In 2017, North Dakota enacted S.B. 2258 and S.B. 2301, which among several PBM issues, addressed gag orders, clawbacks, PBM transparency, and accreditation standards. In their objective response filed through their national trade association, the Pharmaceutical Care Management Association (PCMA), the PBMs sued North Dakota in an attempt to use the courts to invalidate North Dakota’s legislative efforts.
On September 5, 2018, the North Dakota federal court decision PCMA v. Tufte was issued by Chief Judge Hovland in favor of North Dakota pharmacy. Surprisingly, PCMA filed the appeal with the Eight Circuit just two days later on September 7th. The appeal is currently pending in the 8th Circuit and the case is “fully submitted” and awaiting oral argument. The ruling is expected by the end of the year, and regardless of the outcome, an appeal to the U.S. Supreme Court is almost guaranteed, making this one of the most important cases pending in the federal court system to pharmacies and state pharmacy associations.
PBMs are a formidable force nationwide, strategically fighting against pharmacy interests by using their legislative, regulatory and legal resources. When it comes to legal efforts, PBMs take an aggressive stance whenever a law has been enacted by the legislature that threatens their market share. North Dakota’s PCMA v. Tufte serves as a prime example of law that could stand as a model for state and national pharmacy interests and is an excellent illustration of pharmacy stakeholders can take action against abusive PBM tactics.
For pharmacy stakeholders, North Dakota’s law lays the groundwork for helping formulate and pass the similar laws in other states. However, the real action happens with enforcement as PBMs try to get around compliance with these laws. Frier Levitt Government Affairs (FLGA) works with pharmacy stakeholders at both the state and federal level to not only formulate and pass the laws, but also litigate to defend them. Contact FLGA today for help maximizing your organization’s resources to fight against PBMs through government affairs and lobbying efforts to enact similar laws in your state and get you the fairness you deserve.