DRUGS AND THE COURT

A federal court’s rejection of Healthy Maine Prescriptions, a drug plan for the elderly poor, was not surprising after a similar Vermont law was overturned a year ago. But the need for low-cost prescription drugs – for drugs not inflated by unusually high costs from marketing and by enormous profits – remains as strong as ever, and it is up to Congress to make clear that the sort of program Maine began is acceptable and necessary under Medicaid.

Healthy Maine, which provides discounted drugs to more than 112,000 low- and moderate-income residents, was halted Tuesday by the U.S. Court of Appeals for the District of Columbia after the Pharmaceutical Research and Manufacturers of America argued the federal government never should have approved the demonstration project because it required drug manufacturers to pay Medicaid rebates to a non-Medicaid population. Perhaps, but it still leaves the problem of how to help these former beneficiaries afford prescription drugs.

The enormous and growing expense of drugs is caused by many reasons – from the price of wheedling doctors into using a more expensive products ($19 billion last year, according to the General Accounting Office), to profits (the top 14 drug firms last year, Fortune reports, made a combined profit of $38 billion) to billions spent for direct-to-consumer advertising to actual research. Fortune also reports that U.S. pharmaceutical companies collectively ranked first in return on revenues, return on assets and in shareholder equity, a cheery condition for those who bought stocks; an increasingly impossible condition for those trying to afford medicine. These companies are obviously entitled to make whatever profits they can fairly; but their success in doing so suggests, contrary to the claims of some, that research need not suffer if states act to make the drugs more affordable.

When Phrma successfully argued against the Vermont law, Maine Sens. Susan Collins, Olympia Snowe and Vermont Sen. Jim Jeffords introduced legislation to protect these programs but the bill didn’t get very far. The need for it is more apparent than ever. Sen. Collins pledged Tuesday to pursue the legislation; senators in doubt from other states need only ask their governors whether such approval would be helpful and they too would soon be co-sponsors.

Whatever the final outcome of the Healthy Maine court case, the drug lobby will fight this approach state by state until a federal law clarifies Medicaid rules and supports the state attempts to keep drugs at prices people can afford. Otherwise, people dependent on prescription drugs will ultimately pay the cost of Congress’ failure to act.