Many states have enacted any willing provider ("AWP") laws that apply to pharmacy participation in networks. These laws require managed care plans to accept qualified pharmacies to be included in the network where the pharmacy meets, and is willing to accept, the terms and conditions of a managed care plan. However, the explosion of pharmacy benefit managers (PBMs) in the managed care chain has introduced a new wrinkle in the interpretation and application of AWP laws applicable to pharmacies.
Most recently, the Eighth Circuit rejected a pharmacy's argument that PBMs fall within the purview of Mississippi, North Carolina, and Georgia AWP laws by stating that the pharmacy "has pointed to no case law that suggests that these laws apply to PBMs, and we decline to extend the reach of these laws to PBMs as a matter of first impression." The Eighth Circuit found that a PBM does not fit within the definition of a "health benefit plan" as defined by Mississippi, North Carolina, and Georgia.
In sum, the Eighth Circuit's ruling serves as a reminder that AWP laws are not a guaranteed right to network access, especially in states where PBMs are not required to abide by such state AWP laws. Both pharmacies and PBMs alike should be aware of the risks of claims under state AWP laws.
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