Jerry Kopel

June 1998

JERRY KOPEL'S REPORT of June 1998 is the last. We began in 1967. Rather than deal with some passing present issue, I thought you might enjoy reading about what was for me, the most exciting and fruitful of many legislative fights. Starting with the next paragraph, this is word for word from my April 1976 legislative report.

At the end of the 1975 legislative session, my House bill permitting pharmacies to provide prescription drugs to consumers at less cost died in Senate Appropriations Committee. On that fatal day, Sen. Shoemaker gave me three minutes to explain the bill. Standing at the doorway was Jon Holm, lobbyist for the opposition, the pharmaceutical manufacturers. Sen. Les Fowler made the motion to kill the bill. The vote was nine to six, strictly on party lines and the measure was dead.

Before the 1976 session began, I responded to the Governor's request for measures to place on the "call" by suggesting, "If you were to limit my requests to one measure, let it be the drug substitution bill."

During the fall and winter months, I prepared for the 1976 battle by becoming acquainted with the pharmacy school students and faculty at Boulder and with the Colorado Pharmacy Association leadership. In 1975, the association of pharmacists had worked against my bill.

Rep. Frank Traylor and I combined to write an analysis of why we needed a change in the laws that denied drug prescription substitution. The article appeared on page one of the Rocky Mountain News Trend section in December.

Our 1976 measure, H.B. 1087, was to be based upon the newly-enacted and well-written California law on drug substitution.

The early days of the session were spent signing up 36 House and 18 Senate sponsors. The most difficult task at that point was to persuade Sen. Hank Brown to carry the bill in the Senate. After many days, we reached a diplomatic conclusion. He would add his name as a Senate co-sponsor, but not as chief sponsor. Since co-sponsors are listed alphabetically, his name would appear first if I didn't ask Allshouse, Anderson, or Bishop to sign the bill. That is what happened. Once on the bill as the first Senate sponsor, Sen. Brown became an enthusiastic Senate sponsor.

The bill encountered little difficulty in the House, which stood by its 1975 approval. Meanwhile, the pharmacists had hired a lobbyist, Fred Sievers. Their executive director, Merle Meyers, supported a substitution law. And the pharmacy association finally went on record in favor of substitution, so long as "no additional agency was established to determine what could or could not be substituted and which would essentially duplicate federal programs." This position was hammered out at a late-night meeting of pharmacists I attended. It was crucial the chief sponsor of the bill be there to answer hard questions from many present who opposed the measure.

HB 1087 passed the House by a vote of 44 to 15. Now the real battle was about to begin. I had heard reports that the Pharmaceutical Manufacturing Association was prepared to let the Colorado position determine what would happen in the rest of the nearby states, and to spend what was needed to kill the bill in Colorado.

I have to believe that large sums were being spent. Jon Holm was on board again as chief lobbyist. To aid him, the manufacturers assigned three "detail" men. Almost every day, standing at the brass rail in the corridor leading to the Senate chambers, would be Mr. Holm and his three pharmacy experts from Eli Lilly, Sandos, and Merck, cornering senators as they passed.

The bill was assigned on Feb. 17th to Health and Welfare, chaired by Sen. Strickland, who had voted against the measure in the same committee in 1975. And there, in 1976, the bill sat for one month and twelve days. In March, Sen. Brown completed a re-write of the House bill. His version eliminated the board to determine which drugs could not be substituted (a response to the pharmacists' position). As an alternative, Sen. Brown tightened the definitions of what could be substituted. Otherwise, the bill was intact.

Sen. Strickland scheduled the measure as the next-to-the-last item to be heard by his committee on the morning of March 29, the final day for the Senate committee to hear House bills. The committee began work at 9 a.m. Three hours later, they were still considering a measure scheduled just before HB 1087, which measure (Emergency Medical Services) had drawn over a hundred people into committee chambers.

Strickland was in no hurry to finish the bill. He told the audience several times that anyone who wished to speak should feel free to do so. Strickland also indicated that anything not voted on by 1 p.m. was dead. No one in the audience offered to speak. The Emergency Bill was adopted unanimously. Our bill was on the table.

"We have fifteen minutes left" said Sen. Strickland, after Sen. Brown took about five minutes to explain the bill and offer his amendments, "so the people for and people against have six minutes each."

That was fine with us. Strickland's committee had seven members; three Democrats and four Republicans. One Democrat, Sen. Massari, was ill and no longer in attendance. This made the vote three to three, with Gallagher, Groff, plus Hughes (Republican) for the bill, and Strickland, McCormick, and Schieffelin against the bill. On a tie vote, a bill loses. However, Sen. Schieffelin had accepted a noon invitation to speak in Colorado Springs at an anti-ERA meeting, and he had left the capitol at 10:30 a.m.

No one's mind was changed in the 12 minutes of debate, although some of the pharmacy manufacturing people who had flown in from other parts of the country to testify against the bill must have wondered about how our system works. The bill was reported favorably, three to two. (It would not now be law, if Sen. Strickland had put the bill on the table for hearing and vote at 9 a.m. instead of 12:45 p.m.).

But the opponents were not yet finished. Sen. Strickland later asked Pharmacy Board Executive Secretary Mike Simmons, a foe of the bill, how much the bill would cost, and Simmons wrote an almost instantaneous letter that the bill would require a $22,000 appropriation for an additional Pharmacy Board inspector.

The reason this letter was important is that no bill costing state funds would be debated on the Senate floor without first going to the Appropriations Committee (where the 1975 substitution bill had just coincidentally been killed).

We learned about the Simmons letter one day before it was to be used. I asked for, and received, a fiscal note from the Governor's Budget Office, which showed accurately, "no fiscal impact". In fact, we discovered that instead of needing another pharmacy inspector, legislative budget office figures showed that state inspections are presently double what the pharmacy statute (as opposed to regulations) actually calls for.

On April 1, the very last day possible under Senate rules, the Health Committee report on HB 1087 was read in the Senate. Strickland went to the microphone and read Simmons' letter. Sen. Anderson, president of the Senate, was about to send the measure to Appropriations. I had a Senate aide hand Sen. Brown the new report showing the bill had no fiscal impact. He read it to the senators, and HB 1087 was saved.

The rest was anti-climatic, although we didn't know it at the time. The Medical Association, which had earlier passed a resolution against the bill, had their lobbyists join in the fray on the side of their manufacturing friends. A number of pharmacy manufacturer-Medical Association amendments were offered and defeated. The Democrats were solidly united behind the bill. On final vote, only Sen. McCormick voted against the measure.

Getting a bill like this through the Senate is very unusual. Credit for successful background effort has to go to pharmacist lobbyist Fred Sievers, Executive Director Merle Meyers, and to the many pharmacists who called their senators to indicate support for the measure.

Sen. Hank Brown deserves a special accolade. He spent time learning about the subject; his pruning of the House version was done in a sound manner; and he has great credibility with his fellow senators. It made a difference. Last, but not least, we have to thank the people who organized the noon anti-ERA meeting on Monday, March 29, in Colorado Springs.

How will the bill work? Since it takes effect immediately upon the Governor's signature, it is important for you to know something of its contents. First, what it will not do:

HB 1087 does not deal with generic prescriptions. If the doctor prescribes generically, which happens probably 10 to 15 percent of the time, the result is the same as it was prior to HB 1087. The pharmacist picks the drug product.

If a doctor gives advance written or oral permission to substitute (usually by a contract or writing), HB 1087 does not apply. This is the method presently used by hospital pharmacies to substitute drugs and is also used in some counties for Medicaid prescriptions.

HB 1087 does not permit substitution for those prescription drugs protected by a company's 17-year patent grant from the federal government. State law cannot override Federal patents. What HB 1087 does do is provide alternatives for prescriptions that name a brand drug whose contents are duplicated by other generic or brand-name drugs.

The doctor has the original discretion to avoid substitution. If he doesn't want anything but the "brand name" to be dispensed, he will write "dispense as written" or initial a box saying that, on the prescription.

If he doesn't do that, the pharmacist has the discretion to substitute for the brand name prescribed. It has to be of a drug of the same active chemical ingredients, strength, quantity and dosage form. And it has to be of a drug that will cost the customer less: "less" being the difference between the cost to the pharmacist of the drug prescribed and the drug substituted. Many pharmacists sell a drug product at wholesale plus a fixed professional fee, so the end result is that the price paid is the price that is normally paid for the less expensive drug product.

No substitution can be made unless the purchaser is told of it, orally and in writing. Since the buying of a prescription drug is a contract between the customer and the pharmacist, the customer has the right to refuse a substitution and request the original prescription at the original price.

HB 1087 requires the pharmacist to have knowledge of the recently-published Food and Drug Adm. list of reputable manufacturers of drug products of the same nature. Beginning Sept. l, the actual manufacturer of a drug will have to be listed on the products sold to the pharmacist. Then the pharmacist will be able to see that one company has made the same product for five big "brand-name" manufacturers and that the only difference in the products is the price to him and his customers.

This law can't help but save you money. Six of the 10 leading prescription drugs have alternatives available at less cost to you.

(It's been a pleasure writing for you, here and in continuing my political column in the Colorado Statesman.)

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