Phar­ma­cists file brief to back law

Chal­lenged 2015 statute af­fects re­im­burse­ments for generic drugs

Northwest Arkansas Democrat-Gazette - - NORTHWEST ARKANSAS - LINDA SATTER

The Arkansas Phar­ma­cists As­so­ci­a­tion and the Na­tional Com­mu­nity Phar­ma­cists As­so­ci­a­tion have filed a “friend of the court” brief in sup­port of Arkansas’ chal­lenged 2015 law that gov­erns how phar­ma­cists are re­im­bursed for generic drugs.

On March 1, Chief U.S. District Judge Brian Miller threw out a law­suit filed in Lit­tle Rock by the Phar­ma­ceu­ti­cal Care Man­age­ment As­so­ci­a­tion, a Wash­ing­ton, D.C.-based na­tional trade group that said Act 900 of 2015 was sim­ply a way for phar­ma­cists to make more money at the ex­pense of ben­e­fits plans.

The as­so­ci­a­tion said the law would re­sult in higher costs for the plans and pa­tients, and that it disrupts the uni­for­mity that “max­i­mum al­low­able costs” lists pro­vide for phar­macy net­works across the coun­try.

The as­so­ci­a­tion ap­pealed part of Miller’s or­der to the 8th U.S. Cir­cuit Court of Ap­peals in St. Louis, and Arkansas At­tor­ney Gen­eral Les­lie Rut­ledge filed a cross-ap­peal.

The state and na­tional phar­ma­cist groups an­nounced Fri­day they have also filed a brief in the case at the 8th Cir­cuit.

The groups said Act 900 was passed by state law­mak­ers in “re­sponse to the un­reg­u­lated drug mid­dle­men known as phar­macy ben­e­fit man­agers (PBMs) who for years have used pric­ing mod­els that con­sis­tently left phar­ma­cists pay­ing more for pre­scrip­tion med­i­ca­tions than they were re­im­bursed for from the PBMs.”

“Year af­ter year, PBMs chip away at Arkansas’ phar­ma­cists’ abil­ity to cover the costs of life-sav­ing med­i­ca­tions so that the drug mid­dle­men can line their pock­ets and sat­isfy in­vestors,” the an­nounce­ment said, quot­ing Scott Pace, the chief ex­ec­u­tive of­fi­cer and ex­ec­u­tive vice pres­i­dent of the Arkansas Phar­ma­cists As­so­ci­a­tion.

The as­so­ci­a­tion ap­pealed part of Miller’s or­der to the 8th U.S. Cir­cuit Court of Ap­peals in St. Louis, and Arkansas At­tor­ney Gen­eral Les­lie Rut­ledge filed a cross-ap­peal.

In grant­ing sum­mary judg­ment — a rul­ing based purely on the law, with­out a need for tes­ti­mony — Miller noted that “in­de­pen­dent com­mu­nity phar­ma­cies have had to elim­i­nate em­ploy­ees dur­ing the last five to 10 years due to the fi­nan­cial hard­ships they have faced. The Arkansas leg­is­la­ture passed and amended Arkansas Code An­no­tated sec­tion 17-92-507 in an at­tempt to ad­dress this is­sue.”

He did side with the ben­e­fits man­agers, how­ever, on their ar­gu­ment the Arkansas law is in­valid as ap­plied to their ad­min­is­tra­tion and man­age­ment of plans gov­erned by the Em­ploy­ment Re­tire­ment In­come Se­cu­rity Act of 1974.

Miller said he be­lieved the state law didn’t in­ter­fere with, or pre-empt, the fed­eral law, but be­cause the 8th Cir­cuit had re­versed an­other judge’s sim­i­lar rul­ing, he tai­lored his rul­ing ac­cord­ingly.

The phar­ma­cists as­so­ci­a­tions said Fri­day that Act 900 “es­tab­lished ap­peals stan­dards for Arkansas phar­ma­cies” when the ben­e­fits man­agers set the re­im­burse­ment rates for generic med­i­ca­tions below the drug ac­qui­si­tion cost of the phar­ma­cies, “resulting in phar­ma­cists los­ing money in or­der to fill a pre­scrip­tion.”

They called Act 900 “a nec­es­sary law that places ba­sic pro­tec­tions in place for re­tail phar­ma­cies in Arkansas from below-cost re­im­burse­ment.”

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