep the case going in Iowa by appealing the decision. They have also filed a lawsuit last month against Arkansas, challenging that state's MAC legislation that gives it some modicum of oversight over the PBMs. Also, in Ohio, which enacted MAC disclosure legislation to both the pharmacy and plan sponsors, some PBMs have taken preemptive steps to work around the intent of the law through particular contracting terms.
Litigation is expensive. It's also nerve-wracking because there is always an element of uncertainty as to how a judge or jury may rule. "Right" is on pharmacy's side, though. It's on the side of patients as well.
Perhaps the judge in the Iowa case said it best when he concluded that ". . . the State has an established interest in protecting and promoting the health of its citizens." Yes, it does. And so does community pharmacy. Both won last week.
Best,
Doug Hoey