Whether ERISA preempts state laws regulating PBMs

QUESTIONS PRESENTED In 2019, the Oklahoma Legislature responded to a wave of pharmacy closures and patient complaints by enacting the Patient’s Right to Pharmacy Choice Act. The Act imposes modest rules on pharmacy benefit managers (“PBMs”), middlemen that wield enormous power in the prescription-drug market and have favored national chains and_ mail-order pharmacies (which they often own) over local providers that have long been cornerstones of communities and subject to state regulation. While PBMs are not ERISA plans and do not contract exclusively with ERISA plans, they have attempted to wield ERISA’s preemption clause as a de facto immunity from state regulation. This Court unanimously rejected that gambit in Rutledge v. Pharmaceutical Care Management Association, 592 U.S. 80 (2020), which upheld Arkansas’ effort to curb PBM abuse. Yet the Tenth Circuit largely cast Rutledge aside in favor of decades-old lower-court decisions, reviving an expansive view of ERISA preemption far out of step with this Court’s modern precedents. Adding insult to injury, the court held that Medicare Part D precludes States from regulating PBMs with respect to Part D plans at all except as to licensing and plan solvency—openly creating not one, but two, circuit splits in the process. The questions presented are: 1. Whether ERISA preempts state laws that regulate PBMs by preventing them from cutting off rural patients’ access, steering patients to PBMfavored pharmacies, excluding pharmacies willing to ii accept their terms from preferred networks, and overriding State discipline of pharmacists. 2. Whether Medicare Part D preempts state laws that limit the conditions PBMs may place on pharmacies’ participation in their preferred networks. ili STATEMENT OF