TEXAS ASSOCIATION SUES TO OPEN NETWORK

MICHAEL SLEZAK

AUSTIN, Texas -- The Texas Pharmaceutical Association here has filed suit to get its members access to Prudential Insurance Co. of America's pharmacy provider network.

The result of the suit, however, may turn on whether it is heard in state or federal court, according to Paul Davis, executive director of TPA.

The association "will philosophically have a better shot in state court," Davis said. "It's a state law issue. We'd like to see it in state court. That's where we think we'll get the fairest hearing."

TPA, which has 5,000 members, filed its original case in 98th Judicial District Court in Austin, Texas, on April 28. In its original petition, TPA stated: "Prudential Insurance Co. has persistently and fragrantly violated Article 21.52B, Sec. 2(a) by refusing to permit independent and community pharmacies and pharmacists to participate in its health insurance programs, effectively locking them out and denying them the ability to continue to provide pharmaceutical services and related counseling to their patients.

"Furthermore," the petition continued, "artificial barriers to participation, as well as lack of responsiveness and outright refusal to allow qualified providers to participate are among the examples of Prudential's violation of Article 21.52B and its blatant disregard for the laws of this state."

Davis said the pharmacy association believes Prudential violated the "willing provider" law passed by the Texas legislature in 1991. TPA plans to argue that the law requires "insurance companies to offer to any pharmacy that meets the same terms and conditions as closed-network participants under the state-regulated insurance plans, the opportunity to participate in prescription drug plans."

Prudential filed a motion in late May and had the case remanded to federal court. TPA has since filed a counter-motion to have the case moved back to state court and is awaiting a decision.

Prudential declined to comment.

"It either will come back to state court and be heard by a judge or stay in federal court and be heard by a judge," said Davis. "But we'll move to a hearing one way or the other probably in 30 to 60 days. We're asking for just a simple declaratory judgment."