State of Withdrawal: Maine's Effort to End Methadone Coverage Could Face Legal Hurdles

Feb 23, 2015

Editor's note: This is the final part of our 5-part "State of Withdrawal" series. Click here for the other stories in the series.

AUGUSTA, Maine - Methadone is an opiate replacement medication long considered to be "the gold standard" for treatment of addiction.

But when it comes to paying for this time-tested treatment, insurance companies often balk. And so do at least 17 states that don't cover it under their Medicaid programs.

Now the LePage administration wants to drop Medicaid coverage for about 3,000 methadone patients in Maine in favor of a different treatment instead. And in the final installment of our series, "State of Withdrawal," Susan Sharon reports that this policy could present some legal hurdles.

It turns out that the LePage administration is not the first in Maine to try to eliminate Medicaid coverage for methadone patients. Back in 1996 under Gov. Angus King, the Department of Health and Human Services tried to do the same thing when methadone clinics were first opening in southern Maine.

"And so, at the time, I brought a lawsuit on behalf of MaineCare recipients who were receiving methadone treatment services and transportation to that service," says Jack Comart, the litigation director for the low-income advocacy group known as Maine Equal Justice Partners.

The case was known as Kevin Banks v. Kevin Concannon, Commissioner of the Maine Department of Human Services. It was filed in federal court. "And the court made a decision that it was illegal, that it violated the federal Medicaid law, for the state to no longer cover methadone treatment or transportation to methadone treatment," Comart says.

The Court issued a permanent injunction and the state chose not to appeal. "The law has not changed since that time," Comart says. "Nothing has really changed so I'm not really sure on what basis the state is now proposing this. They don't really get to do it over. They had their chance when they could have appealed this and they chose not to."

There are a couple of differences since the lawsuit was filed. One is that there are more than twice as many patients in methadone treatment as there were in 1996. And the other, says Dr. Kevin Flanigan of the state office of MaineCare, is that there are two new effective opiate addiction treatments available to patients: Suboxone and Vivitrol - even though there is a shortage of willing providers.

"So there are two other treatment options in addition to counseling, besides just covering methadone," Flanigan says. "Just covering one option, I don't think is in the best interest of any state. There is no 'one size fits all.' But we don't just cover one." And, says Flanigan, since 17 other states choose not to cover methadone with Medicaid, it's not as though this is a requirement.

What's different, though, is that Maine is believed to be the first state to consider dropping Medicaid coverage for methadone, something the other states didn't cover in the first place. And the other issue, says Mark Perrino of the American Association for Treatment of Opioid Dependence, is that you can't simply substitute methadone for Suboxone or Vivitrol. They're not the same thing and not interchangeable between patients.

"In the real universe, based on the needs of these patients, based on opioid use and treatment histories, based on those cold facts, the state cannot achieve its objective without putting patients directly in harm's way," Perrino says. "No, that cannot be done."

Once a state offers optional prescription drug service, it must follow the federal rules. A state can impose restrictions around prescription drug coverage under certain conditions, but very few. And back in 1996 U.S. Magistrate Judge David Cohen found that none of them applied.

"Well, I've got real concerns about it," says Rep. Drew Gattine. Gattine is a Democrat from Westbrook who co-chairs the Legislature's Health and Human Services Committee. Back in 1996 he was an assistant attorney general who unsuccessfully defended DHHS and the King administration in the lawsuit brought by methadone patients and their attorney, Jack Comart.

"It certainly seems that completely cutting off or banning that service or that drug treatment has got some real challenges under the federal law," Gattine says.

Those challenges could include getting approval from the Centers for Medicare and Medicaid Services to drop methadone coverage in favor of Suboxone and Vivitrol treatment. Ray Hurd, the regional administrator for CMS, says the LePage administration would have to do a state plan amendment for any changes to the Medicaid program. If the plan did not meet federal guidelines, Hurd says the policy could not move forward.

"And he would have to continue to cover the methadone, if that were the case," Hurd says.

With or without CMS approval, Jack Comart of Maine Equal Justice, is convinced the state's plan would fly in the face of the 1996 court order. And Comart says he's prepared to file a contempt charge.