캘리포니아 한인 약사회 회원들께:

 

이미 소식을 접하고 알고 계신 분들도 있을테지만 중요한 소송이어서 여기에 올립니다.

 

배경:

2015년에 Arkansa주에서 PBM들이 under-cost로 약국들에게 reimbursement를 못하도록 하는 주법안을 통과 시켰습니다. 하지만 PBM의 로비 단체인 PCMA (Pharmaceutical Care Management Association)에서 "PBM은 ERISA의 적용을 받는 연방 정부 법의 적용을 받는 단체이기 때문에 주정부에서 규제하는 것은 부당하다" 는 내용으로 법 집행 정지를 요청했고 이게 받아들여졌습니다.

 

여기에 대해 Arkansa Pharmacist Association (APA) 에서 이게 부당하다고 연방 법원에 소송을 제기 했고, 여기에 APhA, NCPA 그리고 대부분의 주단위 약사단체들 National Alliance of State Pharmacy Associations (NASPA) 에서 소송에 같이 참여하게 됩니다.

 

그럼 ERISA란 무엇인가요?

라고 궁금해 하시는 분들이 있을 겁니다.

1974년에 통과 되었으며, 원래 취지는 회사 단위의 연금 (pension), 은퇴 후 직장에서 제공하는 의료 보험 등에 대해 연방 정부 차원에서 최소한의 기준을 제공하는 법안입니다. 그래서 주정부의 법률의 영향을 받지 않고 연방법으로 최소한의 기준을 정하게 되어 있습니다. 

 

The Employee Retirement Income Security Act of 1974 (ERISA) (Pub.L. 93–406, 88 Stat. 829, enacted September 2, 1974, codified in part at 29 U.S.C. ch. 18) is a federal United States tax and labor law that establishes minimum standards for pension plans in private industry...............

......ERISA exempts health insurance plans from various state-specific laws, particularly contract and tort law, to create federal uniformity;[12] as of 2017, about 60% of insured employees in the US were in self-funded plans subject to ERISA.[13] ERISA has led to tension with reforms which partner with the states, such as the Patient Protection and Affordable Care Act.[14].......

 

연방정부 대법원 (Supreme Court of the United States; SCOTUS) 에서 양측의 주장을 듣는 날이 4월 27일이며 6월 중에 판결이 날 걸로 예상 되고 있습니다.

 

이 소송에서 Arkansa Pharmacists Association이 이기게 되면 PBM을 주정부 단위에서 규제할 수 있는 근거가 마련됩니다.

 

Sean Kim, Pharm.D

Vice President

CKAPhA

 

=========================================================================================

 

https://www.pharmacist.com/press-release/apha-joins-pharmacy-groups-fight-pbms-landmark-supreme-court-case

 

APhA Joins Pharmacy Groups to Fight PBMs in Landmark Supreme Court Case

Case seeks to clarify if the states can regulate runaway corporate middlemen

Alexandria, VA – The National Community Pharmacists Association (NCPA) and the Arkansas Pharmacists Association (APA), along with the American Pharmacists Association (APhA) and the National Alliance of State Pharmacy Associations (NASPA), announced today they will file an amicus curiae brief with the Supreme Court of the United States in support of a case that pits pharmacy benefit managers (PBM) against neighborhood healthcare providers.

“The PBMs have been hiding behind a vaguely worded section of a federal law that was never supposed to apply to them,” said B. Douglas Hoey, CEO of NCPA, which represents 21,000 locally owned pharmacies nationwide. “They operate without meaningful regulation, and because of that they’re able to stack the deck in their favor, and at the expense of community pharmacies and their patients.”

The case, Rutledge v. the Pharmaceutical Care Management Association, will be heard on April 27, 2020, the Court announced today. It originates from Arkansas, which passed a law in 2015 barring PBMs from reimbursing local pharmacies at a lower rate than what the pharmacies pay to fill the prescriptions. The PBM lobby, PCMA, challenged the law in court, which is when the APA and NCPA joined the effort to ensure the 2015 precedent stands.

“For countless years, PBMs have tightened the noose on pharmacists and their ability to serve their communities and provide access to life-saving medications and essential counseling,” said APA CEO and Executive Vice President John Vinson, Pharm.D. “Instead, PBMs have prioritized profits and stockholders by using anti-competitive practices, self-dealing, and monopoly-like business practices to create an environment where patients, pharmacists, and employers suffer the consequences – patients lose their choice, pharmacists lose their jobs, and employers lose their money.”

That case made its way to the federal 8th Circuit Court of Appeals, where the judge ruled in favor of the PBMs. When Arkansas appealed the ruling, the Supreme Court asked the US Solicitor General to recommend whether to take the case. Not only did he urge the Court to take the case, but he argued strongly that the 8th Circuit erred in its decision.

“This US Supreme Court will address regulation of an industry built for profits, not patients. The ever-increasing flow of health care funding to the proverbial unregulated middle can be halted, and good patient care can be enhanced when states are permitted to regulate PBMs,” said APhA Executive Vice President and CEO Thomas E. Menighan, BSPharm, MBA, ScD (Hon), FAPhA. “Evidence is clear that the profits in the middle come at the expense of everyday Americans and is adversely impacting patient access to pharmacists’ patient care services.”

At the heart of the case is whether states like Arkansas can enact regulations that affect the PBMs, who argue that they are exempt by the Employee Retirement Income Security Act of 1974.

Rebecca Snead, CEO and Executive Vice President of NASPA, said the federal ERISA law was never meant to shield pharmacy benefit managers from state regulation. “State pharmacy associations have championed pro-patient, pro-employer, pro-pharmacy legislation for over 25 years with limited success due to the PBMs’ claims that they are pre-empted under ERISA. But the federal ERISA law was never intended to thwart states’ attempts to regulate the business of PBMs or the business of insurance,” said Snead.

There is wide bipartisan agreement in the states that PBMs must be regulated. In fact, 33 state attorneys general, both Democrats and Republicans, signed on to an amicus brief in 2018 supporting Arkansas’s appeal of the 8th Circuit Court’s decision to the Supreme Court. Additionally, all 50 state pharmacy associations, as well as the District of Columbia, joined the brief.

“It’s rare to get bipartisan agreement on anything, so this level of support is overwhelming,” said Hoey. “State policymakers have an obligation to protect their residents and their local businesses from predatory business practices. The PBMs are driving up costs for patients, and they are limiting access for patients by systematically shutting down their local pharmacies.”

The case will be decided by the end of June. Click here for more information on Rutledge v. PCMA.

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