PBMs: Fiduciaries or Not?

Another interesting angle to Glanton v. AdvancePCS that I blogged about here is its conclusion that the pharmacy benefit manager at issue in the case "easily fits" the definition of "fiduciary" for purposes of analyzing that issue under ERISA. Last year the U.S. Court of Appeals for the First Circuit came to exactly the opposite conclusion in Pharmaceutical Care Management Association v. Rowe, 429 F.3d 294 (1st Cir. 2005) cert. den. 2006 U.S. LEXIS 4370 which I blogged about at the time here. In Rowe the First Circuit ruled that the efforts of the State of Maine to regulate PBMs were not preempted by ERISA. That case's conclusion that PBMs were not fiduciaries was an important component to its ultimate ruling that Maine's statute was not preempted by ERISA. Interesting facets of the two rulings that may very well end up being part of a Circuit split on an issue sure to be litigated in the future.