Health care legal issues in contemporary articles

¶ … Health Care and the Law - Are Preferred Drugs Lists Helpful or Harmful to Low-Income Patients?

Pear, Robert. (April 6, 2004) "U.S. Appeals Court Backs State Efforts at Drug Cost Control." New York Times. Article Retrieved at http://www.nytimes.com/2004/04/06/politics/06DRUG.html?pagewanted=print&position=

One of the most controversial issues today when questioning how the nation's health care system will deal with the spiraling cost of prescription drug care is how to manage the cost of prescription drugs within the Medicare system. The escalating cost of vitally necessary drugs has driven many otherwise law-abiding American consumers to make use of the Internet, purchasing their drugs from dubious sources around the world -- or Canada, which has nationally controlled, subsidized health care, a system that both limits costs and care. However, low-income patients do not even have this recourse, and are at the mercy of their physicians, the legal system, and the pharmaceutical industry.

On Friday of last week, as this article U.S. Appeals Court Backs State Efforts at Drug Cost Control." Illustrates a U.S. Appeals court recently rejected a challenge by the pharmaceutical industry. Pharmaceutical Research and Manufacturers of America, a lobby for makers of brand-name drugs, had brought a suit against the state of Michigan. Michigan's Tommy G. Thompson, the secretary of health and human services of the state in 2002, approved Michigan's strategy for encouraging low-income patients to use lower-cost medicines.

According to the article, "a rapidly growing number of states have adopted 'preferred drug lists'" as a way to control drug costs, redirecting patients to particular drugs because of cost. Although interpreted as a victory for such low-income patients facing escalating drug costs, on first examination this remains rather a dubious proposition -- do the drugs in question really have the same value as their higher-priced competitors. In some cases they may. Also, the pharmaceutical giants' resistances to such laws as Michigan may have its roots in economically motivated reasons, rather than humanist and compassionate reasons.

Still, there is concern about patients being diverted, based purely on their ability to pay, towards less medically viable treatment. The idea should raise a 'red flag' for any individual involved in either the medical or legal system. One judge on the appellate court noted "non-preferred drugs" would still be "available as an option if a doctor certifies that they are medically necessary." (Pear, 2004) However, a judge easily utters this caveat. But it places an additional burden on physicians. Doctors must decide if the patient's medical necessity is justifiable enough to make such an exception, based upon the patient's condition and income.

How does such a list function? In the case of Michigan, the state established a list of preferred drugs. It first identified what it considered the "most effective products" in forty therapeutic categories. Among those drugs, the least expensive were automatically covered under Medicaid and two other health programs operated by the state. Other, more expensive products could be listed only if manufacturers paid supplemental rebates to the state, in effect reducing prices to the level of the preferred drugs. Thus the list was not entirely impregnable but "before dispensing drugs not on the list, pharmacists must obtain approval from the state's pharmacy benefit manager." (Pear, 2004)

According to the legal standards applied to this case by the U.S. Appeals Court, the United States Court of Appeals for the District of Columbia Circuit said, "The available data confirm that in practice, the prior authorization requirement has proved neither burdensome nor overly time-consuming," to either the patients, physicians, pharmacists, or the drug companies. Thus the list was allowed to stand as a statute.

Also significant was the fact that the drug companies bringing the suit "had argued that Michigan was improperly using the Medicaid program to benefit elderly people and pregnant women at the expense of Medicaid recipients." But the court decided the state was in its rights, noting that more resources will be available for existing Medicaid beneficiaries." (Pear, 2004)