Maine Rx headed to high court Drug law scheduled to be heard Wednesday

SACO – Carleen Simpson planned carefully for a comfortable retirement that would allow her to travel.

A year later, the former bank teller is making Canada a regular part of her travels so she can save money on six prescription drugs. This year, Canadian drugs 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,” said Simpson, sitting at her kitchen table with a mug of coffee after taking her daily medications. “That’s a sad situation when you’re living in a country that’s so wealthy.”

A Maine law designed to lower drug prices for Simpson and others without insurance coverage for prescription drugs will go before the U.S. Supreme Court on Wednesday.

Maine Rx was hailed as a groundbreaking law in 2000 but it never went into effect because of legal challenges.

It 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.

For states, Maine Rx is an attractive option because it doesn’t require federal approval and it costs taxpayers little at a time when state finances are in the worst shape since World War II.

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.

Wednesday will bring a three-sided argument 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 available to everyone.

Human Services Commissioner Kevin Concannon, a defendant in the lawsuit, said rising drug prices, stressed state finances and an aging population have put the issue on the front burner.

“This has profound implications for elderly people and people who need medications,” Concannon said.

Maine Rx was struck down by a federal judge in Maine before being upheld on appeal. With the law on hold, the state obtained a Medicaid waiver to create the Healthy Maine prescriptions program to give discounts to more than 100,000 Mainers.

But that, too, was blocked by a court ruling on Christmas Eve, raising the stakes in the outcome of the Maine Rx case.

The pharmaceutical industry has been vilified for fighting Maine Rx by critics who say the drug industry wants to stop a potential domino effect that would cut into its 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.

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

That’s of little consolation to Simpson.

She prepared for last year’s retirement by contributing to an Individual Retirement Account and a 401(k) retirement plan and saving her money. She receives monthly pension and Social Security payments.

Despite her preparations, she was shocked to learn that her medications ate up nearly her entire monthly Social Security payment. Her only alternative was a bus trip to Canada to get her prescriptions filled.

Some of her drugs are available as generics. Others, like Lipitor for cholesterol and Prevacid for heartburn, are available only at full price. Together, they cost $1,943.38 every six months. In Canada, the drugs cost her $910.26 because of the lower price and favorable exchange rate.

Simpson, 66, expects to save $2,000 this year by getting her drugs from Canada. But she worries about others who aren’t healthy enough to travel 240 miles for discounts available to insurance companies and the government.

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

Even if the state loses in the U.S. Supreme Court, it will continue to look at other ways to lower prescription drug prices.

Already, Maine and eight other states are seeking to negotiate bulk drug rates and Maine is seeking revisions to its Medicaid waiver so Healthy Maine prescriptions will pass muster with the courts.

“It has always been our policy not to bet the store on any single strategy,” Concannon said. “I wouldn’t rule out other things.”