• October 21, 2020

4 non-ACA cases the Supreme Court could consider this term

Oct 16, 2020

While Senate Democrats have focused most of their energy in Judge Amy Coney Barrett’s confirmation hearings warning that the Supreme Court could strike down the Affordable Care Act, the court may also consider several other cases this term with big implications for the healthcare industry.

When Barrett joins the court she will also have a choice in which cases are chosen for consideration.

Rutledge v. Pharmaceutical Care Management Association

The Supreme Court already heard oral arguments in a case that would determine states’ authority to regulate pharmacy benefit managers on Oct. 6.

The conflict in the case is over an Arkansas law that requires PBMs to pay pharmacies at least the price stated by the pharmacy’s wholesaler and regularly update their Maximum Allowable Cost price lists. The law also outlines a process for pharmacies to appeal particular MACs.

During oral arguments, several justices asked about the burden health plans face since many states have a patchwork of PBM regulations.

The case could have implications for the more than 40 different state standards for regulating PBMs, and potentially for regulation of other employee benefits as well.

Barrett will not vote in the case unless the justices decide to hold a re-hearing.

AMG Capital Management v. Federal Trade Commission

The Supreme Court has agreed to take up a case that will evaluate the FTC’s authority to sue and seek monetary penalties, which is one of the FTC’s most important enforcement tools.

Surescripts argued that the FTC’s ability seek monetary relief should be taken away in an amicus brief before the court. The FTC sued Surescripts in April 2019 for allegedly monopolizing portions of the e-prescription market.

Pharmaceutical Research and Manufacturers of America also filed an amicus brief arguing that the FTC’s authority to seek monetary penalties under a certain part of the FTC Act should be limited because it causes market uncertainty and expands liability without enough protections for corporations.

Oral arguments have not yet been scheduled.

Arkansas v. Gresham
Arkansas has asked the Supreme Court to revive the state’s Medicaid work requirements, maintaining that the program was meant to test if it would improve health outcomes. The Supreme Court has not yet decided whether it will take up the case.

The Court of Appeals for the D.C. Circuit in February said the lower court was right to toss Kentucky and Arkansas’ work requirements.

The case could have implications for work requirements across the country, as Arkansas and Kentucky are serving as legal test cases.

American Medical Association v. Azar
The American Medical Association, Planned Parenthood Federation of America, the American Civil Liberties Union and others on Oct. 1 asked the Supreme Court to review conflicting circuit court decisions on the validity of a Trump administration rule that made changes to the Title X family planning program.

The Trump administration barred Planned Parenthood affiliates from the $290 million Title X program with a policy that bans federally funded clinics from referring a patient for an abortion unless the patient directly asks.

The U.S. Court of Appeals for the 4th Circuit found the Title X rule invalid, but the 9th Circuit upheld it. The Supreme Court has not yet granted certiorari.

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