November 2005-February 2006Photo and Article by Ramona du Houx

The governor was there.

There, when seniors and disabled citizens all across the state were in need of continued prescription drug coverage.

The governor was adamant and determined.

Determined — that all seniors and disabled citizens would continue to receive their lifesaving medications, no matter the cost to the state.

“I cannot allow seniors to not get the medicines they need. A person who does not get a life-sustaining drug could end up hospitalized or even die. I can’t let that happen,” said the governor. “I won’t let that happen.”

The ills that have plagued America since the federal government announced its new program, Medicare Part D — that was meant to provide cheaper prescription drugs for the elderly — started back in November ’05.


Governor Baldacci assuages Eleanor Sawyer worries about Medicare D. Eleanor lives on Social Security benefits and she shared her story at a press conference

The governor started planning for the impact that Medicare D would have on Maine citizens, back in the spring of ’05.

Baldacci was the first governor to take action to protect his citizens from the ill effects of the faulty Medicare D program. Since January, over 20 states have followed his example.

Since November 15, ’05, seniors with Medicare have been forced to choose a prescription drug plan offered by a private company in order to continue to get prescription drug benefits. Sixteen companies offered the federally mandated Medicare D coverage in Maine, with over 40 different plans to choose from, which has made the process confusing to many. More than 85,000 people that were on either the MaineCare or the Maine Drugs for the Elderly program have been faced with a reduction in coverage and higher costs because of Medicare D. To help these seniors the governor announced an outreach program that would pay for any extra costs they may incur. The governor’s program also helps them choose the best plan for their needs.

The fear was that too many seniors would not apply for Medicare D because the program was too confusing. By federal law, if seniors are not on a plan authorized by the federal government, then they would lose all their benefits and be forced to pay the full price of the prescriptions.

Eleanor Sawyer who lives on Social Security benefits shared her story at the press conference, “I’m doing pretty well for 94, but as you might expect, have some health problems. I’m a breast cancer survivor; I’ve had three stints in my heart, high cholesterol, and high blood pressure.” She needs five medications to keep healthy. “My doctor says if I keep taking my medications, I could keep going strong for some time to come.” She went on to express how confused she was with Medicare D and worried that her medications would cost too much for her to afford on a fixed income, or not even be available under the plan she has to choose. “This isn’t just my problem. I know that my friends are scared about what will happen to them, too.”

After the governor explained his outreach plan at the press conference, Sawyer was clearly relieved, “I’m grateful that the state will see that we won’t lose our coverage.”

“The Maine plan is a frontline defense. This is about making sure we protect Maine citizens, so that they can remain in their homes and avoid costly emergency-room visits and hospitalizations,” stated Governor Baldacci. “I have created a team to provide a safety net to help MaineCare and Drugs for the Elderly members navigate this new system, pick the plan that is best to meet their needs, and help them with the new out-of-pocket expenses they face. No one will fall through the cracks.”

A special office with phone hotlines was set up and inundated with thousands of calls every day.

“We are working hard to ensure that vulnerable Maine citizens continue to have access to affordable prescription drugs,” said Jude Walsh, special assistant to the Governor’s Office of Health Policy and Finance, who heads up the program.

The federal government never tried to get lower-priced prescription drugs for the program, and only a limited variety of drugs are available. This could disable many that need certain medications, by making them pay a higher price. Fortunately, the governor’s safety net eliminates this threat to Maine citizens. In addition, more medications will be available through the Drugs for the Elderly program to counter the limited drug choice under Medicare D.

Because of the governor’s actions already helping citizens work through the maze of confusion posed by Medicare D, Maine was prepared for the dramatic events that began on January 1, 2006 — the day Medicare D took over providing prescription drugs for the elderly and disabled.

Thousands of seniors were not on the federal computerized lists by January 1st, making them ineligible for discount prescription drugs. Some were told they had a plan, but it didn’t cover the medications they needed. Others got a plan and their drugs, but were overcharged by up to $100, having been told to expect a $1 co-pay.

Half of Maine’s 45,000 “dual- eligibles” — people who qualify for both Medicaid and Medicare — and 12,000 beneficiaries of the state’s Drugs for the Elderly and Disabled program were not recorded in the federal computers, as of the New Year’s Day deadline.

That’s over 22,000 Maine seniors and disabled citizens left high and dry by the Bush administration’s mistake.

Governor John Baldacci came to their rescue and immediately ordered the state’s Medicare and Drugs for the Elderly programs to continue to serve these people.

These seniors would have faced going to a pharmacy and having to pay the full amount for their prescription drugs. For many this could have been a choice between food and their medications. The governor was determined that Maine citizens would not suffer from the defective Medicare D program.

Until the federal computer lists are updated, pharmacies have no way of knowing which one of several plans available under Medicare D covers a particular individual and therefore what drugs are covered for that individual.

The governor acknowledged he may be stretching his authority to order drug coverage at state expense, but he believes he has the authority to order emergency coverage. Moreover he believes it is the right thing to do.

“Within hours of this new program taking effect, my phone rang, and on the other end was a woman who couldn’t get her medication for kidney dialysis, because the Feds had signed her up for the wrong plan. With our help she got what she needed. But she and the thousands of other Mainers who were in similar situations should never have to face that crisis to begin with.

“We are going to make sure the federal government meets its obligations to all Maine people,” said Governor Baldacci during his Sate of the State address.

The state help line averaged more than 16,000 calls a day in January.

“Before the state intervened, people were only buying two or three pills at a time because they couldn’t afford their normal monthly prescriptions,” said Bill Moyes, a pharmacist in Gorham. “Now a lot of them are back to getting a month’s supply.”

Maine officials said the state will continue to be billed by pharmacies until problems with the benefit subside. Maine was the first state to have taken this step, according to the New York based advocacy group Medicare Rights Center.

The cost to the state has been close to $6 million.

Working as a team to make Washington accountable:

On January 17, 2006, Governor Baldacci and thirteen other governors wrote President Bush a joint letter demanding accountability and reimbursement for the Medicare D program’s expense to states.

On January 23, Governor Baldacci and Congressman Tom Allen held a press conference informing the public that Allen is cosponsoring legislation that could fix Medicare D’s problems.

“My bill will fully reimburse Maine and other states for all the costs they have born by paying the prescription drug bills for beneficiaries the federal government let slide through the cracks in Part D,” Representative Allen said. “But my legislation does not just throw good money at an ill-conceived program that has proven to be a mess. My bill goes to the root of the problem. It eliminates the new law’s gaps in prescription drug coverage that have plagued millions of low-income seniors and individuals with disabilities across Maine, and America.”

Two days later the federal government announced that it would reimburse states but imposed an unreasonable deadline for claims.

“We are requesting an extension in the repayment deadline until March 31st, 2006, since so many of our enrollees continue to have high co-pays and are being charged deductibles inappropriately,” said the governor.

Over 10,000 Mainers who are eligible for Medicare D benefits still have not been recognized correctly by federal officials.

Maine Sues the Federal Government :

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” so says the Tenth Amendment to the US Constitution. It is the basis that Maine is using in its lawsuit to challenge the constitutionality of federal provisions requiring states to pay back what they should be saving by no longer providing drug coverage under their Medicaid programs.

This “clawback provision” has enraged states that already are taking care of prescription drugs for the elderly and disabled and have been harnessed with the Medicare Part D program that is costing them more.

On March 3, Maine, along with three other states, announced that they are suing the federal government over the clawback provision.

“We should not have to pay a clawback,” said Baldacci. “It was a process that was supposed to save money but ended up costing states money.”

“Prior to this federal mismanagement in the implementation of the Medicare Part D program, Maine led the nation with a model program that was far less expensive than the Medicare Part D program that’s now been implemented,” said House Speaker Richardson who stated that he was filing a joint resolution with Senate President Beth Edmonds against the clawback and demanding the federal government reimburse Maine for the costs of Medicare D. “Maine is being forced to pay more for less coverage to its seniors.”

“We are being lumped in with other states who have not done what they needed to do in providing for their people, and so we are being penalized for, in fact, providing better care for our folks,” Edmonds said.

Maine hopes to prove that the payments violate the Tenth Amendment by forcing them to relinquish control over how they budget taxpayer dollars to pay for a federal program.

“The clawback ignores the system of ‘dual sovereignty’ that is ingrained in our federal Constitution,” said Maine Attorney General Steven Rowe. “Congress treats states as agents of the federal government, rather than as separate sovereigns in their own right. The clawback requires state legislatures to collect, allocate and remit state funds to the federal government to operate a purely federal program. This violates the intergovernmental tax-immunity doctrine grounded in the Tenth Amendment of our federal Constitution.”

The state was expected to pay $3 million more to the federal government this fiscal year than it would have paid for the dual-eligibles under MaineCare, the state’s Medicaid program. The additional cost for the next fiscal year is expected to be more than $17 million.

Congressman Tom Allen said the action was necessary to protect Maine taxpayers. “Medicare is a federal health benefit. The clawback provision requires states to assume part of the cost of providing this federal benefit.”

Rep. Hannah Pingree who has a bill concerning Medicare D and is the chairman of the Health and Human Services Committee said, “Maine has been working really hard to take care of our people, despite all of the problems with Medicare Part D. Should we have to pay this clawback, it will really diminish our ability to care for our seniors.”

Rowe believes the case raises issues that are of great constitutional magnitude. No adequate alternative forum for resolving disputes like this is available — these two criteria historically have always been present for the Supreme Court to review the case.

For many it is apparent that Medicare D is the Bush administration’s attempt to begin to privatize Medicare.

Medicare Part D will give drug companies up to $2 billion in extra profits this year, because they are no longer required to pay rebates on drugs bought by the government for the elderly poor. Medicare D will also increase profits of insurance providers who are handing the different plans seniors must choose from.