State officials looked for other options Monday after the Supreme Court declined to block a part of the Medicare drug program that they contend sticks them with unfair payments.
Five states had sought an injunction that would have let them contest state payments to the federal government for some of the drug benefit's expenses. They contended the payments are an unconstitutional federal tax.
"The facts haven't changed, and our view of the constitutionality of the law hasn't changed," said Tom Bradley, an assistant attorney general for Maine. "The same reasons exist to go forward as existed before. I'll find out when we get on the phone later this week whether the others feel the same way."
Kentucky, Maine, Missouri, New Jersey and Texas had asked the Supreme Court to issue an injunction and to let them appeal the payments. The justices rejected both requests without explanation.
Ten other states also filed briefs with the court claiming the program threatens state independence: Alaska, Arizona, Connecticut, Kansas, Mississippi, New Hampshire, Ohio, Oklahoma, South Carolina and Vermont.
State lawsuits against the federal government can be filed directly with the Supreme Court, or begin in lower court.
Mark McClellan, administrator for the Centers for Medicare and Medicaid Services, said he was pleased with the court's decision.
"We continue to work to ensure that the millions of people with Medicare and Medicaid will continue to get the drugs they need, at a much lower cost than had been expected, while saving money for states," McClellan said.
The drug benefit went into effect Jan. 1. About 43 million people are eligible for the benefit; about 38.2 million have drug coverage either through Medicare, other government programs or an employer.
Under the Medicare program, states help finance the drug coverage through a monthly payment. The amount is based on a formula that is supposed to track most of what states would have paid if they had continued to provide drug coverage for residents enrolled in both Medicare and Medicaid.
Drug coverage for those "dual-eligibles" now occurs through the new Medicare benefit, which is a federal program.
Texas Solicitor General Ted Cruz had told justices that states are expected to have to pay billions of dollars over the next two years. He said that so far, however, states have not been told exactly how much they must pay or when they must pay. He said that makes it difficult for states to plan for spending on schools or natural disasters.
A group of law professors and health care experts told the court that although the new drug benefit is promoted as generous, it "threatens to unravel both Medicare and Medicaid."
Beneficiaries enroll in a private plan that subsidizes the cost of their prescription drugs. While the costs and the benefits differ, depending upon the beneficiary, the Bush administration estimates the average participant will save about $1,100 a year.
"We realized it was a long shot for the court to take the case," said Kentucky Assistant Attorney General David Johnstone.
But the alternative, he said, was for 15 different states to file lawsuits in 15 different courts around the country.
"In the next couple of days, we'll meet in-house and discuss with the other states involved where we go from here," Johnstone said.
The case is Texas v. Leavitt, No. 135.
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Associated Press Writer Gina Holland contributed to this report.
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