6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 1 of 43
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF OKLAHOMA
`
`THE CHICKASAW NATION,
`
`Plaintiff,
`
`v.
`
`1. CVS CAREMARK, LLC;
`2. CAREMARK PHC, LLC;
`3. CAREMARK PCS HEALTH, LLC;
`4. CAREMARK, LLC;
`5. CAREMARK RX, LLC;
`6. AETNA, INC.;
`7. AETNA HEALTH, INC.;
`8. OPTUMRX, INC.;
`9. OPTUM, INC.;
`10. UNITED HEALTHCARE SERVICES,
`INC.; and
`11. UNITEDHEALTH GROUP, INC.
`
`Defendants.
`
`20-CV-488-KEW
`Civil Action No. _____________
`
`COMPLAINT
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 2 of 43
`
`
`
`I.
`
`II.
`
`III.
`
`IV.
`
`TABLE OF CONTENTS
`
`
`
`INTRODUCTION ...............................................................................................................3
`
`PARTIES .............................................................................................................................6
`
`A.
`
`B.
`
`C.
`
`The Chickasaw Nation (Plaintiff) ............................................................................6
`
`CVS Defendants.......................................................................................................7
`
`Optum Defendants .................................................................................................11
`
`JURISDICTION AND VENUE ........................................................................................13
`
`LEGAL FRAMEWORK ...................................................................................................14
`
`A.
`
`B.
`
`Indian Health Service Provides Funding for the Nation’s Healthcare ...................14
`
`The IHCIA Authorizes the Nation to Recoup from Third Parties the Cost
`of Services Provided to the Nation’s Members .....................................................17
`
`V.
`
`FACTUAL ALLEGATIONS ............................................................................................18
`
`A.
`
`B.
`
`C.
`
`D.
`
`Defendants Profit from PBM Services at the Expense of Patient Care .................19
`
`The Nation Operates ITU Pharmacies, Which Are Federally Exempt
`from Defendants’ Schemes ....................................................................................22
`
`1.
`
`2.
`
`The Nation Is Entitled to Recoup Service Costs from Defendants
`under the Recovery Act .............................................................................24
`
`Defendants Are Subject to the Recovery Act ............................................25
`
`Defendants Violate the Recovery Act....................................................................25
`
`Defendants Leverage Discount Programs to Unlawfully Hinder the
`Nation’s Recoupment Benefit ................................................................................27
`
`1.
`
`2.
`
`3.
`
`Discount Programs Create Significant Profit for PBMs ............................27
`
`ITU Pharmacies Traditionally Ignored Discount Programs ......................29
`
`Defendants Inextricably Integrated Their Discount Program
`Information into Members’ Insurance Information ...................................29
`
`i
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 3 of 43
`
`
`
`4.
`
`Defendants’ Integrated Discount Program Information Forces the
`Nation to Either Pay or Forgo Recovery under the Recovery Act ............30
`
`E.
`
`F.
`
`Defendants Continually and Intentionally Refuse to Repay the Nation ................34
`
`Defendants’ Conduct Impairs the Quality of the Nation’s Healthcare
`Program ..................................................................................................................35
`
`VI.
`
`COUNTS............................................................................................................................36
`
`VII.
`
`PRAYER FOR RELIEF ....................................................................................................41
`
`VIII.
`
`JURY DEMAND………………………………………………………………………...42
`
`ii
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 4 of 43
`
`
`
`I.
`
`INTRODUCTION
`
`1.
`
`This case arises under federal laws1 guaranteeing Native Americans access to
`
`healthcare. With the support of these laws, Plaintiff the Chickasaw Nation (the “Nation”) has
`
`established a robust and sophisticated healthcare system, which includes several ITU Pharmacies2
`
`throughout the territory of the Chickasaw Nation. The Nation’s ITU Pharmacies provide services
`
`to members of federally recognized Native American nations (“Members”), including many
`
`citizens of Oklahoma.
`
`2.
`
`Pursuant to federal law, Members are eligible to receive health care (including
`
`pharmacy services) at the Nation’s facilities at no charge. The Member pays no co-pay or other
`
`fees for healthcare services, including prescription medications he or she receives from the
`
`Nation’s ITU Pharmacies. However, the ITU Pharmacy must still pay for the costs of the
`
`medications it dispenses to Members. To offset these costs, the Nation has the right to recoup the
`
`costs of covered services the Nation provides to a Member from any applicable insurance coverage
`
`the Member may have. The Nation therefore enjoys the status of a “payor of last resort.” Clear,
`
`unambiguous federal laws guarantee this right.
`
`3.
`
`Defendants ignore these laws. Defendants make up two of the largest vertically
`
`integrated pharmacy conglomerates in the U.S. They consist of captive Pharmacy Benefit
`
`
`1 25 U.S.C. § 1621, et seq.; see Section IV—“Legal Framework”, infra.
`2 “ITU Pharmacies” are those pharmacies operated by Indian Health Service (“IHS”), an Indian
`tribe or tribal organization, or an urban Indian organization, all of which are defined in Section 4
`of the Indian Health Care Improvement Act (“IHCA”), 25 U.S.C. 1603. The Nation’s pharmacies
`are ITU Pharmacies.
`When a Member of any Nation visits an ITU Pharmacy (whether run by that Member’s respective
`nation or another nation), that Member receives services for no charge, and that ITU Pharmacy
`has a 25 U.S.C. § 1621e right of recoupment against the Member’s insurer (if the Member has
`coverage).
`
`3
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 5 of 43
`
`
`
`Managers (“PBMs”), along with large health insurance plans and networks. They provide and
`
`manage many of the insurance programs covering Members. The CVS Defendants3 allocate a
`
`significant portion of their management services to (and derive a complementary proportion of
`
`revenue from) their captive pharmacy benefits plan under the subsidiary, Defendant Aetna.
`
`Similarly, the Optum Defendants4 allocate a significant portion of their management services to
`
`(and derive a complementary proportion of revenue from) the pharmacy benefit plans of the Optum
`
`parent company—Defendant United Health Group. Of course, these relationships make up a
`
`respectively predominant portion of each of the CVS and United Health Group conglomerate’s
`
`revenue stream and allow Defendants to exert significant and substantial control over the pharmacy
`
`market.
`
`4.
`
`In approximately 2015, the Nation’s ITU Pharmacies began experiencing numerous
`
`and unprecedented claim denials. These denials emanated from Defendants’ various PBM entities
`
`on behalf of the respective health benefits plans they managed (predominantly, Aetna and United
`
`Health Group plans). Defendants began denying claims—claims for covered drugs, for which the
`
`Nation had previously submitted and received reimbursement without issue—for reasons that have
`
`no applicability whatsoever to ITU Pharmacies. These denials were based on Defendants’ retail
`
`pharmacy rules from which the Nation is exempt.5 These claim denials violate specific provisions
`
`
`3 The “CVS Defendants” are Defendants CVS Caremark, LLC; Caremark PHC, LLC;
`CaremarkPCS Health, L.L.C.; Caremark, L.L.C.; Caremark Rx, L.L.C.; Aetna, Inc.; and Aetna
`Health, Inc. See Section II—Parties, infra.
`4 The “Optum Defendants” are OptumRx, Inc.; OptumRx Holdings, LLC; Optum, Inc.;
`UnitedHealth Group, Inc.; and United Healthcare Services, Inc. See Section II—Parties, infra.
`5 See Section V.B., infra. These unlawful denials were based on many of Defendants’ retail
`pharmacy rules, which are wholly inapplicable to ITU Pharmacies. These rules include but are not
`limited to requirements that (a) patients use a specialty pharmacy to fill certain prescriptions; (b)
`patients visit an in-network pharmacy; or (c) patients use a mail-order pharmacy. While these
`
`4
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 6 of 43
`
`
`
`of the 1976 Indian Health Care Improvement Act (“IHCIA”) and deprive the Nation of critical
`
`healthcare funding. They impact the livelihood of some of the most vulnerable Native American
`
`Member-patients.
`
`5.
`
`In further violation of the law, Defendants employ a novel scheme whereby they
`
`effectively compel the Nation’s ITU Pharmacies to participate in their many drug discount
`
`programs. Because Members pay no fee for their prescription medications and other pharmacy
`
`services at ITU Pharmacies, Defendants’ discount programs create a loss for ITU Pharmacies.
`
`Discount program information was, until recently, separate and distinct from the insurance benefit
`
`information an ITU Pharmacy needed to file a reimbursement claim to the insurer. The ITU
`
`Pharmacy could avoid the forced loss by simply removing the discount information from a
`
`Member-patient’s file. But now, Defendants have inextricably integrated discount program
`
`information with Member’s insurance information. Therefore, the Nation must either (a)
`
`participate in the drug discount programs at a loss or (b) forgo reimbursement that is guaranteed
`
`and protected by federal law and essential to the Nation’s healthcare budget. This constitutes an
`
`unlawful hindrance of the Nation’s ability to avail itself of the federal recoupment provision. See
`
`25 U.S.C. § 1621e(c).6
`
`6.
`
`Defendants knowingly, intentionally, and unjustifiably refuse to pay to the Nation
`
`the funds it is entitled to recoup for pharmaceutical benefits, medical devices, and other products
`
`and services provided to Members with Defendant-administered and/or -issued coverage.
`
`
`requirements may be contractually valid between Defendants and a retail pharmacy, Defendants
`cannot deny reimbursement claims from ITU Pharmacies for these reasons. See 25 U.S.C. § 1621e.
`6 Reimbursement from insurers does not offset, reduce, or otherwise impact the amount of
`healthcare funding the Nation receives from other sources, including the federal Government. The
`funds Defendants wrongfully withhold from the Nation would otherwise increase the Nation’s
`healthcare budget and allow it to serve its at-need population. Defendants thereby act in direct
`contravention of federal policy promoting health care for Native Americans.
`
`5
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 7 of 43
`
`
`
`Defendants blatantly and intentionally ignore their legal obligation to the Nation. They have, for
`
`years, ignored the Nation’s requests for both repayment and explanation.
`
`7.
`
`After myriad attempts to resolve Defendants’ wrongs, the Nation now seeks relief
`
`from this Court in the form of payment of all withheld costs of pharmaceutical benefit services the
`
`Nation provided, and continues to provide, to Members from Defendants—as insuring and/or
`
`administering the insurance plans of those Members—as well as equitable relief to prevent the
`
`Defendants’ wrongful acts from continuing.
`
`II.
`
`PARTIES
`
`A.
`
`The Chickasaw Nation (Plaintiff)
`
`8.
`
`The Chickasaw Nation (the “Nation”) is a sovereign and federally recognized
`
`Native American tribal nation headquartered at 520 E. Arlington Street, Ada, Oklahoma 74820.
`
`The Nation has a vibrant and unique cultural heritage, along with a strong tradition of organized
`
`self-government. The Nation pursues its stated mission of enhancing the overall quality of life of
`
`the Chickasaw people in part through its healthcare system. Through perseverance and
`
`extraordinary effort, along with the support of federal funding and recoupment from insurers under
`
`25 U.S.C. § 1621e, the Nation has developed a comprehensive healthcare system, which includes
`
`several ITU Pharmacies throughout the Nation and located in the State of Oklahoma. In accordance
`
`with the intent of federal programs supporting the Nation, the Nation’s ITU Pharmacies provide
`
`prescription medications (and even the most expensive specialty medications) at absolutely no cost
`
`to Members. This is supported by the recoupment provisions codified in 25 U.S.C. § 1621e, as
`
`explained in Section IV, infra.
`
`
`
`
`
`6
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 8 of 43
`
`
`
`B.
`
`CVS Defendants
`
`9.
`
`The pharmacy conglomerate operating under the brand “CVS” is one of the largest
`
`companies in the U.S. It is currently listed as number five in the Fortune 500 list.7 CVS is a
`
`vertically integrated healthcare company: it operates one of the nation’s largest retail pharmacy
`
`network, owns the largest PBM—Caremark, and is the nation’s largest provider of individual Part
`
`D prescription drug plans, with over 7.6 million enrollees as of 2019. The CVS conglomerate earns
`
`billions of dollars in annual revenue.
`
`10.
`
`In acquiring Aetna in 2018, CVS purchased the nation’s third-largest health-
`
`insurance company and fourth-largest individual Part D insurer. Aetna was required to sell off its
`
`standalone Medicare D prescription drug plan as part of the merger. Aetna sold it to WellCare, and
`
`CVS Caremark is now the PBM and third-party administrator for WellCare.
`
`11.
`
`The CVS conglomerate is wholly owned and controlled by the holding company
`
`CVS Health Corporation.8
`
`12.
`
`As used throughout this Complaint, the “CVS Defendants” are Defendants CVS
`
`Caremark, LLC; Caremark PHC, LLC; CaremarkPCS Health, L.L.C.; Caremark, L.L.C.;
`
`Caremark Rx, L.L.C.; Aetna, Inc.; and Aetna Health, Inc. On information and belief, each is a
`
`wholly owned subsidiary of the CVS Health Corporation holding company or one of CVS Health
`
`Corporation’s wholly owned subsidiaries.9
`
`13.
`
`Defendant CaremarkPCS Health, L.L.C. and Caremark L.L.C. are agents and/or
`
`alter egos of Defendant Caremark Rx, L.L.C., and Defendant Caremark Rx, L.L.C. is an agent
`
`
`7 See Fortune 500 List, available at https://fortune.com/fortune500/ (last visited Aug. 4, 2020).
`8 See CVS Health Corporation SEC Form 10-k for fiscal year ended Dec. 31, 2019, available at
`https://www.sec.gov/ (last visited Aug. 09, 2020).
`9 See Id.
`
`7
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 9 of 43
`
`
`
`and/or alter ego of CVS Health. For example, Jonathan C. Roberts, CEO of Caremark Rx, L.L.C.,
`
`is Executive Vice President and Chief Operating Officer of CVS Health Corporation. Thomas S.
`
`Moffatt, Secretary of Caremark Rx, L.L.C. and Caremark, L.L.C., is a Vice President, Assistant
`
`Secretary, and Assistant General Counsel at CVS Health Corporation. Anne E. Klis, CEO of
`
`Caremark, L.L.C., is Vice President of Professional Practice and Training at CVS Health
`
`Corporation. Daniel P. Davison, CEO of CaremarkPCS Health, L.L.C., is Senior Vice President
`
`of Finance at CVS Health Corporation. Melanie K. Luker, Assistant Secretary of CaremarkPCS
`
`Health, L.L.C., is Manager of Corporate Services at CVS Health Corporation.
`
`1.
`
`14.
`
`Defendant CVS Caremark, LLC
`
`Defendant CVS Caremark, LLC (“CVS Caremark”) is the PBM and third-party
`
`administrator subsidiary of CVS Health; it administers pharmacy benefits for insurance
`
`companies, managed care organizations, and public and private health plans and organizations.
`
`15.
`
`In March 2007, Caremark merged with CVS Corporation to create CVS Caremark,
`
`later re-branded under the CVS Health catch-all holding company. Today, CVS Caremark controls
`
`approximately thirty percent (30%) of the U.S. PBM market.
`
`16.
`
`As a PBM and third-party administrator, CVS Caremark is solely responsible for
`
`managing its clients’ plans in accordance with each plan’s provisions. Each plan has benefits and
`
`restrictions, such as only covering prescriptions filled at certain pharmacies.
`
`17.
`
`CVS Caremark is a Delaware limited liability company and an immediate or
`
`indirect parent of many subsidiaries, including pharmacy benefit management and mail order
`
`subsidiaries.
`
`
`
`
`
`8
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 10 of 43
`
`
`
`2.
`
`18.
`
`Defendant Caremark PHC, LLC
`
`Defendant Caremark PHC, LLC (“Caremark PHC”) is a limited liability
`
`corporation that is a wholly owned subsidiary of CVS Health. On information and belief, Caremark
`
`PHC, LLC is part of CVS Health’s PBM business model.
`
`19.
`
`Caremark PHC is registered to do business in Oklahoma and may be served with
`
`process through its registered agent, The Corporation Company, 1833 South Morgan Road,
`
`Oklahoma City, Oklahoma, 73128.
`
`3.
`
`20.
`
`Defendant Caremark PCS, LLC
`
`Defendant CaremarkPCS Health, L.L.C., formerly known as Caremark PCS
`
`Health, L.P., is a Delaware limited liability corporation. It was incorporated in 2002 and is
`
`headquartered at 750 West John Carpenter Freeway, Irving, Texas 75039. CaremarkPCS Health,
`
`L.L.C., d/b/a CVS Caremark, provides pharmacy benefit management services to various health
`
`insurance entities. CaremarkPCS Health, LLC is a wholly owned subsidiary of CVS Health.
`
`21.
`
`Caremark PCS Health, LLC is registered to do business in Oklahoma and may be
`
`served with process through its registered agent, The Corporation Company, 1833 South Morgan
`
`Road, Oklahoma City, Oklahoma, 73128.
`
`4.
`
`22.
`
`Defendant Caremark, LLC
`
`Defendant Caremark, L.L.C., a California
`
`limited
`
`liability company,
`
`is
`
`headquartered at 2211 Sanders Road, Northbrook, Illinois 60062-6128. Caremark, L.L.C. offers
`
`pharmacy benefit management services to various health insurance entities. Caremark, L.L.C. is a
`
`wholly owned subsidiary of CVS Health Corporation.
`
`23.
`
`Caremark, LLC is registered to do business in Oklahoma and may be served with
`
`process through its registered agent, The Corporation Company, 1833 South Morgan Road,
`
`Oklahoma City, Oklahoma, 73128.
`
`9
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 11 of 43
`
`
`
`5.
`
`24.
`
`Defendant Caremark RX, LLC
`
`Defendant Caremark Rx, L.L.C., a Delaware limited liability company, is
`
`headquartered at 211 Commerce Street, Nashville, Tennessee 37201. Caremark Rx, L.L.C.
`
`provides pharmacy benefit management services. Caremark Rx, L.L.C. is a wholly owned
`
`subsidiary of CVS Health Corporation. Caremark Rx, L.L.C. is the parent of Defendant CVS
`
`Health Corporation’s pharmacy services subsidiaries and is the immediate or indirect parent of
`
`many pharmacy benefit management subsidiaries, including Defendant CaremarkPCS Health,
`
`L.L.C.
`
`6.
`
`25.
`
`Defendant Aetna, Inc.
`
`“Aetna” is the brand name for insurance products issued by the subsidiary insurance
`
`companies controlled by Defendant Aetna, Inc. Aetna was merged into the CVS conglomerate in
`
`2018.
`
`26.
`
`Aetna, Inc. offers employee health benefit plans insuring Members. Aetna’s Health
`
`benefits and health insurance plans are offered and/or underwritten by Aetna Health, Inc., et al. On
`
`November 28, 2018, CVS completed its acquisition of Aetna.
`
`27.
`
`Aetna, Inc. is responsible for denying the Nation’s claims under 25 U.S.C. § 1621e
`
`by means of its parents CVS Caremark and CVS Health’s PBM.
`
`28.
`
`Aetna, Inc. is headquartered at 151 Farmington Avenue, Hartford, Connecticut
`
`06156.
`
`7.
`
`29.
`
`Defendant Aetna Health, Inc.
`
`Aetna Health, Inc. is a licensed insurer in Oklahoma. It may be served with process
`
`through its registered agent, The Corporation Company, at 1833 South Morgan Road, Oklahoma
`
`City, Oklahoma 73128.
`
`
`
`
`
`10
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 12 of 43
`
`
`
`C.
`
`Optum Defendants
`
`30.
`
`Optum is a branded part of UnitedHealth Group Incorporated, a for-profit managed
`
`health care company based in Minnetonka, Minnesota.10
`
`31.
`
`Defendant UnitedHealth Group Inc. has two main divisions: UnitedHealthcare,
`
`which provides health benefits, and Optum, which provides health services, including pharmacy
`
`benefit management services.
`
`32.
`
`In 2011, United Health Group formed the Optum brand by merging its existing
`
`pharmacy and care delivery services into the single unit, comprised of three main businesses:
`
`OptumHealth, OptumInsight, and Defendant OptumRx (UnitedHealth Group’s PBM). Through its
`
`Optum brand, the company focuses on data and analytics, pharmacy care services, population
`
`health, healthcare delivery and healthcare operations.
`
`33.
`
`The “Optum Defendants” are OptumRx, Inc.; OptumRx Holdings, LLC; Optum,
`
`Inc.; UnitedHealth Group, Inc.; and United Healthcare Services, Inc.
`
`1.
`
`34.
`
`Defendant OptumRX, Inc.
`
`Defendant OptumRX, Inc. (“OptumRX”) is UnitedHealth Group’s pharmacy
`
`benefit manager and care services group. It operates across 150 countries in North America, South
`
`America, Europe, Asia Pacific, and the Middle East. OptumRX is the pharmacy benefit services
`
`subsidiary of UnitedHealth Group, Inc. OptumRx holds approximately 23% of the U.S. PBM
`
`market.
`
`
`10 See UnitedHealth Group Incorporated SEC Form 10-k for fiscal year ended December 31,
`2019, available at https://www.sec.gov (last visited Aug. 1, 2020).
`
`11
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 13 of 43
`
`
`
`35.
`
`OptumRX is responsible for issuing unlawful denials of the Nation’s claims under
`
`25 U.S.C. § 1621e on behalf of its parent UnitedHealth Group’s various insurance benefits plans,
`
`as well as other plans OptumRX manages for other insurers.
`
`36.
`
` OptumRX is a California corporation. Its principal place of business is the
`
`UnitedHealth Group headquarters in Minnetonka, Minnesota. OptumRX is registered to do
`
`business in Oklahoma and may be served with process through its registered agent, The
`
`Corporation Company, at 1833 S. Morgan Road, Oklahoma City, Oklahoma 73128.
`
`2.
`
`37.
`
`Defendant United HealthCare Services, Inc.
`
`Defendant United HealthCare Services, Inc. is headquartered at 9700 Health Care
`
`Lane, Minnetonka, Minnesota and incorporated in Minnesota. United HealthCare Services, Inc. is
`
`a subsidiary of Defendant UnitedHealth Group, Inc. and provides pharmacy benefit management
`
`services through its subsidiaries to various health insurance entities. According to Exhibit 21.1 to
`
`UnitedHealth Group Incorporated’s 2016 Securities and Exchange Commission Form 10-K,
`
`United HealthCare Services, Inc. also does business as Optum, Inc.
`
`3.
`
`38.
`
`Defendant Optum, Inc.
`
`Optum, Inc. is a PBM headquartered at 11000 Optum Circle, Eden Prairie,
`
`Minnesota and incorporated in Delaware. Optum, Inc. is a subsidiary of UnitedHealthcare
`
`Services, Inc., which provides pharmacy benefit management services through its subsidiaries to
`
`various health insurance entities on behalf of more than 65 million plan participants.
`
`4.
`
`39.
`
`Defendant OptumRx Holdings, LLC
`
`OptumRx Holdings, LLC is headquartered at 11000 Optum Circle, Eden Prairie,
`
`Minnesota, 55344-2503.
`
`
`
`
`
`12
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 14 of 43
`
`
`
`5.
`
`40.
`
`Defendant UnitedHealth Group, Inc.
`
`UnitedHealth Group’s various insurance benefits plans unlawfully denied the
`
`Nation’s claims under 25 U.S.C. § 1621e by means of its captive PBM, Defendant OptumRX.
`
`41.
`
`UnitedHealth Group, Inc. is a Delaware corporation with its principle place of
`
`business in Minnetonka, Minnesota.
`
`III.
`
`JURISDICTION AND VENUE
`
`42.
`
`This Court may properly exercise jurisdiction over the subject matter of this suit
`
`under 28 U.S.C. § 1331 as the case arises under the IHCIA (see Section IV, infra) and 25 U.S.C.
`
`§ 1621, et al. Furthermore, this Court may properly exercise jurisdiction over the subject matter
`
`of this suit under 28 U.S.C. § 1362, as this matter is brought by a federally recognized Native
`
`American Nation.
`
`43.
`
`This Court may properly exercise jurisdiction over the parties to this suit. The
`
`Nation consents to this Court’s exercise of jurisdiction over it for the purposes of this suit.
`
`Defendants have sufficient minimum contacts with the State of Oklahoma, including but not
`
`limited to the marketing, sale, and execution of contracts for PBM services in Oklahoma, as well
`
`as the repeated denial of claims for recoupment of costs of goods and services (a) provided by the
`
`Nation to Members in Oklahoma and (b) sent to Defendants’ from Oklahoma. Defendants have
`
`purposefully availed themselves of the privilege of conducting business in Oklahoma such that
`
`they are subject to suit here. Additionally, Defendants have targeted their wrongful conduct at
`
`Members of the Nation in Oklahoma. The Nation’s claims arise out of and relate to Defendants’
`
`contacts with the State. This Court’s exercise of jurisdiction is reasonable; the maintenance of this
`
`suit does not offend traditional notions of fair play and substantial justice.
`
`44.
`
`Venue is proper within this judicial district pursuant to 28 U.S.C. § 1391. This
`
`action arises out of events, acts, and omissions that occurred in the Eastern District of Oklahoma.
`
`13
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 15 of 43
`
`
`
`Specifically, the Nation provided services to its Members through its ITU Pharmacies in this
`
`District. Those services gave rise to the Nation’s claims for reimbursement from Defendants and
`
`Defendants’ legal obligation to pay the Nation for those services rendered in this District. The
`
`Nation sent those claims to Defendants from this District, and Defendants disseminated their
`
`unlawful denials to the Nation in this District. Defendants’ failure to pay the Nation’s claim for
`
`reimbursement is the subject of this action.
`
`IV.
`
`LEGAL FRAMEWORK
`
`45.
`
`The Federal Government’s obligation to provide for, maintain, and improve the
`
`health of Native Americans is manifest and inherent to Congress’s federal trust responsibility for
`
`Native American nations. See 25 U.S.C. § 1601. It is grounded in both moral imperative and public
`
`health necessity. See id. To that end, Congress has passed several laws that guarantee Native
`
`Americans access to healthcare and provide Native American nations the financial support they
`
`require to develop and implement robust healthcare programs. This suit arises from Defendants’
`
`unlawful and unconscionable disregard of these laws.
`
`46.
`
`This section describes in detail the mechanisms through which the federal
`
`government provides funding to the Nation for healthcare services and has empowered the Nation
`
`to build its own sophisticated healthcare system. This section then proceeds to explain the federally
`
`enacted recoupment mechanism codified in 25 U.S.C. § 1621e, whereby the Nation may recover
`
`the cost of healthcare services it provides Members from third-parties responsible for those
`
`Members’ coverage.
`
`A.
`
`Indian Health Service Provides Funding for the Nation’s Healthcare
`
`47.
`
`Indian Health Service (“IHS”) is a federal agency within the Department of Health
`
`and Human Services that is responsible for providing health care and medical services to federally
`
`recognized Native American nations. IHS is not a health insurance program; rather, it is a federally
`
`14
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 16 of 43
`
`
`
`funded health service provider akin to the Veterans Health Administration that provides health
`
`services directly to beneficiaries or in conjunction with Native American nations.11
`
`48.
`
`IHS strives “to raise the physical, mental, social, and spiritual health of [Native
`
`Americans] to the highest level” and “to assure that comprehensive, culturally acceptable personal
`
`and public health services are available and accessible to [Native American] people.”12 All actions
`
`IHS carries out are “directed toward developing an efficient and effective health care delivery
`
`system and promoting [Native American] participation and management of their own health care
`
`systems.”13
`
`49.
`
`IHS provides this critical funding in two ways: (1) IHS provides services to Native
`
`American nations directly, and/or (2) IHS provides funding and support to Native American
`
`nations that have the ability to provide the services themselves.
`
`50.
`
`Over the past several decades, many Native American nations have moved away
`
`from IHS-controlled health care toward systems they control and direct themselves. Under the
`
`1975 Indian Self-Determination and Education Assistance Act (“ISDEAA”), 25 U.S.C. § 5301, et
`
`seq., nations may assume control over the management of their health care by negotiating “self-
`
`determination contracts” with IHS.14 The ISDEAA reflects modern federal policy of tribal self-
`
`
`11 IHS is one of four similar foundational federal health delivery systems: IHS, Veterans Health
`Administration, Defense Health Agency, and Bureau of Prisons Health Services Division.
`12 Indian Health Services, available at https://www.ihs.gov/aboutihs/ (last visited Feb. 28, 2020).
`13 Id.
`14 25 U.S.C. § 5304(j) (2012) (defining “self-determination contract” as “a contract (or grant or
`cooperative agreement utilized under section 5308 of this title) entered into under subchapter I of
`this subchapter between a tribal organization and the appropriate secretary for the planning,
`conduct and administration of programs or services which are otherwise provided to Indian tribes
`and their members pursuant to Federal law”).
`
`15
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 17 of 43
`
`
`
`determination, whereby nations may build the capacity to perform essential governmental
`
`functions, improve the programs themselves, and respond directly to their own needs.15
`
`51.
`
`One can find no better example of self-determination than the Chickasaw Nation
`
`Department of Health’s network of robust and sophisticated health clinics and ITU Pharmacies,
`
`which the Nation developed pursuant to its Title V Self-Governance Compact.
`
`52.
`
`In furtherance of ISDEAA policy, Congress enacted the Indian Health Care
`
`Improvement Act (“IHCIA”) in 1976 to assist Native American nations with their health
`
`initiatives.16 The IHCIA was designed to enhance access to and quality of health care services for
`
`Native Americans. In fact, the IHCIA was the first federal legislation to enact specific statutory
`
`programs for Native American healthcare. In the IHCIA, as amended, Congress established a
`
`national policy intended to ameliorate long-standing health care disparities and to provide
`
`increased and more effective health care services to Native Americans.
`
`53.
`
`The IHCIA is the cornerstone legal authority for the provision of health care to
`
`Native Americans. Notably, the IHCIA amended the Social Security Act to permit reimbursement
`
`by Medicare and Medicaid for services provided to Native Americans in IHS and tribal health care
`
`facilities. In doing so, Congress recognized that many Native Americans, especially those residing
`
`in very remote and rural locations, were eligible for but could not access federally-funded
`
`healthcare services without traveling sometimes hundreds of miles to qualified providers located
`
`
`15 Under Title I of the ISDEAA, a nation may contract with IHS to conduct and administer certain
`portions of its health program which were previously operated by IHS (“Title I Self-Determination
`Contracting”). Under Title V, a nation can exercise more independence by taking over the
`operation of its health program in its entirety (“Title V Self-Governance Compacting”). Under
`both Title I Contracts and Title V Compacts, IHS continues to fund all health services. These
`methods are not mutually exclusive. These are collectively referred to as “638 Compacts” after
`Public Law 93-638 (i.e., the ISDEAA).
`16 The 2010 Affordable Care Act (P.L. 110-148) significantly reorganized and permanently
`reauthorized the IHCIA.
`
`16
`
`

`

`6:20-cv-00488-PRW Document 2 Filed in ED/OK on 12/29/20 Page 18 of 43
`
`
`
`off reservation: “[f]ederal health services to maintain and improve the health of the [Native
`
`Americans] are consonant with and required by the Federal Government’s historical and unique
`
`legal relationship with and resulting responsibility to the American Indian people.” 25 U.S.C. §
`
`1601(1). And, the IHCIA provides a key reimb