Texas Attorney General Opinion: KP-0103 Page: 1 of 5
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KEN PAXTON
ATTORNEY GENERAL OF TEXAS
July 13, 2016
The Honorable Charles Schwertner Opinion No. KP-0103
Chair, Committee on Health and
Human Services Re: The status of Insurance Code article 21.52B,
Texas State Senate the Any Willing Pharmacy statute, in light of
Post Office Box 12068 federal court decisions (RQ-0092-KP)
Austin, Texas 78711-2068
The Honorable Todd Hunter
Chair, Committee on Calendars
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910
Dear Senator Schwertner and Representative Hunter:
You each submitted identical requests asking whether article 21.52B of the Texas
Insurance Code, known as an "any willing pharmacy" or "any willing provider" ("AWP") statute,
is enforceable in light of a 2003 U.S. Supreme Court case, Kentucky Ass 'n of Health Plans, Inc. v.
Miller.' Article 21.52B generally prohibits a health insurance policy or managed care plan from
excluding a pharmacy as a contract provider if the pharmacy agrees to meet all the conditions
required of providers. See TEX. INS. CODE art. 21.52B, 2(a)(2). You tell us that the Texas
Department of Insurance ("Department") currently does not enforce article 21.52B based on a
1997 decision by the U.S. Fifth Circuit Court of Appeals that article 21.52B is preempted by the
federal Employee Retirement Income Security Act of 1974 ("ERISA"). Request Letter at 1-2; see
also Tex. Pharmacy Ass'n v. Prudential Ins. Co. ofAm., 105 F.3d 1035, 1042 (5th Cir. 1997). You
assert that the U.S. Supreme Court "effectively reversed Texas Pharmacy Association" with Miller
and that, as a result, article 21:52B "is and has been enforceable." Request Letter at 5.
ERISA establishes uniform standards for pension and health plans in private industry. See
generally 29 U.S.C. 1001-1461. ERISA preempts all state laws that "relate to" an employee
benefit plan, id 1144(a), but saves from preemption state laws which "regulat[e] insurance." Id
1144(b)(2)(A). In deciding whether article 21.52B regulated insurance so as to fall within the
'See Letter from Honorable Charles Schwertner, Chair, Senate Comm. on Health & Human Servs., to
Honorable Ken Paxton, Tex. Att'y Gen. at 1, 3 (Jan. 26, 2016); Letter from Honorable Todd Hunter, Chair, House
Comm. on Calendars, to Honorable Ken Paxton, Tex. Att'y Gen. at 1, 3 (Jan. 26, 2016),
https://www.texasattomeygeneral.gov/opinion/requests-for-opinions-rqs (collectively, "Request Letter"); see also
Kentucky Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003).
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Texas. Attorney-General's Office. Texas Attorney General Opinion: KP-0103, text, July 13, 2016; (https://texashistory.unt.edu/ark:/67531/metapth1050932/m1/1/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.