On January 2, 2024, the US Court docket of Appeals for the Tenth Circuit (“Tenth Circuit”) denied the State of Oklahoma’s movement for a keep pending attraction to the US Supreme Court docket and one week later transferred jurisdiction again to the district court docket[1] concerning Pharmaceutical Care Administration Affiliation v. Mulready.[2] What this implies is that the Tenth Circuit’s August 2023 ruling putting down provisions of Oklahoma’s Affected person’s Proper to Pharmacy Alternative Act[3] as preempted by the federal Worker Retirement Earnings Safety Act (“ERISA”) and Medicare Half D, stays in impact, and thus Oklahoma could not implement these preempted provisions of its regulation. Arguably, there’s now a circuit break up between the Eighth and Tenth Circuits as to the extent of federal preemption concerning efforts by states to control pharmacy profit managers. Oklahoma is anticipated to attraction to the US Supreme Court docket.[4] Whether or not or not the Supreme Court docket will select to just accept the case is unsure.
Procedural Recap
In April 2022, the US District Court docket for the Western District of Oklahoma dominated largely in favor of Oklahoma’s Affected person’s Proper to Pharmacy Alternative Act, upholding a lot of the act towards federal preemption whereas discovering that some provisions are preempted by Medicare Half D. In August 2023, the Tenth Circuit reversed, discovering the disputed provisions preempted by each ERISA and Medicare Half D. In December 2023, the Tenth Circuit denied Oklahoma’s petition for en banc rehearing. Days later, Oklahoma filed a movement to remain the mandate and the Pharmaceutical Care Administration Affiliation (“PCMA”) filed its opposition 10 days later. As famous above, 5 days later the Tenth Circuit denied Oklahoma’s movement to remain pending attraction. A petition for certiorari to the US Supreme Court docket has not but been filed however is presumed per the submitting to remain the mandate.
Current Filings
Final month, Oklahoma filed a movement to remain the mandate, which if granted, would have functionally put the Tenth Circuit’s determination on maintain whereas Oklahoma appeals to the Supreme Court docket. Earlier this month, the Tenth Circuit denied that movement. A circuit court docket of appeals could grant a movement to remain a mandate pending a petition for certiorari when (a) the petition presents a “substantial query” and (b) there’s good trigger for a keep. Moreover, a keep “in a civil case is not going to be granted until the court docket finds there’s a substantial chance {that a} petition for writ of certiorari can be granted.”[5] The Tenth Circuit dominated that Oklahoma didn’t meet these necessities.
What’s Subsequent
The large query stays to be answered: will the Supreme Court docket grant certiorari? The extent of ERISA or Medicare Half D preemption as to pharmacy profit managers (“PBMs”) is a matter of nice public import as evidenced by the 49 amicus curiae, together with the US, 34 states,[6] the District of Columbia, and 13 commerce associations. In latest years, all 50 states have taken some extent of motion to control PBMs, many in reliance upon the Supreme Court docket’s unanimous 2020 determination in Rutledge.[7] The attain of that call seems unsure and thus the Supreme Court docket might have to step again into the fray.
[1] United States District Court docket for the Western District of Oklahoma.
[2] Pharm. Care Mgmt. Ass’n .v Mulready, 78 F.4th 1183 (tenth Cir. 2023), en banc listening to denied Dec. 12, 2023.
[3] Okla. Stat. tit. 36, §§ 6958 et seq.
[4] Each the Oklahoma Legal professional Common and Insurance coverage Commissioner have publicly said that they are going to attraction to the Supreme Court docket. See, https://www.oid.ok.gov/release_082123/.
[5] tenth Cir. R 41.1(B).
[6] The USA and every of the next 34 states as amicus curiae in help of Oklahoma: Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, and Washington.
[7] Rutledge v. Pharm. Care Mgmt. Ass’n, 141 S. Ct. 474 (2020).
