Maine suits
may affect Hawaii

That state’s programs for prescription drugs
is similar to the isles'

By Bruce Dunford
Associated Press

Legal battles being waged in federal courts 5,000 miles away likely will determine the fate of two Hawaii state programs to get cheaper prescription drugs for residents not covered by any drug plan.

Hawaii's programs passed in the 2002 Legislature would make more people eligible for the lower Medicaid drug prices and use bulk buying by the state to get discounted prices.

The programs mirror Maine's two prescription drug plans which are the focus of legal challenges from the Pharmaceutical Research and Manufacturers of America, representing the drug makers.

A federal appeals court in Washington, D.C., last week struck down the Healthy Maine Prescriptions program that provides drug discounts through the federal Medicaid program.

Meanwhile, the Maine Rx program is on hold while it is appealed to the U.S. Supreme Court. It lets the state negotiate directly with drug makers to lower drug prices. If they fail, the state can impose price controls.

Lawyers for Maine, who are backed by the Bush administration, and for the drug makers will argue that case before the Supreme Court in late January.

"No doubt, it's a setback," said state Rep. Roy Takumi, D-Pearl City-Pacific Palisades, an architect of the Rx Hawaii and Healthy Hawaii programs. "I'm disappointed, but I'm not discouraged. I think we can still move forward."

The Healthy Hawaii program allows residents who earn 300 percent or less than the federal poverty level, or about $42,200 for a family of two, to qualify for Medicaid prices.

The state's Department of Human Services has hired a consultant to draft the request for a Medicaid waiver and anticipates qualified residents could begin signing up by next fall, Takumi said.

The Hawaii Rx program isn't scheduled to begin until July 1, 2004, allowing time for any changes that might have to be made by lawmakers based on a ruling by the U.S. Supreme Court.

In the Maine case, the appeals court ruled that the program, like a similar program struck down in Vermont, violated Medicaid law and was an inappropriate expansion of the Medicaid program.

Maine attorneys said that the concerns raised by the court can be resolved and that the federal government and the Legislature will take steps to assure that the Healthy Maine program passes legal muster.

Takumi said Hawaii's law may already meet the court's objection by requiring a state-paid $1 per prescription cost-sharing that is required in the Medicaid law.

The appeals court told Maine that its cost-sharing of 2 percent on each prescription was made by rule and not by state law, so could not be considered mandatory, Takumi said.

"That's why we deliberately in the Health Hawaii program have in there a state match," he said.

Takumi noted that U.S. Health and Human Services Secretary Tommy Thompson was aware of Maine's expansion of the Medicaid program with the 2 percent cost sharing and did not object.

While the legal war that could affect Hawaii's two programs is being waged far, far away, the political war may be renewed at home with a new Republican administration in charge of the state agencies charged with implementing both programs.

During her campaign, Republican Gov. Linda Lingle criticized the prescription drug laws as consumer measures with no immediate impact for consumers.

Pharmaceutical Research and Manufacturers of America
State Department of Human Services
Centers for Medicare and Medicaid Services

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