Any Willing Provider Laws and PBM Network Exclusion

An independent pharmacy that loses its place in a PBM network does not have to accept the exclusion as final. New Jersey, Colorado, and a number of other states have enacted an any willing provider law, also called an any willing pharmacy law, requiring a health plan or PBM network to admit any pharmacy willing to meet the network's standard terms. For a pharmacy facing network termination, an AWP statute can force reinstatement, but only within the limits ERISA preemption places on the health plans that dominate PBM business.

What Any Willing Provider Laws Require

An AWP statute typically requires a health plan or PBM network to accept any pharmacy that agrees to the network's fee schedule, covered services, and quality standards, and it bars exclusion based on ownership type, chain affiliation, or other criteria unrelated to those standard terms. New Jersey's statute, N.J.S.A. 17:48-6j(a)(2), bars denying a pharmacy the right to participate as a preferred provider on the same terms applied to other participating pharmacies. Colorado's statute, at C.R.S. § 10-16-122, names PBMs as a regulated entity directly. The statutory text matters because some states write the requirement into the insurance code aimed at health carriers rather than PBMs, and federal appellate courts have been reluctant to extend those statutes to reach a PBM the text does not name. Before relying on an AWP statute, counsel needs to confirm it actually reaches the PBM doing the excluding, not just the insurer behind it.

The ERISA Preemption Limit

The Employee Retirement Income Security Act (ERISA) preempts state laws that relate to an employee benefit plan, and most large-employer pharmacy benefits run through a self-funded ERISA plan administered by a PBM. In Rutledge v. Pharmaceutical Care Management Association, the Supreme Court held in 2020 that ERISA did not preempt an Arkansas law setting a reimbursement-rate floor for PBMs, because rate regulation does not refer to ERISA plans and applies to a PBM regardless of the plans it services. On remand, the Eighth Circuit applied that reasoning in Pharmaceutical Care Management Association v. Wehbi to uphold a broader set of North Dakota PBM regulations, including ownership limits and disclosure requirements.

Network-access mandates have fared worse. In Pharmaceutical Care Management Association v. Mulready, the Tenth Circuit held in 2023 that ERISA and Medicare Part D preempt the any-willing-pharmacy provision in Oklahoma's pharmacy network law as applied to self-funded ERISA plans and Medicare Part D plans, reasoning that dictating network composition intrudes on plan administration in a way that price regulation does not. The Supreme Court declined to review that ruling in 2025, leaving it as the law within the Tenth Circuit and creating a split with the more permissive Eighth Circuit.

An any willing provider law is strongest against a fully insured or state-regulated plan and weakest against a self-funded ERISA plan, and a pharmacy needs to know which one it is fighting before it relies on the statute alone.

Using an AWP Statute Against Network Exclusion

A pharmacy facing termination or a denied network application should start by identifying the plan type behind the contract at issue. A fully insured commercial plan, a state Medicaid managed care contract, or a state employee health plan sits outside ERISA and gives an AWP statute its full force. A self-funded ERISA plan, particularly after Mulready, gives the PBM a credible preemption defense against a network-composition claim, though a recoupment dispute tied to the same relationship may still survive under Rutledge. A termination for cause tied to a PBM audit finding raises separate contractual and due-process arguments that run alongside an AWP claim, and an audit appeal on the underlying finding can remove the stated basis for the exclusion before the AWP claim is litigated.

Why Early Legal Counsel Is Critical

It is critical that pharmacy owners promptly retain experienced healthcare defense counsel upon receiving a network termination notice, an adverse audit finding, or a denied network application. Early legal intervention can protect the pharmacy's rights, identify whether the plan at issue is self-funded or fully insured, preserve the contractual and statutory defenses available under state law, and allow counsel to communicate with the PBM on the pharmacy's behalf. Delaying legal representation can significantly affect the outcome of a matter and expose the pharmacy to unnecessary risk, particularly once patient relationships have begun to move to other providers.

How Health Law Alliance Can Help

Health Law Alliance represents pharmacies fighting PBM network exclusion and termination as part of the firm's PBM audit defense practice, including the plan-type analysis that determines whether an any willing provider claim, a contractual challenge, or an audit appeal is the stronger path back into the network. If your pharmacy has received a termination notice or been denied network participation, contact us for a free, confidential consultation.