Untitled Texas Attorney General Opinion, KP-0103

Texas Insurance Code art. 21.52B (the "Any Willing Pharmacy" statute) prohibits health plans from excluding a pharmacy that meets provider conditions.
In 1997 the Fifth Circuit held art. 21.52B preempted by ERISA in Texas Pharmacy Ass'n v. Prudential Ins. Co. of Am., so Texas did not enforce the statute.
ERISA preempts state laws that "relate to" employee benefit plans but saves state laws that "regulate insurance." The Fifth Circuit applied a three-part test (pre-Miller) and found art. 21.52B failed the test.
In 2003 the U.S. Supreme Court in Kentucky Ass'n of Health Plans, Inc. v. Miller replaced the three-part test with a two-part test: (1) law specifically directed to insurers; and (2) law substantially affects insurer-insured risk pooling.
Subsequent Fifth Circuit authority has applied Miller's test to other Insurance Code provisions and indicated Miller is the operative standard; some panel statements suggest Texas Pharmacy’s reasoning is undermined but Texas Pharmacy has not been expressly overruled.
The Attorney General concludes that, while a court applying Miller would likely find art. 21.52B saved from ERISA preemption, Texas Pharmacy still controls until a court (or en banc Fifth Circuit / Supreme Court) says otherwise, so art. 21.52B remains unenforceable as a matter of law for now.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether art. 21.52B is saved from ERISA preemption under the Supreme Court's post-Miller test	Miller changed the governing test and under Miller art. 21.52B is directed at insurers and affects risk pooling, so it is saved	Fifth Circuit's Texas Pharmacy remains controlling precedent; Miller did not explicitly overrule Texas Pharmacy so Texas Pharmacy continues to preempt art. 21.52B	No definitive legal change: a court applying Miller would likely find art. 21.52B saved, but Texas Pharmacy still controls until a court overrules or revisits it; therefore art. 21.52B remains unenforceable for now
Whether the statute would become effective immediately if a court rejects Texas Pharmacy	If a court determines art. 21.52B is not preempted, the statute remains on the books and would resume effect (citing First Gibraltar)	Department enforcement history does not repeal the statute; only a court ruling can remove the preemption effect	If a court finds it saved, the statute would become effective again; absent such a ruling, it remains preempted

Kentucky Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003) (adopts two-part test for the ERISA insurance regulation savings clause)
Texas Pharmacy Ass'n v. Prudential Ins. Co. of Am., 105 F.3d 1035 (5th Cir. 1997) (holds Tex. Ins. Code art. 21.52B preempted by ERISA under pre-Miller test)
First Gibraltar Bank, FSB v. Morales, 42 F.3d 895 (5th Cir. 1995) (state law not repealed by prior preemption resumes effect once preemption is removed)
Provident Life & Accident Ins. Co. v. Sharpless, 364 F.3d 634 (5th Cir. 2004) (applies Miller test to state insurance provisions)
United States v. Boche-Perez, 755 F.3d 327 (5th Cir. 2014) (explains rule of orderliness and when a panel may depart from prior circuit precedent)
Does 1-7 v. Round Rock Indep. Sch. Dist., 540 F. Supp. 2d 735 (W.D. Tex. 2007) (district courts may recognize when Supreme Court decisions implicitly overrule circuit precedent)
Ward v. Chamberlain, 67 U.S. 430 (1862) (courts may construe but not repeal legislative provisions)
District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953) (executive nonenforcement does not repeal a statute)