ANY WILLING PROVIDER CASES, COMPLAINTS AND LEGAL RESOURCES
Mississippi State and School Employees’ Life and Health Plan et al. v. KCC, Inc., Case No. 2011-CA-01716-SCT (Miss. Supr. Ct., 2013)
Mississippi Supreme Court upholds challenge to state employees’ health plan designation of Walgreens as the sole provider of specialty pharmacy services.
Mississippi's AWP statute (MCA § 83-9-6(3)) prohibits health insurance plans or HMOs from excluding a participant from “selecting a pharmacy that has agreed to meet the terms, requirements, and reimbursement set for the by the insurer, or deny such a pharmacy the right to participate as a contract provider under the policy or plan.”
The Mississippi State and School Employees’ Life and Health Plan (the Plan) acknowledged at a hearing that it pays an average of $2,000 per prescription for “specialty drugs,” which are provide for complex medical conditions including MS, cancer, and HIV/AIDS. These drugs have a $65 copay for beneficiaries, and account for 0.4% of all prescriptions, but 16% of the plan’s total expenditures on prescription drugs. In 2009, the plan announced that it would close the plan’s specialty pharmacy network and effective January 1, 2010, Walgreens Specialty Pharmacy would become the sole provider approved by the plan to provide specialty pharmacy services.
Vital Care of Meridian (“Vital Care”) timely filed a complaint against the plan, alleging that it was violating Mississippi’s any willing provider law, moved for injunctive relief to enjoin the plan and its PBM from excluding Vital Care from the plan’s specialty pharmacy network It sought declaratory judgment that MCA §83-9-6(3) applied to the plan. The trial court granted Vital Care’s motion for partial summary judgment ruling that the any willing provider provisions applied to the plan’s actions.
On appeal, the Court affirmed the judgment below, holding that “Section 83-9-6 applies to the Plan because it applies to ‘all health benefit plans providing pharmaceutical services benefits, including prescription drugs, to any resident of Mississippi’” and is not ambiguous
MedFusion Rx v. Bronner, et al, Case No. CV-2010-144 (Cir. Court. Montgomery, Ala. 2010)
Independent specialty pharmacy, MedFusion Rx, brought suit against David Bronner, Chief Executive Officer of the Alabama Public Education Employees’ Health Insurance Plan (PEEHIP), and other similarly situated. PEEHIP announced that, through its pharmacy benefit manager, Express Scripts, they would be closing their pharmacy network and requiring patients fill all specialty medication through one specialty pharmacy, Bio Scrip. Medfusion brought suit claiming PEEHIP's new plan violated Alabama's any willing provider law, and sought an injunction. The court agreed with Medfusion, finding that the plan violated state any willing provider law, and that the plan will have immediate and irreparable harm if MedFusion Rx is prevented from providing network services to PEEHIP members.
Click here for the complaint; click here for the court's order
J.E. Pierce Apothecary et al. v. Harvard Pilgrim Health Care et al., Case No. CIV.A.98-12635-WGY (U.S. District Court, D. Massachusetts, 2005)
Independent pharmacies brought class action and individual claims against health maintenance organization (HMO), pharmacy chain, and pharmacy benefit manager (PBM), alleging, inter alia, violation of Massachusetts' consumer protection act based on alleged violation of state's any willing provider statute arising from design and implementation of HMO's pharmacy network. Parties cross-moved for summary judgment. The Court held that defendants violated the state's any willing provider law, in that the defendants' arrangement using the PBM, which was the chain's subsidiary, required that the HMO's pharmacy network be opened up to non-network pharmacies. The court also found that the release and covenant not to sue that pharmacies were required to sign was void as violative of Massachusetts public policy, and that the defendants engaged in unfair trade practices when they participated in arrangement designed to ensure that pharmacy chain maintained its market share to give HMO lower rates.
Click here for the court's order.
Quality Infusion Care Inc. v. Humana HMO Insurance, Case Nos. 07-20703, 07-20887. (Court of Appeals, 5th Cir., 2008)
A home pharmacy provider brought separate state court actions against insurers, seeking payment for home infusion therapy provided for insured patients. The United States District Court for the Southern District of Texas, granted dismissal. The provider's appeals were consolidated. The Federal court found that the provider's state AWP claims were completely pre-empted by ERISA and dismissed the suit.
Click here for the court's order.
"Not Just Old Wine In New Bottles: Kentucky Ass'n Of Health Plans, Inc. v. Miller Bottles, A New Test For State Regulation of Insurance."
38 Akron L. Review 253
Kentucky Association of Health Plans, Inc. v. Miller is an important case that represents a monumental point in ERISA history and insurance law. The Supreme Court established a three-prong test to determine whether an insurer's activity constituted the "business of insurance": "first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry. ... " However, ERISA's savings clause covers only those "conditions on the right to engage in the business of insurance [that] also substantially affect the risk pooling arrangement between the insurer and the insured. The Supreme Court borrowed the test for state insurance regulation and adapted it for employee benefit plan regulation.
Click here for full article.