Medicare and Part D

The Latest News on Medicare Part D

July 2, 2007

National Update:

Low Income Subsidy (LIS) for Dual Eligibles with a Share of Cost or Spend Down:
The Centers for Medicaid and Medicare Services (CMS) has announced that if individuals who are served by both Medicaid Medically Needy programs and Medicare meet spend down or share of cost in any one month from July 2007 through December 2007, they will be deemed automatically eligible for the full Medicare LIS for plan year 2008.

Appropriate LIS application:
One of the most common problems that people have getting their drugs under Medicare Part D is that LIS is not being applied correctly even when they should be automatically eligible. When they arrive at the pharmacy to pick up their drugs, they are asked for hundreds of dollars and have to leave the pharmacy without their drugs. Under those circumstances, the plans are supposed to follow CMS’ best available data policy, which says that if there is reasonable evidence that the beneficiary should qualify for the LIS and is in need of medication, the plan should apply the LIS until the mistake can be corrected. Best available data to prove dual eligibility can include:

– A copy of a Medicaid card that includes the beneficiary’s name and current eligibility date
– Telephone verification with the state Medicaid Agency including the date and the name and telephone number of the Medicaid staff person contacted
– A copy of a state document that confirms active Medicaid eligibility
– A screen print from the state’s Medicaid systems showing Medicaid status

Unfortunately, many pharmacies do not follow the policy even when urged to by an advocate, and it has proven difficult to get people their drugs in a timely fashion. If this occurs, the most effective action is to be in touch with an advocate to help get access to drugs and file a complaint against the plan and pharmacy. Currently the only effective way to ensure that plans and pharmacies follow the rule is to report those that don’t.

Senior Health Insurance Programs have advocates to help individuals with Medicare Part D problems. Contact numbers for each state can be found at www.medicare.gov.

1-800-Medicare (1-800-633-4227) should also resolve complaints but there have been reports of inadequately trained staff and lack of follow through. If you experience this problem, please also contact Anne Donnelly at 415.558.8669x208.

Wellpoint ( the Medicare back up system for dual eligibles):
Medicare has a system in place called Wellpoint to help dual eligibles who are not currently enrolled in a plan and can’t get needed medications. The Wellpoint system has major flaws. It can’t be used to help those dual eligibles who can’t get their drugs because their LIS hasn’t been applied correctly. Project Inform and its partners are urging CMS to create a viable back up plan for these individuals.

Another problem is that the Wellpoint system will not allow pharmacies to enroll beneficiaries if there is another plan on the record even if the other plan can’t be billed. In addition, Wellpoint is an “at will” option for pharmacies and at least one large California chain reports that they won’t bill the Wellpoint option. Advocates are working with CMS to ensure that this option is enhanced and secured for the low income Medicare beneficiaries who depend on it.

Filing a Medicare complaint:
When beneficiaries encounter problems in Medicare Part D, it is important to file a complaint to resolve the problem but also to demonstrate the real barriers and challenges that people face with the benefit. However, filing a complaint is often not easy even with an advocate’s help. It is important to file the complaint through the 1-800-Medicare number so that they can be effectively tracked and reported, but most of the complaints filed there go to the plans to be resolved. If you don’t hear back from your plan, the Medicare representative has no way to trace complaints that have gone to the plan.

When filing a complaint with 1-800-Medicare always tell them if you are running short of medication. If you are running out of medication in less than 2 days it is considered an emergency need and should be resolved within 2 days. If you will run out of drugs within 14 days it is considered urgent and should be resolved within that time frame. However, the beneficiary must inform the Medicare representative that they have an emergency or urgent need. The representative is unlikely to ask that question.

Please report problems you experience with filing a complaint or resolving a complaint to Anne Donnelly.

Prior authorization information:
In a memo dated June 14th, 2007, CMS acknowledges receiving “occasional” complaints that beneficiaries and/or physicians are having difficulty obtaining prior authorization requirements for specific drug from plans.

CMS points to guidance that—while vague on the timeline—requires plans to provide through a toll-free number information on prior authorization requirements for specific drugs. The information should be given to a beneficiary or authorized representative in a timely manner to make decisions about plan enrollment. It should also be given to a physician or provider in a timely manner that will avoid problems at the pharmacy and treatment interruption.

If the plan representative is unable to provide the information, the call should be elevated to a pharmacy technical help call center.

Questions on the policy should be directed to Greg Dill or 312-353-1754.

Comments on Annual Notice of Change (ANOC) and Evidence of Coverage (EOC):
CMS issued model ANOC and EOC for public comment. To view the comments prepared by advocates and signed on to by Project Inform, go to (LINK TO Sign on Letters)

Congressional Scrutiny of Medicare Part D:
Congress has recently held a number of hearings on Medicare Part D. They have focused on the difficulties encountered by low income Medicare beneficiaries, including auto-enrollment time lags, failure to reimburse individuals for out of pocket costs they should not have incurred, the complexity of the benefit, the beneficiary’s difficulty understanding the program, choosing plans, benefiting from the LIS, and utilizing the exceptions and appeals process. Subcommittees also heard testimony on marketing abuses particularly by private fee-for-service Medicare plans and about the importance of protecting by law certain classes of drugs, including anti-retrovirals to ensure that all Medicare plans include the drugs on their formularies.

Dr. Steve O’Brien from the East Bay AIDS Center in Oakland, California and a member of the American Academy of HIV Medicine testified on behalf of patients with HIV in Medicare, describing his experience with 450 Medicare-covered patients. He urged Congress to:

• Codify (make law) the regulations for the six protected classes of drugs
• Cover new drugs in the six protected classes, including antiretrovirals, within 30 days of FDA approval
• Set a cap for monthly cost-sharing for low income patients
• Guarantee drug coverage during enrollment transitions
• Allow ADAP payments to count toward true out of pocket costs or TrOOP

You can view Dr. O’Brien’s full testimony here.

Social Security Administration sending letters to people who may qualify for LIS or other programs assisting with Medicare costs:
The Social Security Administration (SSA) is sending out letters in May and June to people who could qualify for some type of extra help. The letters will fall into three categories:

• Beneficiaries whose income appears to be too high for Medicare Savings Programs (MSPs—programs that pays much of the cost for Medicare) but not too high for LIS will be encouraged to sign up for a Part D plan and LIS
• Beneficiaries who receive LIS and whose income appears to be less than 135% of the federal poverty level (FPL) will receive a letter encouraging sign up in a MSP.
• Beneficiaries whose income appears to be less than 135% FPL but are not enrolled in a MSP or LIS will receive a letter encouraging application to both.

Many people with HIV/AIDS are already connected with the programs for which they qualified, however, they may receive a letter anyway. Those who are not signed up and could qualify might be confused by the letters. Advocates should be aware information has gone out in order to be of assistance with questions. Advocates should also encourage beneficiaries to apply for the LIS through their state Medicaid office. Unlike SSA, states are required to do the appropriate screening for all programs.

National Medicare Legislative Update:

Several bills relating to Medicare Part D are pending in Congress. In the Senate, these include:

• S.1102 (Bingaman): Part D Equity for Low-Income Seniors Act of 2007—improves and expands the Low Income Subsidy
• S.1103 (Bingaman): Helping Fill the Medicare Rx Gap Act of 2007—changes calculation of TrOOP to, among other things, allow ADAP to count toward TrOOP
• S. 1107 (Smith): Home and Community Services Co-payment Equity Act of 2007—eliminates co-payments for full benefit dual eligibles in assisted living facilities
• S. 1108 (Smith): Medicare Part D Outreach and Enrollment Enhancement Act of 2007—would increase enrollment into the LIS

In the House, the bills include:

• H.R. 2056 (Courtney): Medicare Part D Improvement Act of 2007—would change calculations in TrOOP, including allowing ADAP to count, and improve and expand the LIS
• H.R. 153 (Doggett): would improve and expand the LIS

California State Update:

LIS Grace Period Ending:
Many Part D plans in California offered a grace period in the early months of 2007 to beneficiaries who qualified for LIS in 2006 but lost it in 2007. The period extended the benefit of the LIS for those who lost it, but the intent of the grace period was to allow people to re-qualify for the LIS, or to look for a lower priced plan. However, many beneficiaries either couldn’t re-qualify or didn’t realize that they had to apply again for LIS. Those people are now receiving notices that they owe retroactive premiums and cost sharing to their plans.

If people with HIV/AIDS find themselves in this situation, please contact Anne Donnelly.

California Bill to Allow Medi-Cal to Cover Co-Pays for Dual Eligibles Stalls:
SB 623 (Wiggins) which would have provided co-pay assistance for dual eligibles has stopped in the Appropriations Committee of the State Senate. Dual Eligibles with HIV/AIDS get assistance with co-pays through the ADAP for those drugs that are on the ADAP formulary. However, many dual eligibles have medication needs that are not on the ADAP formulary and this assistance could be a great relief for those additional drug costs.

Medicare Part D Reports and Analysis:

American Academy of HIV Medicine and HIV Medicine Association release provider survey
showing that Medicare Part D Failing People with HIV/AIDS
AAHIVM and HIVMA recently released a survey of their membership that identified major barriers to access in Medicare Part D for people with HIV/AIDS. Bureaucratic roadblocks, exorbitant co-pays and plans not covering key drugs were among the main problems encountered by providers trying to get medication for their patients. 83% of those responding to the survey had experienced problems getting drugs for patients and, of those reporting problems, 75% said their patients went without access to their medications for a period of time. For the full report, see either www.hivma.org or www.aahivm.org.

Commonwealth Fund Report Identifies Problems for Medicare
Low Income Beneficiaries and Recommends Improvements
“Improving Medicare Part D Programs for the Most Vulnerable Beneficiaries” is co-authored by National Senior Citizen’s Law Center, Georgetown University’s Health Policy Institute, and the Center for Medicare Advocacy. It finds that low-income beneficiaries are not well-served under Medicare Part D as it is currently configured and administered and makes recommendations for improvements. The report is available at www.nsclc.org.

General Accounting Office (GAO) Report Describes Part D Auto-Enrollment Lags; CMS Fails to Ensure Reimbursement for Dual Eligibles Who Paid Out of Pocket for Drugs
Dual Eligibles are still subject to significant time lags in the transfer of both enrollment and low income subsidy eligibility information according to the GAO. The back up system intended to cover dual eligibles during enrollment lags, Wellpoint, has not been effective. The GAO also criticized CMS for failing to inform beneficiaries of their right to be reimbursed for out of pocket cost during enrollment and LIS eligibility lags. And most dual eligibles likely went without their drugs during these periods due to an inability to pay for their drugs out of pocket. The report can be viewed at www.gao.gov.

Kaiser Family Foundation Study Outlines Experiences of Duals in Three States
“Perspectives on Medicare Part D and Dual Eligibles: Key Informant’s Views From Three States” examines the effect of Part D and how state policies affect access to prescription drugs. The report was co-authored by advocates from the National Health Law Project and Northwest Health Law Advocates. It is available at www.kff.org.

American Psychiatric Association (APA) Study Shows Duals Hurt During Transition to Medicare Part D
A recent study surveyed psychiatrists nationwide about their dual eligible patients’ ability to access psychiatric and other needed medications during the first four months of 2006, the start of Medicare Part D. More than 53% of these patients had at least one problem getting needed drugs, and 27.3% had a significant adverse clinical effect as a result of missing medication. The study is published in the May 2007 issue of the American Journal of Psychiatry and an abstract is available online.