Another Legal Win: Eighth Circuit Affirms
States Abilities to Regulate PBMs
NCPA and other pharmacy organizations are cheering a decision by the 8th Circuit of the U.S. Court of Appeals on Wednesday supporting North Dakota’s right to regulate PBMs. The case, Pharmaceutical Care Management Association v. Wehbi, is the first to consider at the federal appellate level the scope of the U.S. Supreme Court’s decision last year in Rutledge v. PCMA, which upheld an Arkansas state law regulating the abusive practices of PBMs. The decision has implications far beyond North Dakota. With many states actively seeking to regulate PBMs, the ruling clears the way for all states to regulate many PBM practices that PCMA argued were exempted by ERISA. Additionally, the court found that certain PBM practices within Medicare can also be regulated by the states. NCPA’s participation in landmark cases such as this is possible through the NCPA Legislative/Legal Defense Fund. Here’s how you can invest in the fund.
Sen. Wyden Meets with NCPA Leadership
and Visits Oregon Pharmacies
NCPA President Michele Belcher, owner of Grants Pass Pharmacy in Grants Pass, Ore., CEO Douglas Hoey and Senior Vice President of Government Affairs Karry La Violette met with Sen. Ron Wyden (D-Ore.), who serves as chairman of the Senate Finance Committee, this week. The discussion centered around NCPA priorities, including pharmacy DIR fees, and the path forward on including them in the Build Back Better Act. This meeting came on the heels of two visits Sen. Wyden made last week to Rice’s Pharmacy & Gifts in Corvallis, Ore. and Ashland Drug in Ashland, Ore.to discuss drug pricing issues.
Senate Holds Hearing on FTC Nominee Alvaro Bedoya
On Wednesday, the Senate Commerce Committee held its nomination hearing for FTC nominee Alvaro Bedoya. In his opening statement, Mr. Bedoya endorsed prioritizing smaller competitors over larger incumbents. In a strong nod to independent pharmacy our cause, Mr. Bedoya said in his opening statement to the Committee, “Small business owners struggling in the face of unprecedented consolidation. On this last point, I’ll just give one example. We spend a lot of time with family in Louisiana. A lot of them are in healthcare. And they talk about how when a hurricane comes through, the last pharmacies to close and then the first to re-open, are independent pharmacies. These community pharmacies are critical to rural America and urban America. And yet it’s precisely these pharmacies that are shutting down due to unprecedented consolidation.”
NCPA Member Highlights PBM Abuses
at Congressional Forum
NCPA member Jonathan Grider testified at a congressional forum on Wednesday that was hosted by House Committee on Oversight and Reform Ranking Member James Comer (R-Ky.). The forum focused on the role of PBMs in increasing drug prices. Grider is a third-generation pharmacist and owner of Lake Cumberland Pharmacy, with two locations in Russell Springs, Ky. His retail pharmacies serve a rural county with a population of roughly 15,000 people with limited access to care. You can watch the forum here and view Grider’s written statement here.
New Jersey Enacts Medicaid Pharmacy Benefit
Transparency Law
New Jersey Governor Phil Murphy (D) signed S249/A1259 into law. The bill requires PBMs serving the state’s Medicaid managed care program to disclose all sources and amounts of financial benefits received, all payments made by the PBM to pharmacies, and the PBM’s payment model for administrative fees.
Provider Relief Fund: Report by November 30 or Return Funds
For any funds received during the April 10 and June 30, 2020 under the HHS/HRSA Provider Relief Fund (PRF), compliance with reporting requirements was due on October 29, 2021 with a 60 day grace period. However, that grace period concludes on the 30th and providers will not be able to submit a report after that date. Noncompliance with that deadline could result in further enforcement actions such as repayment or exclusion from future PRF payments. If you are delinquent with your report, please visit the PRF Reporting Portal and submit your report. If there are any unused funds, those must be returned by December 30, 2021.
OSHA Suspends Implementation of Vaccine Rule
With the stay of the 5th Circuit in effect, OSHA has suspended all activitiesregarding implementation of the vaccine mandate for private businesses. Under the Emergency Testing Standard, which was published on November 5, 2021, businesses employing more than 100 workers are mandated to develop and implement a mandatory vaccine policy or adopt a vaccination policy along with a testing and face covering mandate. Businesses which do not comply face significant fines – resulting in a number of challenges in Federal Court. These challenges have been consolidated into a matter before the 6th Circuit Court for a decision on the merits of the Administration to enact such a mandate and await further action in the litigation. View the updated report on New Rules for Mandatory Vaccines here.
House Passes Build Back Better Act
This morning, the House passed its version of the Build Back Better Act on a party line 220-213 vote, with one Democrat, Rep. Jared Golden (D-Maine) joining Republicans in voting against the bill. The bill now heads to the Senate where changes are highly likely before it comes to the floor next month at the earliest.
NCPA Legal Wins and the Lasting Impact on your Business
Webinar Available Online
If you missed Tuesday’s webinar with Robert T. Smith, Partner at Katten Muchin Rosenman LLP, and Matt Walker, Executive Director for the West Virginia Independent Pharmacy Association, you can catch it online here. They spoke about the legal landscape after last year’s Supreme Court decision in Rutledge v. PCMA and how states like West Virginia can use that decision to craft new laws regulating PBMs. As we heard on the webinar, cases like Rutledge have been a game changer for community pharmacy allowing for the Eighth Circuit to affirm North Dakota’s right to regulate PBMs in PCMA v. Wehbi. Smith was the attorney who argued North Dakota’s case in PCMA v. Wehbi. Thank you again to our sponsors, RxSafe, Liberty Software, Datarithm, and Value Drug Company, for your generous support of NCPA’s Legislative/Legal Defense Fundand for helping to make this a successful event. If you have not done so, please consider donating to the NCPA LDF here or by texting LDF to 703- 783-9397 to support NCPA’s ongoing fight against the PBMs and their egregious business practices.
CVS Drops Lawsuit Weeks Before Supreme Court Arguments
Last week, the CVS reached an agreement with a group of disability rights organizations and dropped a case that was set to be heard by the U.S. Supreme Court in December. The company formally withdrew its complaint last Thursday and announced plans to work with four disability rights groups. The case, CVS Pharmacy, Inc. vs. Doe, stemmed from a lawsuit filed against CVS by multiple people who take prescription drugs for HIV/AIDS. The plaintiffs objected to terms that would not allow them to opt out of mail-only delivery or use another pharmacy with experience handling their special medication needs. They argued it had a discriminatory impact on them, even if that wasn't the company's intent. Read more about the case here.
NCPA Provides Comments to CMS on Parts C&D
Data Validation and Transparency in Coverage
This week, NCPA commented to CMS on an information request for Part C and D data validation and a new requirement on data submission for the Transparency in Coverage rules. NCPA encouraged CMS to address issues related to Part D validation and incorrect information gathered and displayed in the Medicare Plan Finder related to community pharmacy. For the Transparency in Coverage, NCPA requested that CMS include pharmacy DIR fees in their calculations. Additionally, NCPA highlighted the potential for issues regarding confusing bona fide service fees with rebates. NCPA will continue to work with the Administration to bring transparency to the drug supply chain and highlight the costs incurred by patients as a result of PBM.
NCPA State Legislative Activity Update
NCPA tracks state legislation related to our top three state priorities: Medicaid reform, scope of practice and compensation for services, and PBM reform and regulation. Click each issue for a report of bills that have been introduced so far this session specifically dealing with these three issue areas. You can access the individual bill language and basic information on the bill by clicking on the bill numbers in the attached report. Bills that have moved this week are listed at the top in the “Recently Updated” section.
Due to the holiday, there will not be an Advocacy Center Update on November 26. It will resume on December 3.
NCPA’s Advocacy Center Update provides a weekly detailed summary of recent and breaking legislative, regulatory, and state developments impacting independent community pharmacy and NCPA’s efforts to affect policies benefitting its membership and the industry. The weekly update is distributed to NCPA leadership, steering committees, allied organizations/stakeholders and major contributors to the NCPA LDF and PAC. The weekly update is intended exclusively for the recipient and is not for external distribution.