Whether the Employee Retirement Income Security Act (ERISA) preempts state regulations of pharmacy benefit managers (PBMs) that govern plan administration and patient pharmacy access

No question identified. : No. Pursuant to Rule 13.5, Oklahoma Insurance Commissioner Glen Mulready and the Oklahoma Insurance Department (“Applicants”) respectfully request that the time to file their petition for a writ of certiorari in this matter be extended for 30 days, up to and including April 10, 2024. Absent an extension of time, the petition for a writ of certiorari would be due on March 11, 2024. In support of this request, Applicants state as follows: 1. The U.S. Court of Appeals for the Tenth Circuit rendered its decision on August 15, 2023 (Exhibit 1). The Tenth Circuit declined to rehear the case en bane on December 12, 2023 (Exhibit 2). This Court would have jurisdiction over the judgment under 28 U.S.C. § 1254(1). 2. This case concerns the States’ authority to regulate pharmacy benefit managers (“PBMs”), multibillion-dollar corporate middlemen in the pharmacy world. In 2019, the Oklahoma Legislature unanimously enacted the Patient’s Right to Pharmacy Choice Act, 36 Okla. Stat. §§ 6958 ef seq., to “establish minimum and uniform access to a provider and standards and prohibitions on restrictions of a patient’s right to choose a pharmacy provider,” zd. § 6959. Four provisions of that Act are at issue in this case: (1) the “Access Standards” provision, which requires PBMs to follow geographic rules to ensure that rural patients have access to in-network pharmacies, éd, § 6961(A)-(B); (2) the “Discount Prohibition,” which bars PBMs from steering patients through incentives, id § 6963(E); (3) the “Probation Prohibition,” which prohibits PBMs from penalizing a pharmacy because its pharmacist is on probation but allowed 2 No. to work under the Oklahoma State Board of Pharmacy rules, zd § 6962(B)(5); and (4) the “Any Willing Provider Provision,” under which a PBM cannot exclude any pharmacy from a preferred network that is willing to accept the PBM’s terms and conditions, zd. § 6962(B)(4). The Act regulates only PBMs; it does not regulate health plans or fiduciaries to health plans. 3. Shortly after the Act was passed, respondent Pharmaceutical Care Management Association (“PCMA”), a trade association representing the largest PBMs in the country, sued to invalidate it, arguing that the Act is preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 e¢ seg., and Medicare Part D, 42 U.S.C. § 1395w-101 e¢ seq. The district court rejected an injunction for the vast majority of PCMA’s claims, which “conflate[d] PBMs with ERISA plans.” Dist. Ct. Dkt. 48 at 7. PCMA sought emergency relief from the Tenth Circuit, which was denied, and the Act took effect. 4. In the intexim, this Court decided Rutledge v. Pharmacentical Care Management Association, 592. U.S. 80 (2020), holding that PBM regulations in Arkansas had “neither an impermissible connection with nor reference to ERISA,” zd. at 83, and thus were not preempted. After Rvledge, the district court granted summary judgment to the Applicants on nearly all of PCMA’s claims. See Dist. Ct. Dkts. 111, 112. 5. The Tenth Circuit reversed. First, the court held that Medicare Part D preempts the Any Willing Provider provision. In the court’s view, Part D’s preemption clause “precludes States from regulating Part D plans” zz any way “except for licensin: I guatng P iy) Way P g 3 No. and plan solvency.” Ex. 1 at 45. In so holding, the Tenth Circuit created a circuit split: By the court’s own admission, its “sweeping” view of Part D preemption “disagree[s] with the fastidious approach” the Eighth Circuit took in PCMA ». Webbi, 18 F.4th 956 (8th Cir. 2021). Ex. 1 at 45, 49. 6. The Tenth Circuit also held that ERISA preempted each of the four appealed provisions. Even though ERISA is silent as to PBMs and the topics regulated by Oklahoma, the court concluded that the Access Standards, Discount Prohibition, and Any Willing Provider provisions are all preempted because (in its view) they all govern a central matter of plan administration. Ex. 1 at 28, 33