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Court Win For Innovative Drug Cost Control Program In Maine

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Medicare is a federal program providing medical care to millions of seniors and disabled individuals. Although beneficiaries may pay some portion of their own care costs those contributions are in most cases modest. By any reckoning, however, there are two important medical needs not covered by the Medicare program—long term nursing care costs and prescription drugs. While about half of the national cost of long term care ends up being paid by other government programs (primarily Medicaid, a federal/state program for the poor), prescription drugs are paid for by individual Medicare recipients in most cases.

With medication taking a more central role in medical care, and in the face of rapidly rising drug costs, advocates and governments seek to make drugs affordable to individuals without forcing them to qualify for Medicaid coverage. One innovative approach was adopted by the State of Maine last year, and the State was promptly sued by representatives of the drug industry.

Maine’s approach was to establish a state-sponsored group purchasing plan. The “Maine Rx Program” would create a state fund from rebates collected from participating drug companies, allowing Maine residents to effectively wield the same group purchasing power enjoyed by Medicaid programs, HMOs and other large, organized groups.

Any drug company which declined to participate in the Maine Rx Program would be publicly identified, and could presumably expect to see its sales shrink. More powerfully, uncooperative drug companies would have their products removed from the list of drugs which are automatically approved for use in Maine’s Medicaid program.

The Pharmaceutical Research and Manufacturers of America, an industry group, sued to enjoin Maine from implementing its new program. Federal Judge Brock Hornby granted the injunction, and the State appealed to the First Circuit Court of Appeals in Boston.

The drug industry argued that the federal Medicaid program preempts Maine or any other state from adopting its own drug plan that includes Medicaid penalties for noncompliance. Not so, ruled the appellate judges: “We perceive no conflict between the Maine Act and Medicaid’s structure and purpose.”

The drug industry also argued that the Maine Rx Program is an impermissible attempt by Maine to control companies located outside its own borders. Once again the Court of Appeals disagreed, saying that the program does not “regulate” the drug companies’ interstate commerce, and that the effect on the drug industry is not excessive in relation to the benefits sought to be obtained. Pharmaceutical Research and Manufacturers of America v. Concannon, May 16, 2001

The Court of Appeals permitted Maine’s experimental program for controlling drug prices to go forward. It remains to be seen whether the Maine Rx Program will actually be effective at controlling prices.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.