By Liz Austin,Associated Press Writer

AUSTIN – Texas, Maine and three other states sued the U.S. Department of Health and Human Services on Friday, alleging they are being forced to help fund the new Medicare prescription drug program in violation of the Constitution.

In the lawsuit filed in the U.S. Supreme Court, Texas Attorney General Greg Abbott argues states shouldn’t have to relinquish control over how they budget taxpayer dollars to pay for an entirely federal program.

“The federal government has placed what amounts to a direct tax upon Texas and other states in violation of the U.S. Constitution,” Abbott said in a statement.

Gary Karr, a spokesman for the federal Centers for Medicare and Medicaid Services, an arm of the Department of Health and Human Services, said states are going to save billions of dollars under the new program.

“That’s why very few states decided to join this lawsuit despite requests for them to do so,” Karr said.

The attorneys general of Kentucky, Maine, Missouri and New Jersey joined Abbott in the lawsuit, while 10 other states filed a friend-of-the-court brief supporting their argument.

Since Jan. 1, states have been required to send the federal government monthly payments to help cover the cost of the Medicare Part D program, which is designed to provide more seniors with affordable prescription drugs.

Medicare, the federal health insurance program for the elderly and disabled, traditionally did not pay for beneficiaries’ prescription drugs. A 2003 law added a prescription benefit to be operated by companies with Medicare contracts.

The program went into effect Jan. 1 for those who signed up early and for millions who previously were covered by state Medicaid programs.

Under the so-called “clawback provision,” states are required to pay the federal government a portion of the money they are expected to save because they no longer will have to pay for prescription drugs for people enrolled in both Medicare and Medicaid.

States also will save money because the program is slowing the growth of prescription drug costs, Karr said.

But New Jersey Attorney General Zulima V. Farber said the provision undermines her state’s ability to control its own destiny. She said she can think of no other federal law requiring states to help fund a federal program.

“We believe, constitutionally speaking, the clawback provision takes us into uncharted waters as a nation,” she said.

The provision could cost Texas $100 million by 2009 and leave it and other states “wallowing in red ink for several years,” Abbott said.

The startup of Medicare Part D has not gone smoothly. Pharmacies and patients have complained about jammed phone lines, inaccurate computer lists of who was eligible for the program, and patients being charged hundreds of dollars for prescriptions instead of the set co-payments of $1 to $5.

Texas is among about two dozen states that have agreed to temporarily pick up the cost of prescription drugs for low-income seniors and others turned away at pharmacies because of problems with the system. Federal officials have said the states will be fully reimbursed.

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