High court to hear arguments on Maine drug discount law

Monday, January 20, 2003

SACO, Maine -- Carleen Simpson planned carefully for a retirement that would allow her to travel, including regular trips north of the border for cheaper prescription drugs.

On her first trip, she saved enough money to heat her house for a year.

"I used to worry about being a little old lady eating dog food so I could pay for my prescriptions," Simpson said. "That's a sad situation when you're living in a country that's so wealthy."

Maine legislators passed a groundbreaking law designed to lower drug prices for state residents without insurance coverage, but a drug industry legal challenge has blocked it from going into effect. On Wednesday, the U.S. Supreme Court will hear arguments on an appeal.

The Maine Rx law, enacted in 2000, would let the state negotiate for lower prices on behalf of more than 300,000 residents who pay for prescription drugs. If prices didn't drop in three years, the state could impose price controls.

Twenty-eight states support Maine's position. And a dozen states are poised to act swiftly to adopt similar laws if the Supreme Court rules in Maine's favor, said Bernie Horn, policy director for the Center for Policy Alternatives in Washington.

For states, Maine Rx is attractive because it doesn't require federal approval and it costs taxpayers little.

Three-sided argument

The Pharmaceutical Research and Manufacturers of America, which sued to overturn Maine Rx, contends the law is unconstitutional because it regulates interstate commerce and runs afoul of Medicaid law.

The Supreme Court will hear a three-sided argument Wednesday with lawyers for the state and the drug industry opposing each other, and the Bush administration staking out middle ground by arguing that Maine Rx would be legal if restricted to low-income Mainers instead of being made widely available.

After Maine Rx was put on hold, the state obtained a Medicaid waiver to create the Healthy Maine prescriptions program to give discounts to more than 100,000 residents.

But that, too, was blocked. The Court of Appeals for the District of Columbia ruled that the Healthy Maine Prescriptions program, like a similar measure struck down in Vermont, illegally expanded the Medicaid program.

Drug industry criticized

The pharmaceutical industry has been vilified for fighting Maine Rx by critics who say it is concerned about profits.

But Jeff Trewitt, a spokesman for the trade group, said drug manufacturers are obligated to challenge a law they believe puts politicians in charge of the drugs available to patients.

"We will and should object any time a state advocates a program that hurts poor Medicaid patients and violates federal law," he said.

Simpson, a former bank teller, prepared for retirement by saving money and contributing to an Individual Retirement Account and a 401(k) retirement plan. She has a pension and receives Social Security payments.

She was shocked when she found that her medications ate up nearly her entire monthly Social Security payment.

Some of her drugs are available as generics but others are available only at full price. Together, they would cost her $1,943.38 every six months. In Canada, she pays $910.26.

Prescription drugs are cheaper in Canada largely because of government caps on drug prices there. Federal regulations in the United States allow travelers to bring in a 90-day personal supply.

Simpson, 66, expects to save $2,000 this year by traveling 240 miles to get her drugs in Canada, but she worries about others who aren't healthy enough to make the trip.

"How far does the pharmaceutical industry want to push you? Until you sell your house?" said Simpson, who lives in a two-story duplex she and her 75-year-old husband own with her brother.

Whatever happens before the U.S. Supreme Court, Maine and eight other states are seeking to negotiate bulk drug rates and Maine is seeking revisions to its Medicaid waiver so its Healthy Maine Prescriptions will pass legal muster.

"It has always been our policy not to bet the store on any single strategy," said Human Services Commissioner Kevin Concannon. "I wouldn't rule out other things."

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