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Some pharmacies may be violating federal law by denying medicine to poor
by Tom Scheck, Minnesota Public Radio
December 9, 2003

Kathy McDonough is a staff attorney for the Legal Services Advocacy Project. She says her office is thinking about suing the Minnesota Department of Human Services over the new co-pay law. (MPR Photo/Tom Scheck)

Several advocates for the poor say some Minnesota pharmacies are violating federal law. They say the pharmacists are refusing to provide drugs to low income people who can't afford a new drug co-pay required by the state. Federal law says pharmacies are required to give medicine to people who say they can't afford it.

St. Paul, Minn. — The new state law took effect on October 1 and has caused confusion for patients, pharmacies and the Department of Human Services. It says anyone enrolled in Medical Assistance or General Assistance Medical Care needs to pay a $1 co-pay for generic drugs and a $3 co-pay for brand name medicine. Drugs for children and the mentally ill are exempt from the co-pay.

The law also says no one on the programs will be required to pay more than $20 a month for their medicine. Several people say they can't afford the new co-pays and can't get their medicine.

Maggie Creighton, who lives in a one bedroom apartment right across the street from the Minneapolis/St. Paul Airport, takes two drugs daily -- one for hypertension and the other for asthma. Creighton is on Medical Assistance and lives on $633 a month in Social Security and disability payments. She says she can't afford the new co-pays. And she says officials at her local Fairview Pharmacy refused to give her medicine.

"I don't have it," Creighton said. "By the time I get through paying all my bills, buying food, buying household supplies and all that, the money's gone. I'm at risk of having a stroke, a heart attack, anything like that because I don't have my high blood pressure medicine."

Federal law says pharmacists are required to provide needed drugs to individuals who say they can't afford the co-pay. But state lawmakers didn't want the cost of drugs passed on to pharmacists. So they put a provision in the law that says pharmacists can put anyone who can't afford the co-pay on a "bad debt list."

Pharmacists can later refuse to give someone medicine until the debt is paid. Several people, however, say pharmacists are refusing medicine to those who can't afford the co-pay on their first visit.

Dave Miller, director of retail pharmacy operations at Fairview Pharmacy Services, said the new law is causing some confusion among his customers. In fact, Miller didn't know about the federal requirement until it was brought up during an interview.

"We haven't put any federal exemptions into play," Miller said. "Basically, the state DHS computer system is the one that determines what the co-pay levels are, what the exemptions are, basically what the patient is required to pay so if there are federal exemptions, that should be loaded and sent back to us through our real time pharmacy billing system," he said.

Miller says his pharmacists will continue to work with clients and the Human Services Department to make sure they're meeting state and federal requirements.

Officials with the National Alliance for the Mentally Ill and the Legal Services Advocacy Project say they've written letters to the Minnesota Department of Human Services to complain about the new co-pay law.

Legal Services staff attorney Kathy McDonough says her office is thinking about suing the state if the co-pay isn't eliminated. She says along with complaints that pharmacists are refusing to provide drugs to those who can't pay, she believes pharmacies are refusing to dispense drugs for children and mentally ill, even though both are supposed to be exempt from the co-pay law.

"We're going to explore the legal remedies for those clients because it has had a huge impact on thousands of people," McDonough said.

Officials with the Department of Human Services say they're trying to inform pharmacists about their responsibilities under the new law. Human Services Assistant Commissioner Brian Osberg says it's possible that any pharmacies that don't adhere to the laws could lose their contracts with the state.

Osberg, however, says the budget deficit forced the state to pass the new law. He says the co-pays will save Minnesota $17 million over the next two years by passing the law.

"If we didn't do that, we would have to make further cuts in eligibility or we would have been forced to cut payments to providers," Osberg said. "We thought that it's a fair balance that we had to do in order to address the fiscal problem of last year," he said.

But many low income Minnesotans say they won't be able to pay the co-pay and will go without their drugs. Melvin Gilmore, 55, who lives on $197 a month, says he can't afford the co-pays and will likely stop taking his asthma medicine and drugs for his back pain.

"I don't have a clue," Gilmore said. "I don't know, I'll do without it I guess. It's the only thing I can do."

Several advocates for the lower income say they'll lobby the Legislature to eliminate the co-pay law in the upcoming session.

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