WASHINGTON -- Retail pharmacy leaders are hoping to gain more involvement in President Bush's plan to create a temporary Medicare prescription drug benefit after scoring a legal victory halting the president's original discount-card plan.
U.S. District Court Judge Paul Friedman on Sept. 6 issued a preliminary injunction, ruling that pharmacy leaders had a "substantial likelihood" of winning their lawsuit alleging that the president's drug plan was created unlawfully and would cause damage to retail pharmacy.
Supermarket pharmacy executives said they hoped the judge's decision would lead to more dialogue among legislators, retailers, drug makers and pharmacy benefit managers.
"This temporary reprieve gives us the opportunity to go to the administration and to talk to them and to get all the parties at the table that need to be at the table," said John Fegan, vice president, pharmacy, Stop & Shop, Quincy, Mass.
A spokeswoman for the president said he was "disappointed" in the judge's decision and that the administration was still "considering its options" in the matter.
"Basically the judge found that the president ruled too quickly and too directly, and the president is proud to move quickly and directly [to help seniors get affordable prescriptions]," said White House spokeswoman Mercy Viana in a phone interview with SN.
Bush's plan called for the federal government to endorse prescription discount cards, which would have been issued by pharmacy benefit management companies and other groups that could negotiate drug discounts from manufacturers. Medicare beneficiaries would have paid a flat fee -- $25 according to some reports -- to receive discounts of up to 10% on their prescriptions.
The National Association of Chain Drug Stores and the National Community Pharmacists Association, both based in Alexandria, Va., alleged that the plan was crafted without proper legislative procedure and that it would damage their members' businesses.
"We argued that there was no statutory authority for this program, and [the judge] agreed with us," said Larry Kocot, senior vice president and general counsel, NACDS. "He also agreed that our rights under the administrative procedures act probably were violated in that we didn't have an opportunity to comment on this government program."
The pharmacy groups alleged that the plan was crafted in meetings between administration representatives and pharmaceutical benefit management (PBM) companies, which run the bulk of the nation's mail-order pharmacies. The plan would end up steering Medicare beneficiaries toward mail order, the NACDS and NCPA said.
Kocot said the judge disagreed with the administration's argument that the plan was a matter of government policy, rather than a substantive program requiring congressional approval. He said the Health and Human Services Department had already planned to spend $25 million to promote the use of the discount cards.
"In a sense, what they were going to do was endorse certain entities and then market for those entities," he said.
Ron Simms, president of the Drug Division at Marsh Supermarkets, Indianapolis, and chairman of the Food Marketing Institute Pharmacy Committee, Washington, said he was encouraged by the judge's ruling.
"I don't know how likely the government is to appeal this decision," he said. "I think they are likely to find another route and do something different. Hopefully, they will engage us in discussion on what that something different should be before implementing another idea."
Stop & Shop's Fegan, who also is the incoming chairman of the NACDS Pharmacy Affair Committee, said pharmacists might have to discuss the industry's anti-discount card position with some patients.
"Right now it appeared that the industry was fighting the fact that we wanted to give a discount to seniors, and that's not the truth," he said. "We were really just fighting the manner in which it was proposed. We are going to have to follow up on the heels of that with continued education at the store level, saying we are not against the senior population. We just want a solution where retail pharmacy doesn't bear the brunt of the expense of it."