Amicus Curiae Brief — Leslie Rutledge, Attorney General of Arkansas, Petitioner v. Pharmaceutical Care Management Association
Supreme Court briefMar 2, 2020
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NO. 18-540
In the
Supreme Court of the United States
________________
LESLIE RUTLEDGE, Attorney General of Arkansas,
Petitioner,
v.
PHARMACEUTICAL CARE MANAGEMENT
ASSOCIATION,
Respondent.
________________
On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit
________________
BRIEF OF FMI AND TWENTY-THREE
RETAIL TRADE ASSOCIATIONS AS AMICI
CURIAE IN SUPPORT OF PETITIONER
________________
WILLIAM E. COPLEY
Counsel of Record
SAUL COHEN
WEISBROD MATTEIS & COPLEY PLLC
1200 New Hampshire Ave. NW
Suite 600
Washington, D.C. 20036
(202) 499-7900
wcopley@wmclaw.com
Counsel for Amici Curiae
March 2, 2020
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE................................ 1
SUMMARY OF ARGUMENT .................................... 3
ARGUMENT ............................................................... 7
I. Laws Like Act 900 Are Needed to Limit PBM
Abuses of Concentrated Market Power and to
Preserve Patient Access to Pharmacies ............... 7
A. Supermarket Pharmacies Are Important
Providers of Healthcare to Millions of
Americans ........................................................ 7
B. States Have Compelling Reasons to
Regulate
How
PBMs
Leverage
Concentrated Market Power ........................... 8
1. PBMs Wield Concentrated Market
Power .......................................................... 9
2. PBMs Leverage Concentrated Market
Power to Force Pharmacies to Accept
Below-Cost
Pricing
and
Other
Financially Oppressive Practices............. 11
3. PBMs’ Exploitation of Concentrated
Market Power Harms Healthcare Plans
and Beneficiaries ...................................... 13
C. PBMs’ Practices Risk Driving Food
Retailers Out of the Pharmacy Business ...... 16
II. Act 900 Does Not Interfere with the Uniform
Administration of ERISA Plans ......................... 18
ii
A. Congress’s Primary Purpose When It
Enacted ERISA’s Preemption Provision
Was
to
Protect
Uniform
Plan
Administration ............................................... 19
B. Act 900 Does Not Require Plan Sponsors to
Tailor Plan Administration or Benefits in
Any Way ......................................................... 21
1. Act
900
Is
Rate
Regulation
Indistinguishable from the Law Upheld
in Travelers ............................................... 23
2. Act 900 Does Not Impose Direct
Requirements on ERISA Plans or Dictate
Benefit or Beneficiary Decisions ............... 25
3. Act 900 Does Not Require Reporting or
Target Information Central to Plan
Administration ......................................... 26
4. Any Secondary Economic Effects of Act
900 Fall Far Short of the Kind of De
Facto Regulation that Could Warrant
ERISA Preemption ................................... 28
CONCLUSION ......................................................... 31
iii
TABLE OF AUTHORITIES
Cases
California Division of Labor Standards
Enforcement v. Dillingham Construction,
N.A., Inc.,
519 U.S. 316 (1997) .......................................... 19, 23
Egelhoff v. Egelhoff ex rel. Breiner,
532 U.S. 141 (2001) ........................... 6, 19-20, 23, 26
Fort Halifax Packing Co. v. Coyne,
482 U.S. 1 (1987) ............................................... 20-21
Gobeille v. Liberty Mutual Insurance Co.,
136 S. Ct. 936 (2016).............................. 6, 26, 27, 30
New York State Conference of Blue Cross &
Blue Shield Plans v. Travelers Insurance
Co.,
514 U.S. 645 (1995) ........................................ passim
Pharmaceutical Care Management
Association v. Rowe,
429 F.3d 294 (1st Cir. 2005) .................................. 31
Pharmaceutical Care Management
Association v. Rutledge,
891 F.3d 1109 (8th Cir. 2018)........................... 21-22
Pharmaceutical Care Management
Association v. Tufte,
326 F. Supp. 3d 873 (D.N.D. 2018) ....................... 15
Shaw v. Delta Air Lines, Inc.,
463 U.S. 85 (1983) ......................................... 6, 25-26
Statutes
29 U.S.C. § 1144(a) ......................................... 3, 19, 20
2015 Ark. Laws Act 900 (S.B. 688) .................. passim
iv
Ark. Code Ann. § 17-92-507 ................................. 2, 19
Ark. Code Ann. § 17-92-507(a)(6) ............................. 24
Ark. Code Ann. § 17-92-507(c)(2) ....................... 22, 27
Ark. Code Ann. § 17-92-507(c)(4)(A)(i)..................... 22
Ark. Code Ann. § 17-92-507(c)(4)(C)(iii) .................. 22
Ark. Code Ann. § 17-92-507(e) ................................. 22
Other Authorities
Advisory Council on Employee Welfare and
Pension Benefit Plans, PBM Compensation
and
Fee
Disclosure
(Nov.
2014),
https://www.dol.gov/sites/dolgov/files/EBSA
/about-ebsa/about-us/erisa-advisorycouncil/2014-pbm-compensation-and-feedisclosure.pdf ............................................. 10, 11, 12
Applied Policy, Concerns Regarding the
Pharmacy Benefit Management Industry
(Nov. 2015),
http://www.ncpa.co/pdf/applied-policyissue-brief.pdf ........................................................ 15
Complaint,
Pharmaceutical
Care
Management Association v. Mulready, No.
5:19-cv-00977 (W.D. Okla. Oct. 25, 2019),
ECF No. 1 ............................................................... 15
Counsel of Economic Advisers, Reforming
Biopharmaceutical Pricing at Home and
Abroad (Feb. 2018),
https://www.whitehouse.gov/wpcontent/uploads/2017/11/CEA-Rx-WhitePaper-Final2.pdf ...................................................... 9
v
Department of Health and Human Services,
American Patients First, The Trump
Administration Blueprint to Lower Drug
Prices and Reduce Out-of-Pocket Costs
(May
2018),
https://www.hhs.gov/sites/default/files/
AmericanPatientsFirst.pdf .................................... 16
Ellen Gabler, How Chaos at Chain
Pharmacies Is Putting Patients at Risk,
N.Y.
Times,
Jan.
1,
2020,
https://nyti.ms/2Oiw42e........................................... 8
Robert Langreth et al., The Secret Drug
Pricing System Middlemen Use to Rake in
Millions, Bloomberg, Sept. 11, 2018,
https://www.bloomberg.com/graphics/2018drug-spread-pricing/ ........................................ 11, 12
Modernizing Part D and Medicare Advantage
to Lower Drug Prices and Reduce Out-ofPocket Expenses, 83 Fed. Reg. 62,152 (Nov.
10, 2018) ..................................................... 13, 15, 16
National Association of Chain Drug Stores,
Chain Member Fact Book 2018-2019,
https://www.nacds.org/wpcontent/uploads/2019/05/2018_ChainDrug
Factbook.pdf ........................................................... 17
Ese Olumhense & Nausheen Husain,
‘Pharmacy deserts’ a growing health
concern in Chicago, experts, residents say,
Chi.
Trib.,
Jan.
22,
2018,
https://www.chicagotribune.com/news/
breaking/ct-met-pharmacy-deserts-chicago20180108-story.html .............................................. 18
vi
RUPRI Center for Rural Health Policy
Analysis, Update: Independently Owned
Pharmacy Closures in Rural America,
2003-2018 (July 2018), https://rupri.publichealth.uiowa.edu/publications/policybriefs/
2018/2018%20Pharmacy%20Closures.pdf ....... 17-18
Joanna
Shepherd,
Pharmacy
Benefit
Managers, Rebates, and Drug Prices:
Conflicts of Interest in the Market for
Prescription Drugs, 38 Yale L. & Pol’y Rev.
(forthcoming),
https://ssrn.com/abstract=3313828 ....................... 14
Sharon Terlep & Jaewon Kang, The
Pharmacist Is Out: Supermarkets Close
Pharmacy Counters, Wall St. J., Jan. 27,
2020,
https://www.wsj.com/articles/thepharmacist-is-out-supermarkets-closepharmacy-counters-11580034600 ......................... 17
Katie Thomas, Specialty Pharmacies Say
Benefit Managers Are Squeezing Them Out,
N.Y.
Times,
Jan.
9,
2017,
https://nyti.ms/2jmugmO ....................................... 15
Xil Consulting, Payers and PBMs Profit from
Obscure Pharmacy Fees, While Seniors See
No Relief in Prescription Costs (Feb. 11,
2020),
https://www.xilangconsulting.com/post/
policy-alert ....................................................... 13, 17
INTEREST OF AMICI CURIAE1
Amicus curiae FMI is a trade association
representing the food industry, including nearly
1,000 supermarket member companies that
collectively operate almost 33,000 food retail outlets
and employ approximately 6 million workers. Those
companies also operate approximately 12,000
pharmacies inside retail grocery stores throughout
the United States. The additional amici are twentythree state-level trade associations representing the
interests of retailers, including operators of
supermarket pharmacies.2 Amici represent the
interests of members ranging from independent
stores to regional supermarket chains to some of the
1
Pursuant to Rule 37.6, amici affirm that no counsel for a
party authored this brief in whole or in part and that no person
other than amici, their members, or their counsel made any
monetary contributions intended to fund the preparation or
submission of this brief. All parties have consented in writing to
the filing of this brief.
2 Those amici are the Alabama Grocers Association, Arkansas
Grocers and Retail Merchants Association, California Grocers
Association, Idaho Retailers Association, Illinois Food Retailers
Association, Indiana Grocery & Convenience Store Association,
Iowa Grocery Industry Association, Kentucky Retail Federation,
Louisiana
Retailers
Association,
Maryland
Retailers
Association, Massachusetts Food Association, Minnesota
Grocers Association, Missouri Retailers Association, Nebraska
Industry Association, New Jersey Food Council, Ohio Grocers
Association, Pennsylvania Food Merchants Association,
Tennessee Grocers & Convenience Store Association, Texas
Retailers Association, Utah Food Industry Association, Utah
Retail Merchants Association, Washington Food Industry
Association, and Wisconsin Grocers Association.
2
country’s best-known retailers with locations in all
fifty States.
The diversity of amici’s membership gives amici
a unique and particularly strong interest in this case.
Amici’s members both operate pharmacies and
sponsor multi-state healthcare plans regulated by the
Employee Retirement Income Security Act of 1974
(“ERISA”). As a result, amici’s members have
interests both in constraining the kind of abusive
practices that the Arkansas statute at issue is
designed to address, and in protecting the uniform
administration of ERISA plans as Congress intended
when it provided for preemption.
Pharmacy benefit managers (“PBMs”) leverage
their concentrated market power to the detriment of
both pharmacies and the healthcare plans that the
PBMs serve. The Arkansas statute at issue, 2015
Ark. Laws Act 900 (S.B. 688) (codified at Ark. Code
Ann. § 17-92-507) (“Act 900”), addresses just one type
of such conduct. Act 900 is designed to curtail PBMs’
ability to reimburse a pharmacy for generic drugs
below the pharmacy’s cost to acquire those drugs.
PBMs leverage their market power in other ways
that similarly hinder the ability of amici’s members
to provide access to healthcare through pharmacies
in their retail locations. As a result, some of amici’s
members have stopped operating pharmacies, and
many others struggle to maintain the financial
viability of their pharmacies. Amici therefore have a
strong interest in preserving the ability of States to
regulate abusive PBM practices.
Amici’s members, which include Fortune 500
companies, have an equally strong interest in
3
ensuring that state regulations do not interfere with
the uniform administration of ERISA plans. Amici’s
members include multi-state employers that
Congress sought to protect when it enacted ERISA
Section 514(a) (codified at 29 U.S.C. § 1144(a)) to
“minimize the administrative and financial burden of
complying with conflicting directives among States or
between States and the Federal Government ..., [and
to prevent] the potential for conflict in substantive
law ... requiring the tailoring of plans and employer
conduct to the peculiarities of the law of each
jurisdiction.” New York State Conference of Blue
Cross & Blue Shield Plans v. Travelers Ins. Co., 514
U.S. 645, 656-57 (1995) (quoting Ingersoll-Rand Co.
v. McClendon, 498 U.S. 133, 142 (1990)) (alterations
in Travelers).
If Act 900 and similar laws required plan
sponsors to tailor plan administration or benefits to
the laws of a particular State, amici’s members
would feel that burden acutely and amici could not
support such laws. Act 900 presents no such concern.
It imposes obligations only on PBMs, not on ERISA
plans. As a result, amici have an interest in
preserving the ability of States to enact similar laws
that curtail PBM abuses of their concentrated
market power and protect public access to healthcare
through pharmacies without burdening the uniform
administration of ERISA plans.
SUMMARY OF ARGUMENT
I. Act 900 is one of many state laws designed to
address abuses by PBMs that have made it difficult,
and in some cases financially infeasible, for amici’s
members to operate pharmacies and provide
4
healthcare to their communities (or to expand
pharmacy operations to other store locations). Act
900 reflects a recognition, shared by many States in
addition to Arkansas, that PBM abuses of their
concentrated market power should be restrained to
preserve affordable access to healthcare through
pharmacies.
In Arkansas, independent pharmacies were
closing at an alarming rate. The Arkansas General
Assembly responded by enacting Act 900 as a
“general health care regulation, which historically
has been a matter of local concern.” See Travelers,
514 U.S. at 661. The purpose of Act 900 is to ensure
that what a PBM pays a pharmacy for a generic drug
is at least as much as a pharmacy’s actual cost to
acquire that drug.
Below-cost pricing is just one of many abusive
practices enabled by the concentration of market
power in three PBMs that allows them to operate
outside of the normal constraints of market forces.
PBMs, for example, charge large retroactive fees to
pharmacies well after the point of sale, supposedly to
dictate incentives to pharmacies. The federal
government recently reported that these fees
increased by more than 45,000 percent from 2010 to
2017. There is no market justification for the
exponential explosion of such fees. These PBM
practices already have caused some of amici’s
members to stop operating pharmacies at numerous
retail locations, and if left unchecked, they likely will
force many more of amici’s members to exit the
pharmacy business.
5
This challenge to Act 900 by the Pharmaceutical
Care Management Association (“PCMA”) threatens to
hamstring States’ efforts to combat PBMs’
documented abuses of their concentrated market
power. Those practices harm amici’s members, “mom
and pop” shops and Fortune 500 companies alike. As
an organization representing pharmacy operators,
amici have a strong interest in preserving the power
of States to enact similar laws to constrain PBMs’
abuses of their market power.
II. Amici’s members include many employers
that sponsor multi-state ERISA plans. As such, amici
have an equally strong interest in preserving the
purpose of ERISA’s preemption clause—to protect
plan sponsors and administrators from having to
tailor their plans to comply with conflicting state
laws.
Fortunately, Act 900 does not burden uniform
plan administration in any way. It imposes
requirements only on PBMs, not on ERISA plans.
The Eighth Circuit below did not even attempt to
explain pragmatically how Act 900 could bind ERISA
plans, much less require such a plan to tailor its
administration or benefits to accommodate a
requirement unique to Arkansas.
The Eighth Circuit erred in holding that Act 900
makes “reference to” ERISA plans, because this
Court has held consistently that generally applicable
laws do not make such a prohibited “reference.” This
case therefore turns on whether Act 900 has a
“connection with” ERISA plans—in other words,
whether Act 900 imposes requirements that interfere
with the uniform administration of multi-state
6
ERISA plans. This Court has held that ERISA does
not preempt basic state rate regulations in the field
of healthcare. Travelers, 514 U.S. at 662, 667 n.6. Act
900 is indistinguishable from the rate regulation
upheld in Travelers. For purposes of preemption, a
State telling a commercial insurer that administers
an ERISA plan what it must pay a hospital for health
care services is no different than a State telling a
PBM what it must pay a pharmacy for a drug.
Neither regulation constrains or burdens ERISA plan
administration.
Act 900 does not resemble the kinds of state laws
that this Court has held preempted. Act 900 does not
impose direct requirements on ERISA plans or
dictate benefit or beneficiary decisions in any way.
See, e.g., Shaw v. Delta Air Lines, Inc., 463 U.S. 85,
97 (1983); Egelhoff v. Egelhoff ex rel. Breiner, 532
U.S. 141, 148 (2001). It also does not impose
reporting requirements or otherwise duplicate an
“essential part of[] the uniform system of plan
administration contemplated by ERISA.” See Gobeille
v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 945 (2016).
Finally, Act 900 has at most modest incidental
economic effects on the prices PBMs ultimately
charge to ERISA plans. Any such effects are precisely
the kind of “indirect economic effect on the relative
costs of various health insurance packages in a given
State” that this Court has held are “a far cry from
those ‘conflicting directives’ from which Congress
meant to insulate ERISA plans.” Travelers, 514 U.S.
at 662.
In short, Act 900 is a “general health care
regulation, which historically has been a matter of
7
local concern” that does not impinge upon uniform
plan administration in any demonstrable way. See id.
at 661. This Court therefore should reverse the
judgment of the Eighth Circuit holding that ERISA
preempts Act 900.
ARGUMENT
I.
Laws Like Act 900 Are Needed to Limit
PBM Abuses of Concentrated Market Power
and to Preserve Patient Access to
Pharmacies.
A. Supermarket
Pharmacies
Are
Important Providers of Healthcare to
Millions of Americans.
Food retailers play a unique and important role
in providing American consumers with convenient
access to the full range of pharmacy services.
Supermarket
pharmacies
provide
medication
counseling, fill prescriptions, offer reduced price or
free generic drug programs, and administer
vaccinations; and they are among the most efficient
and lowest cost competitors in the pharmacy market.
Food retailers also are uniquely positioned to
offer integrated health and wellness services as a
complement to their pharmacy services. For example,
many supermarkets today offer dietary educational
programs and carry products specific to personalized
health and wellness goals. The majority of amicus
curiae FMI’s members report that their pharmacists,
dietitians, and culinary teams collaborate frequently
to meet customers’ health needs.
8
Furthermore, as drug store chains merge and
vertically integrate (including with PBMs and
insurance companies), supermarket pharmacies have
largely remained independent. They therefore
provide an important check on market power in an
increasingly consolidated pharmacy industry. See
Ellen Gabler, How Chaos at Chain Pharmacies Is
Putting Patients at Risk, N.Y. Times, Jan. 1, 2020,
https://nyti.ms/2Oiw42e.
B. States Have Compelling Reasons to
Regulate
How
PBMs
Leverage
Concentrated Market Power.
PBMs leverage concentrated market power to
dictate terms to pharmacies and health plans alike
that are divorced from market pressures. Act 900 is a
straightforward rate regulation that, at base,
requires PBMs to pay at least a pharmacy’s actual
acquisition cost for a generic drug it dispenses.
Below-acquisition-cost pricing, however, is just one of
many ways that PBMs leverage concentrated market
power to the detriment of pharmacies, health care
plans, and beneficiaries. The outcome of this case
could affect the ability of States to legislate limits on
a variety of different PBM abuses of concentrated
market power.
PBMs operate as middlemen in the prescription
drug distribution chain. Health plans, both those
that ERISA regulates and those that ERISA does
not, contract for PBMs to organize networks of
pharmacies at which their participants can purchase
prescription drugs. PBMs earn money on the spread
between the prices they pay to pharmacies and the
amounts they bill to health plans on every drug
9
purchase, and by charging pharmacies additional
“performance-based pharmacy incentive” fees (also
referred to as a type of “direct and indirect
remuneration” or “DIR” fees), which PBMs contend
are designed to incentivize pharmacies to perform
better. They also profit from rebates that drug
manufacturers pay to have their drugs placed and
preferred on drug formularies. PBMs also operate
their own pharmacies from which they can sell
prescription drugs directly to patients.
1.
PBMs Wield Concentrated Market
Power.
Act 900, like similar laws enacted by other
States, is designed to constrain predatory practices
enabled by PBMs’ concentrated market power. The
current administration has found that “[t]hree PBMs
account for 85 percent of the market, which allows
them to exercise undue market power against
manufacturers and against the health plans and
beneficiaries they are supposed to be representing,
thus generating outsized profits for themselves.”
Counsel
of
Economic
Advisers,
Reforming
Biopharmaceutical Pricing at Home and Abroad 10
(Feb. 2018).3 This market concentration empowers
the big three PBMs to offer pharmacies a Hobson’s
choice. The pharmacy must either accept the PBM’s
mandated contract terms (including allowing the
PBM to set prices for generic drugs unilaterally and
then later impose retroactive DIR fees based on an
3
https://www.whitehouse.gov/wp-content/uploads/2017/
11/CEA-Rx-White-Paper-Final2.pdf.
10
opaque methodology), or give up the ability to serve
the many customers whose health plans contract
with the PBM.
PBMs consistently have resisted state and
federal efforts to regulate how they leverage
concentrated market power, including taking
contradictory positions before federal regulators and
this Court. When the Department of Labor
considered federal regulations that would impose
transparency requirements on how PBMs calculate
drugs prices and administrative fees, PBMs argued
that existing state laws were sufficient to constrain
their ability to abuse concentrated market power. See
Advisory Council on Employee Welfare and Pension
Benefit Plans, PBM Compensation and Fee
Disclosure 18 (Nov. 2014) (“ERISA Advisory Council
Report”).4 Yet in this case and in several other
similar cases around the country, PCMA argues that
ERISA preempts those same state laws. The
combined effect of PCMA’s irreconcilable positions is
to provide PBMs with unconstrained freedom to
exploit concentrated market power to the detriment
of healthcare plans, beneficiaries, and pharmacies.
4
https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/
about-us/erisa-advisory-council/2014-pbm-compensation-andfee-disclosure.pdf.
11
2.
PBMs
Leverage
Concentrated
Market Power to Force Pharmacies
to Accept Below-Cost Pricing and
Other
Financially
Oppressive
Practices.
PBMs’ profit model is dependent upon their
ability to dictate prices and impose upon pharmacies
arbitrary and often below-cost reimbursement terms
for generic drugs through maximum allowable cost
(“MAC”) price lists. Unlike with on-patent drugs,
where PBM reimbursements typically are based on
the actual prices paid by drug wholesalers to
manufacturers, PBM reimbursements to pharmacies
for generic drugs are based on PBMs’ “proprietary”
MAC lists, which bear no necessary relation to
pharmacies’ acquisition costs. See ERISA Advisory
Council Report 10; BIO 6.
PBMs profit by maximizing the difference
between what they pay pharmacies for a drug and
the inflated amount they charge a healthcare plan for
that same transaction. To take just one reported
example, an Iowa county was billed by its PBM
$198.22 for a drug that the PBM reimbursed the
dispensing pharmacy just $5.73—a markup of more
than 3,400 percent. See Robert Langreth et al., The
Secret Drug Pricing System Middlemen Use to Rake
in Millions, Bloomberg, Sept. 11, 2018.5 As a result,
many States impose limits on such practices to
protect themselves and private plans from
5
https://www.bloomberg.com/graphics/2018-drug-spreadpricing/.
12
excessively inflated markups. See id.; California et al.
Cert. Amicus Br. 12-13.
Act 900 is not, as PCMA suggests, designed to
prop up inefficient businesses. See BIO 7. PCMA
asserts that below-cost reimbursement is a problem
only for “[p]oorly run pharmacies,” and that low PBM
reimbursement rates “create a powerful incentive for
less-well-run pharmacies to improve their purchasing
practices, which in turn increases competition by
wholesalers and manufacturers to sell to such
pharmacies.” Id. Although PCMA declares that “the
whole point of a MAC program is to pay the average
cost incurred by well-run pharmacies,” id., the PBM
industry has resisted attempts to force price
transparency that would reveal the basis for these
claims. See, e.g., ERISA Advisory Council Report 1720. Pharmacy operators generally—not just “poorly
run” ones—are suffering as a result of PBMs’ belowcost MAC pricing. Even some of amici’s largest
members—Fortune 500 companies with efficiencies,
expertise in supply chain logistics, and economies of
scale—struggle to operate financially viable
pharmacies.
Below-cost pricing is just one way that PBMs
systematically leverage their market power. They
also impose opaque retroactive DIR fees. PBMs
charge these fees to pharmacies without warning or
market justification weeks or months after the
pharmacy dispenses a drug to a beneficiary.
The Centers for Medicare & Medicaid Services
(“CMS”) tracks DIR fees and has reported an
increase in such post-sale fees charged to pharmacies
by PBMs of more than 45,000 percent from 2010 to
13
2017. See Modernizing Part D and Medicare
Advantage to Lower Drug Prices and Reduce Out-ofPocket Expenses, 83 Fed. Reg. 62,152, 62,174 (Nov.
10, 2018). There is no competitive market
justification for such an exponential growth in these
fees.
As with MAC pricing, PBMs tout these post-sale
fees as disincentives to “poor performance” by
pharmacies. See id. In reality, they are just another
example of PBMs leveraging their market power to
maximize their profits. Charges for “poor
performance” far exceed incentive payments to
pharmacies intended to reward “high performance.”
See id. As a result, beneficiaries pay higher costs and
drug prices become less transparent. Pharmacies
report that these retroactive fees are a key reason for
recent closures. Xil Consulting, Payers and PBMs
Profit from Obscure Pharmacy Fees, While Seniors
See No Relief in Prescription Costs (Feb. 11, 2020)
(“Pharmacy Fees”).6 As a result, below-cost MAC
pricing is just one of potentially numerous
manifestations of PBMs’ concentrated market power
that States have a legitimate interest in regulating.
3.
PBMs’ Exploitation of Concentrated
Market Power Harms Healthcare
Plans and Beneficiaries.
How PBMs wield market power does not just
harm pharmacies. States also have a legitimate
interest in regulating PBM practices that exploit
inherent conflicts of interest to the detriment of
6
https://www.xilangconsulting.com/post/policy-alert.
14
health care plans and beneficiaries. The Court’s
decision in this case likely will impact States’ ability
to legislate to constrain such practices.
PBMs often are responsible for developing
healthcare plan formularies—lists of drugs that a
plan will cover. Drug companies compete to have
their drugs listed on those formularies by offering
compensation to PBMs in the form of rebates. See
Joanna Shepherd, Pharmacy Benefit Managers,
Rebates, and Drug Prices: Conflicts of Interest in the
Market for Prescription Drugs, 38 Yale L. & Pol’y
Rev. (forthcoming).7 PBMs may be incentivized to
obtain more expensive drugs, to the extent their
rebates correlate with the cost of the drugs they
include on formularies. See id. Plans typically have
little visibility into these rebates, making it difficult
for them to monitor whether their contracted PBMs
are choosing drugs to reduce plan costs or to increase
the PBMs’ own compensation. See id.
Rebates and other price concessions have been
steadily increasing in recent years, with PBMs
taking the lion’s share. Between 2012 and 2016, “over
half of the increase in list price purchases was paid to
PBMs as higher rebates,” meaning that “although
drug list prices are increasing, drug makers are
keeping a decreasing share of the revenue while
PBMs are keeping an increasing share.” Id.
PBMs also own or have financial interests in
pharmacies, and they frequently drive patients to
those outlets as the sole source for pharmaceuticals.
7
https://ssrn.com/abstract=3313828.
15
Again, PBMs have incentives in these circumstances
to provide patients with more expensive drugs. See
Applied Policy, Concerns Regarding the Pharmacy
Benefit Management Industry (Nov. 2015).8 They also
reduce competition when they steer patients toward
their own captive retailers. See Katie Thomas,
Specialty Pharmacies Say Benefit Managers Are
Squeezing Them Out, N.Y. Times, Jan. 9, 2017,
https://nyti.ms/2jmugmO. As CMS has recognized,
“[m]arket competition is best achieved when a wide
variety of pharmacies are able to compete in the
market for selective contracting with plan sponsors
and PBMs,” not when PBMs can simply direct
patients to themselves. 83 Fed. Reg. at 62,176.
Act 900 is just one example of efforts by States to
curb these practices. PCMA has attempted to
invalidate state laws promoting patients’ ability to
choose their own pharmacies, allowing pharmacies to
disclose information about drug alternatives and
PBM compensation, allowing brick-and-mortar
pharmacies to deliver drugs by mail, limiting PBMs’
ability to charge certain retroactive fees, and
prohibiting copayments that exceed the cost of
medication. See, e.g., Compl., Pharmaceutical Care
Mgmt. Ass’n v. Mulready, No. 5:19-cv-00977 (W.D.
Okla. Oct. 25, 2019), ECF No. 1; Pharmaceutical
Care Mgmt. Ass’n v. Tufte, 326 F. Supp. 3d 873, 880
(D.N.D. 2018).
of
8
PBM practices have also attracted the attention
the
federal
government.
The
current
http://www.ncpa.co/pdf/applied-policy-issue-brief.pdf.
16
administration has identified as problems, for
example, the massive increase in DIR fees imposed
on pharmacies and PBMs’ tactic of steering patients
to their own pharmacy operations, or those in which
they have a financial interest. See 83 Fed. Reg. at
62,174-76. It also has acknowledged how PBMs’
conflicted rebate-based compensation structures
contribute to high prescription costs. See Dep’t of
Health and Human Servs., American Patients First,
The Trump Administration Blueprint to Lower Drug
Prices and Reduce Out-of-Pocket Costs (May 2018)9
(“Because health plans, pharmacy benefit managers
(PBMs), and wholesalers receive higher rebates and
fees when list prices increase, there is little incentive
to control list prices. Consumers, however, pay
higher copayments, coinsurance, or pre-deductible
out-of-pocket costs when list prices rise.”).
C. PBMs’ Practices Risk Driving Food
Retailers
Out
of
the
Pharmacy
Business.
The PBM practices described above have put
independent pharmacy operations at risk. Unlike
standalone pharmacies, amici’s members that
operate supermarket pharmacies generally are not
dependent solely on their pharmacy operations for
survival. PBM abuses may not threaten to force
integrated food retailers to close their doors. Instead,
PBM practices make it likely that food retailers will
be forced to continue leaving the pharmacy
9
https://www.hhs.gov/sites/default/files/AmericanPatients
First.pdf.
17
business—either by outsourcing their pharmacy
operations to the biggest players in the market, or
worse, by abandoning pharmacy operations
altogether.
Neither of these scenarios is merely hypothetical.
Some stores already have sold their pharmacy
operations to PBM-operated chains. The number of
pharmacies in supermarkets decreased by more than
seven percent between 2007 and 2017. See National
Association of Chain Drug Stores, Chain Member
Fact Book 2018-2019 at 10;10 Sharon Terlep &
Jaewon Kang, The Pharmacist Is Out: Supermarkets
Close Pharmacy Counters, Wall St. J., Jan. 27,
2020.11 Food and mass-market retailers have
experienced the worst impact of PBMs’ practices,
accounting for more than 45 percent of the pharmacy
closures from July 2018 to July 2019. See Pharmacy
Fees.12 At the same time, consumers are expressing
increasing interest in integrated health and wellness.
Supermarket pharmacy closures, and abandoned
expansions, thus contribute to the overall trend of
decreased access to pharmacies. The effect of such
closures is particularly acute in some rural
communities, where closures are more prevalent and
more detrimental to a community’s access to
healthcare. See RUPRI Center for Rural Health
10
https://www.nacds.org/wp-content/uploads/2019/05/
2018_ChainDrugFactbook.pdf.
11
https://www.wsj.com/articles/the-pharmacist-is-outsupermarkets-close-pharmacy-counters-11580034600.
12
https://www.xilangconsulting.com/post/policy-alert.
18
Policy Analysis, Update: Independently Owned
Pharmacy Closures in Rural America, 2003-2018 at
1-2 (July 2018).13 The closure of pharmacies in recent
years has created “pharmacy deserts” in some
underserved urban communities as well. See, e.g.,
Ese Olumhense & Nausheen Husain, ‘Pharmacy
deserts’ a growing health concern in Chicago, experts,
residents say, Chi. Trib., Jan. 22, 2018.14
II. Act 900 Does Not Interfere with the
Uniform Administration of ERISA Plans.
Congress’s primary goal when it preempted state
laws that “relate to” ERISA plans was to ensure that
plan sponsors that have employees in multiple
States, like many of amici’s members, could offer
uniform benefits nationwide without the burden of
tailoring their plans to as many as fifty sets of
conflicting state laws. Act 900 serves its purpose—to
ensure that pharmacies in addition to those run by
PBMs
remain
financially
viable—without
undermining that goal. Act 900 imposes obligations
only upon PBMs, not ERISA plans, and it does not
require an ERISA plan to tailor plan administration
or benefits in any way.
13
https://rupri.public-health.uiowa.edu/publications/
policybriefs/2018/2018%20Pharmacy%20Closures.pdf.
14
https://www.chicagotribune.com/news/breaking/ct-metpharmacy-deserts-chicago-20180108-story.html.
19
A. Congress’s Primary Purpose When It
Enacted ERISA’s Preemption Provision
Was
to
Protect
Uniform
Plan
Administration.
Section 514(a) of ERISA preempts state laws
“insofar as they may now or hereafter relate to any
employee benefit plan.” 29 U.S.C. § 1144(a).
Recognizing that this language on its own is
“unhelpful” for determining the outer bounds of
preemption, Travelers, 514 U.S. at 656, this Court
has held that a “law ‘relate[s]’ to a covered employee
benefit plan for purposes of § 514(a) ‘if it [1] has a
connection with or [2] reference to such a plan.’”
California Div. of Labor Standards Enf’t v.
Dillingham Constr., N.A., Inc., 519 U.S. 316, 324
(1997) (alterations in original).
The Eighth Circuit’s contrary decision below
notwithstanding, Act 900 plainly does not make
“reference to” an ERISA plan. Act 900 imposes
obligations only on PBMs, not on healthcare plans, as
part of a statute that regulates the use of MAC price
lists for generic drugs. See Ark. Code Ann. § 17-92507. As a result, it does not “act immediately and
exclusively” upon ERISA plans, nor is “the existence
of an ERISA plan essential to the law’s operation.”
See Dillingham, 519 U.S. at 325 (emphasis added).
Every ERISA plan could disappear tomorrow, and
the statute would apply unabated to PBMs’
management of prescription drug benefits for other
types of health plans.
This case therefore primarily is about whether
Act 900 has a “connection with” an ERISA plan. This
Court has acknowledged that “‘connection with’ is
20
scarcely more restrictive than ‘relate to’” and
“cautioned against ‘uncritical literalism’ that would
make pre-emption turn on ‘infinite connections.’”
Egelhoff, 532 U.S. at 147. Instead, this Court has
held that “to determine whether a state law has the
forbidden connection, we look both to ‘the objectives
of the ERISA statute as a guide to the scope of the
state law that Congress understood would survive,’
as well as to the nature of the effect of the state law
on ERISA plans.” Id.
Congress’s principal goal when it enacted Section
514(a) was to ensure that plan sponsors are not
required to tailor plan administration and benefits to
comply with as many as fifty sets of state laws:
We have found that in passing § 514(a),
Congress intended “to ensure that plans and
plan sponsors would be subject to a uniform
body of benefits law; the goal was to
minimize the administrative and financial
burden of complying with conflicting
directives among States or between States
and the Federal Government ..., [and to
prevent] the potential for conflict in
substantive law ... requiring the tailoring of
plans and employer conduct to the
peculiarities of the law of each jurisdiction.”
Travelers, 514 U.S. at 656-57 (quoting IngersollRand, 498 U.S. at 142) (alterations in Travelers); see
also Egelhoff, 532 U.S. at 150 (explaining that
“[r]equiring ERISA administrators to master the
relevant laws of 50 States” undermines Congress’s
goals). Congress sought to enable employers to
“establish a uniform administrative scheme,” and to
21
protect employers from having “to keep certain
records in some States but not in others; to make
certain benefits available in some States but not in
others; to process claims in a certain way in some
States but not in others; and to comply with certain
fiduciary standards in some States but not in others.”
Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 9
(1987).
The multi-state employers that amici represent,
which sponsor plans that provide healthcare to
employees in several States, are precisely the parties
that Congress intended ERISA preemption to protect.
Absent a strong preemption regime, they would have
to contend with these hurdles to providing benefits to
their employees. Amici therefore have a strong
interest in preserving ERISA’s protection for the
uniform administration of benefit plans.
B. Act 900 Does Not Require Plan
Sponsors to Tailor Plan Administration
or Benefits in Any Way.
Amici support laws like Act 900 that constrain
PBMs’ abuses of their concentrated market power to
the detriment of amici’s pharmacy-operating
members without infringing upon their members’
ability to uniformly administer their plans and
formulate benefits nationwide. No provision in Act
900 requires an ERISA plan sponsor to tailor the
plan’s administration or benefits.
The Eighth Circuit accurately summarized Act
900 as follows: “the Act mandates that pharmacies be
reimbursed for generic drugs at a price equal to or
higher than the pharmacies’ cost for the drug based
on the invoice from the wholesaler.” Pharmaceutical
22
Care Mgmt. Ass’n. v. Rutledge, 891 F.3d 1109, 1111
(8th Cir. 2018). The Eighth Circuit’s use of the
passive voice notwithstanding, Act 900 makes clear
that it imposes obligations only on PBMs. It requires
nothing from healthcare plans—ERISA plans and
non-ERISA plans alike—that contract with PBMs.
Act 900 also creates enforcement mechanisms to
allow pharmacies to protect themselves from belowcost MAC prices. Specifically, the law requires PBMs
to:
(i)
update MAC lists within seven days of
certain wholesale price changes for
prescription drugs, Ark. Code Ann. § 1792-507(c)(2);
(ii) provide an administrative appeal
procedure that pharmacies can use to
challenge below-cost MAC prices and
seek retroactive reimbursement for
underpayments,
id.
§ 17-92507(c)(4)(A)(i); and
(iii) adjust MAC pricing when a pharmacy
wins
an
appeal,
id.
§ 17-92507(c)(4)(C)(iii).
Act 900 also authorizes pharmacies to decline to
dispense a generic drug when a PBM’s MAC price is
below the pharmacy’s acquisition cost for the drug.
Id. § 17-92-507(e).
None of those provisions apply to ERISA plans,
much less bind an ERISA plan sponsor or
administrator to provide a particular benefit,
recognize a particular beneficiary, or take on
additional reporting or other administrative burdens.
23
Thus, a comparison of the “objectives of the ERISA
statute” to the “nature of the effect of the state law
on ERISA plans” reveals that Act 900 does not
impact ERISA plan administration or benefits in a
manner that contravenes Congress’s goals. Egelhoff,
532 U.S. at 147.
1.
Act
900
Is
Rate
Regulation
Indistinguishable from the Law
Upheld in Travelers.
At its core, Act 900 regulates pharmacy
reimbursement rates for prescription medications. It
sets a pharmaceutical wholesaler’s price for a generic
drug as the floor for how much a PBM must pay the
pharmacy for that same drug. For preemption
purposes, a law setting a floor for how much a PBM
must pay a pharmacy for a drug is no different than
a law regulating how much a plan administrator
must pay a hospital for a health care service.
Travelers specifically held that “ERISA was not
meant to pre-empt basic rate regulation” in the field
of healthcare. 514 U.S. at 665-67 & n.6; cf.
Dillingham, 519 U.S. at 330 (“The wages to be paid
on public works projects and the substantive
standards to be applied to apprenticeship training
programs are, however, quite remote from the areas
with which ERISA is expressly concerned—
‘“reporting, disclosure, fiduciary responsibility, and
the like.”’”). In Travelers, the law at issue was a New
York statute, Section 2807-c, requiring hospitals to
“collect surcharges from patients covered by a
commercial insurer but not from patients insured by
a Blue Cross/Blue Shield plan.” 514 U.S. at 649.
Those surcharges were intended to compensate
24
nonprofit insurers for providing coverage to patients
“whom the commercial insurers would reject as
unacceptable risks.” Id. at 658.
The conclusion in Travelers that Section 2807-c
was not preempted was bolstered by the fact that,
only months after passing ERISA, Congress passed a
law making States eligible for grants “‘[f]or the
purpose of demonstrating the effectiveness of State
Agencies regulating rates for the provision of health
care ... within the State.’” Id. at 666 (alteration in
original). This Court concluded that Congress’s
“provision for comprehensive aid to state health care
rate regulation is simply incompatible with preemption of the same by ERISA.” Id. at 667 (emphasis
added).
For
preemption
purposes,
Act
900
is
indistinguishable from the rate regulation in Section
2807-c. Both laws regulate what third parties must
pay to facilitate a healthcare plan’s provision of
benefits to participants. Section 2807-c regulates
what a commercial insurer must pay a hospital for a
health care service. Act 900 similarly regulates what
a PBM must pay to a pharmacy for a generic drug,
specifically a price equal to or higher than the
“[p]harmacy acquisition cost.” Ark. Code Ann. § 1792-507(a)(6). Act 900, like Section 2807-c, does not
“bind plan administrators to any particular choice,”
Travelers, 514 U.S. at 659.
This Court noted in Travelers that treating a
regulation of hospital costs as a regulation of ERISA
plan administration for purposes of preemption—
based on the argument that the costs of such
regulation inevitably will be passed to ERISA
25
plans—would “bar any state regulation of hospital
costs.” 514 U.S. at 665. It referred to such a result as
“unsettling” and “startling,” particularly because
“there is not so much as a hint in ERISA’s legislative
history or anywhere else that Congress intended to
squelch these state efforts.” Id. at 665.
The same is true with respect to state laws that
regulate PBMs. Such laws are “general health care
regulation” of a kind that “historically has been a
matter of local concern.” Id. at 662. If ERISA could
preempt a law like Act 900 that sets a floor for what
a PBM must pay a pharmacy for a generic drug, even
though that law does not regulate a PBM’s
relationship with a healthcare plan in any way, it is
difficult to conceive how a State ever could regulate a
PBM. “Nothing in the language of [ERISA] or the
context of its passage indicates that Congress chose
to displace” such laws. Id.
2.
Act 900 Does Not Impose Direct
Requirements on ERISA Plans or
Dictate Benefit or Beneficiary
Decisions.
Act 900 regulates only PBMs’ relationships with
pharmacies. It does not regulate healthcare plans’
relationships with PBMs or with plan participants.
As a result, it does not resemble the kinds of state
laws that this Court has held to be preempted by
ERISA. Those laws generally have imposed direct
requirements on ERISA plans that required them to
provide a particular kind of benefit, or pay benefits to
a particular beneficiary.
For example, in Shaw, this Court held that
ERISA preempted the New York Human Rights Law
26
because it required employers to provide pregnancy
benefits in ERISA plans. 467 U.S. at 97. In contrast,
Act 900 does not require health care plans to provide
coverage for any particular drug. Rather, the law
simply requires a PBM to pay at least a pharmacy’s
actual acquisition cost to acquire a drug covered by a
health care plan’s formulary.
Similarly, in Egelhoff, this Court held that
ERISA preempted a Washington statute that revoked
a spouse’s designation as beneficiary upon divorce
because
the
statute
“binds
ERISA
plan
administrators to a particular choice of rules for
determining beneficiary status.” 532 U.S. at 148. As
this Court recognized in Egelhoff, ERISA preempts
such state laws because they “interfere[] with
nationally uniform plan administration.” Id. There is
no credible argument in this case that Act 900
dictates plan benefit choices or administration in a
similar manner.
3.
Act 900 Does Not Require Reporting
or Target Information Central to
Plan Administration.
Act 900 does not impose new reporting
requirements on ERISA plans or even concern
information central to plan administration,
distinguishing the law from the Vermont statute
struck down in Gobeille, 136 S. Ct. at 943-44. Act 900
requires no reporting, and it does not concern
27
matters central to plan administration that are
subject to federal regulation.15
The law that this Court struck down in Gobielle
required “health insurers, health care providers,
health care facilities, and governmental agencies to
report any ‘information relating to health care costs,
prices, quality, utilization, or resources required’ by
the state agency, including data relating to health
insurance claims and enrollment.” 136 S. Ct. at 941.
This Court held that ERISA preempted that law.
“ERISA’s extensive reporting, disclosure, and
recordkeeping requirements are central to, and an
essential part of, this uniform plan administration
system.” Id. at 945. Because the Vermont statute, “by
necessary implication,” governed “recordkeeping,” it
risked “regulations from multiple jurisdictions [that]
could create wasteful administrative costs and
threaten to subject plans to wide-ranging liability.”
Id.
Act 900, by contrast, is concerned only with the
price a PBM will pay a pharmacy for each generic
drug on its MAC list. It does not require any
reporting, and this Court established in Travelers,
514 U.S. at 665-67 & n.6, that a State’s regulation of
rates in the field of healthcare is not a matter central
to uniform plan administration that Congress
intended ERISA to preempt.
15 Act 900 requires PBMs to update MAC lists on a timely
basis, Ark. Code Ann. § 17-92-507(c)(2), but not to report
information about plan benefits or administration.
28
4.
Any Secondary Economic Effects of
Act 900 Fall Far Short of the Kind of
De Facto Regulation that Could
Warrant ERISA Preemption.
PCMA argues primarily for preemption based on
the indirect economic effect that Act 900 could have
on ERISA plans and beneficiaries if PBMs are
required to pay at least a pharmacy’s acquisition cost
for a prescription drug. For example, PCMA argues
that “Act 900 will increase ERISA plans’
pharmaceutical spending by undermining the utility
of MAC pricing.” BIO 13. It asserts that “Act 900 will
increase plan members’ out-of-pocket contributions
by increasing premiums and copayments, which are
computed based on the actual cost of the dispensed
drug.” Id. And it claims that “Act 900 will cause
employers to change their plan design to offset the
lost value of MAC pricing, including by modifying
covered benefits or changing co-payments and
deductibles.” Id.
At base, PCMA argues that Act 900 is preempted
because PBMs may charge ERISA plans and their
beneficiaries more for certain generic drugs to make
up the revenue that PBMs lose by not being able to
force pharmacies to accept below-cost MAC prices.
But this Court has already held in Travelers that
such indirect economic influences do not warrant
preemption:
An indirect economic influence ... does not
bind plan administrators to any particular
choice and thus function as a regulation of
an ERISA plan itself .... Nor does the
indirect influence ... preclude uniform plan
29
administrative practices or the provision of a
uniform interstate benefit package if a plan
wishes to provide one. It simply bears on the
costs of benefits and the relative costs of
competing insurance to provide them. It is
an influence that can affect a plan’s
shopping decisions, but it does not affect the
fact that any plan will shop for the best deal
it can get, surcharges or no surcharges.
514 U.S. at 659-60. In other words, the surcharges in
Travelers were just another generally applicable
factor affecting ERISA plans’ prices, no different
than other non-preempted state laws like “[q]uality
standards” or “basic regulation of employment
conditions.” Id. at 660. Indeed, even non-regulatory
factors like “the geographically disparate burdens of
providing for the uninsured” cause prices to vary
across different States. Id.
PCMA’s reliance upon indirect economic effects
underscores that there is no legitimate impingement
of uniform plan administration that could warrant
ERISA preemption. PCMA argues, for example, that
“Act 900 will increase ERISA plans’ pharmaceutical
spending,” will “increase plan members’ out-of-pocket
contributions by increasing premiums and copayments,” and may even lead employers to “modify[]
covered benefits.” BIO 13. As this Court held in
Travelers, 514 U.S. at 660, these are precisely the
kind of “shopping decisions” that do not warrant
ERISA preemption.
Virtually any regulation a State issues in the
field of healthcare—a traditional subject of state
regulation—has the theoretical potential to indirectly
30
increase the price an ERISA plan or its members pay
for health benefits, and “the existence of other
common state action with indirect economic effects
on a plan’s costs leaves the intent to pre-empt even
less likely.” Id. at 660. In both Travelers and in this
case, the payer subject to higher payment
requirements—whether commercial insurers or
PBMs—might theoretically “pass[] on” those prices
“at least in part to those who purchase commercial
insurance.” Id. at 659. To be sure, this Court has left
open the possibility that a state law’s indirect
economic influences might be so acute that they act
as a de facto regulation by “forc[ing] an ERISA plan
to adopt a certain scheme of substantive coverage or
effectively restrict its choice of insurers.” Gobeille,
136 S. Ct. at 943; see also Travelers, 514 U.S. at 668.
PCMA has not established that Act 900 will have any
significant secondary economic influence on ERISA
plans, much less the kind of acute economic effects
that operate as a de facto regulation that the Court
has suggested might trigger ERISA preemption.
PCMA’s argument that Act 900 automatically
will require ERISA plans to pay more for certain
generic drugs also ignores a primary component of its
members’ profit model. Most PBMs currently make a
substantial portion of their profits by maximizing the
spread between the price they pay a pharmacy for a
drug and the higher price they charge an ERISA plan
or beneficiary for that same drug. PBMs treat
information about that spread as confidential, in
many cases refusing to disclose to ERISA plans their
MAC list of prices they pay to pharmacies for generic
drugs, unless compelled by state law to do so.
31
As a result, there is no direct correlation between
the price a PBM pays to a pharmacy in a drug
transaction and the price that the PBM charges to an
ERISA plan for that same transaction. As the First
Circuit has recognized, “‘[w]hether and how a PBM
actually saves an individual benefits provider
customer money with respect to the purchase of a
particular prescription drug is largely a mystery to
the benefits provider.’” Pharmaceutical Care Mgmt.
Ass’n v. Rowe, 429 F.3d 294, 298 (1st Cir. 2005)
(alteration in original). PCMA cannot establish that
Act 900 has any significant economic influences on
healthcare plans, much less influences so acute that
they “bind plan administrators to any particular
choice and thus function as a regulation of an ERISA
plan itself.” Travelers, 514 U.S. at 659.
CONCLUSION
The judgment below of the court of appeals
should be reversed.
Respectfully submitted,
WILLIAM E. COPLEY
Counsel of Record
SAUL COHEN
WEISBROD MATTEIS & COPLEY PLLC
1200 New Hampshire Ave. NW
Suite 600
Washington, D.C. 20036
(202) 499-7900
wcopley@wmclaw.com
Counsel for Amici Curiae
March 2, 2020
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.