PLEASE CIRCULATE

July 21st, 2006

California Low-Income Health Advocate Alert
On Medicare Part D

More information on Medicare Part D, including past Alerts, can be found at the www.nsclc.org website, and at www.cahealthadvocates.org/cmc/index.html.

I. State Update

State Emergency Drug Benefit (EDB) for Dual Eligibles

As referenced in the June 15th Alert, the state legislature passed AB 813 in May, which established a new Emergency Drug Benefit (EDB) for individuals dually eligible for Medicare and Medi-Cal. This coverage, which will last through January 31, 2007, incorporates major changes to the old program, including a requirement that pharmacies submit a paper treatment authorization request (TAR) to Medi-Cal with an explanation of actions the pharmacy has taken in an attempt to receive payment through Medicare Part D.

On May 16, 2006, the Department of Health Services (DHS) issued a Medi-Cal Bulletin describing the EDB directed at pharmacists; a copy of the bulletin is available at: http://files.medi-cal.ca.gov/pubsdoco/publications/bulletins/notice/20060516_emergency_bulletin.pdf.
Based in part on feedback from advocates, DHS has stated that it is in the process of revising this bulletin, and will re-issue an updated version next month - August 2006. The new bulletin will be available at www.medi-cal.ca.gov/default.asp.

Flyer to be Sent to Dual Eligibles Regarding New Emergency Coverage

As referenced in the June 15th Alert, DHS has announced that it will send a special flyer describing the Emergency Drug Benefit (EDB) to all dual eligibles who have received the Reduction in Benefits Notice of Action (NOA). The EDB flyer will provide notice of the new emergency program, and will be sent out in 12 languages. The flyer, originally targeted for mailing in mid- to late-July, is currently on hold. When released, this flyer will be posted at www.nsclc.org/issues_health_medicareD_CA.html. This flyer, which will be mailed to approximately 1.1 million individuals, will include the statewide HICAP (Health Insurance Counseling and Advocacy Program) telephone number: (800)434-0222.
State Copay Bill for Dual Eligibles - SB 503 (Figueroa)

As reported in the last Alert, Part D advocates across the state continue to press for the state of California to provide a permanent safety net for dual eligibles. Although the legislature passed the Emergency Drug Benefit (EDB), coverage of Part D copayments for dual eligibles (amounts not covered by the low-income subsidy: between $1 and $5 per drug) did not make it into the state budget. Advocates have, however, been able to find a sponsor for a bill - SB 503 (Figueroa) - that would provide copay coverage for dual eligibles starting in January 2007. Passage of such a bill may prove to be difficult, however, and no action is expected until the legislature returns from recess in August. (Note that this bill briefly went under the number SB 558.)

II. Federal Update

GAO Report on Part D Call Centers: Caller Beware

On July 10th, the Government Accounting Office (GAO) released a report on Part D plan customer service call centers entitled "Medicare Part D - Prescription Drug Plan Sponsor Call Center Responses Were Prompt, but Not Consistently Accurate and Complete." The report found that customer service representatives (CSRs) at 10 of the largest PDP call centers "did not consistently provide accurate and complete responses" to 5 questions GAO posed, and "accurate and complete responses" were given to GAO on only about 1/3 of their calls. The report noted: "The overall accuracy and completeness rate for each call center ranged from 20 to 60 percent." These findings are troubling, but not surprising, to advocates who are assisting current Part D enrollees and anticipating the next Part D enrollment period, approximately 4 months away. The report can be found on the GAO website at: http://www.gao.gov/new.items/d06710.pdf

This GAO report comes on the heels of another report they issued in May on the quality of CMS' communications on the Part D benefit, including an analysis of the 1-800-MEDICARE phone line, the Medicare website and CMS publications. See GAO Report, "Medicare Communications to Beneficiaries on Prescription Drug Benefit Could Be Improved," May 3, 2006. See www.gao.gov/new.items/d06654.pdf.

Comments on CMS Draft Guidance

CMS has recently issued draft updates to various Part D guidance documents. CHA and NSCLC, along with a number of other advocacy organizations, have submitted comments to recent CMS Draft Guidelines on PDP Enrollment and Disenrollment, Coordination of Benefits, and the Annual Notices for MA-PD plans. In addition, comments are due August 15th on the draft 2007 Plan Reporting Requirements. See www.cms.hhs.gov/PaperworkReductionActof1995/PRAL/list.asp under CMS document #CMS-10185, Medicare Part D Reporting Requirements.
Comments already submitted on the Draft PDP Guidance can be found at:
http://www.cahealthadvocates.org/advocacy/2006/0714.html . Additionally, other comments will shortly be available on NSCLC's website at www.nsclc.org.

Sec. Leavitt Issues 4th Part D Progress Report

On June 14th, DHHS Sec. Leavitt released the Secretary's Progress Report IV on the Medicare Prescription Drug Benefit - see http://hhs.gov/medicare4.pdf Among other things, the Report touts annual savings of $1,100 for Part D enrollees. On the same day, CMS also released updated Part D enrollment data, claiming that over 38 million Medicare beneficiaries now have prescription drug coverage:
http://hhs.gov/news/press/2006pres/20060614.html

For a discussion of this Report, see the Center for Medicare Advocacy's Weekly Alert of June 22, 2006, at http://www.medicareadvocacy.org/PartD_06_06.22.Leavitts4thReport.htm

CMS Advises States that New Duals Do Not Need Advance Notice re: Termination of Medicaid Rx Benefits

CMS has released a Q&A in response to state inquires about Part D eligibility and notice requirements for dual eligibles. The following is a summary of the Q&A by the Health Assistance Partnership (HAP):

"The question asks if Medicaid programs that do not learn of a person's Part D eligibility until after the effective date of coverage, or before eligibility starts but without enough time to provide a required ten day advance notice of the discontinuation of Medicaid benefits, must still continue drug coverage through the notice period and while a hearing is pending. CMS responded that once a state receives notice of Part D eligibility, it must terminate Medicaid coverage as of the first day of Part D eligibility, regardless of whether or not advance notice or hearing rights have been sent to the individual. States should send a notice of action to beneficiaries stating their Medicaid services have been reduced and effective date of termination, but only grant hearing rights to those who claim they are not eligible for Part D benefits."

The CMS Q&A is available on Health Assistance Partnership Website, under "Low Income Subsidy" - "Q&A on Part D Eligibility and Notice Requirements" at: http://www.healthassistancepartnership.org/medicare/cms-updates.html. DHS has not indicated whether or not it will discontinue 10 day notices for California at this time.

CMS Issues Memo re: Late Enrollment Penalty

On June 30th, CMS issued a memo to all Part D sponsors regarding the late enrollment penalty (LEP) for 2006. The memo states that "an LEP will be assessed by CMS for each full calendar month following a beneficiary's Initial Enrollment Period (IEP), that falls during any continuous period of 63 days or longer in which a beneficiary:
• was eligible to enroll in a Part D plan,
• was not enrolled in a Part D plan, and
• was not covered under any other creditable prescription drug coverage.

The memo notes that the first beneficiaries who might incur an LEP in 2006 are those who submit enrollment forms to Medicare Part D plans between July 1, 2006 and November 30, 2006 and are entitled to a special election period (SEP).

The memo can be found on the CMS website at: http://www.cms.hhs.gov/States/Downloads/LEPGuidance.pdf

CMS Issues Memo re: Redetermination of Deemed LIS Status for 2007 and Auto-Enrolling Prospective Full-Benefit Dual Eligibles

In a memo dated July 6, 2006, CMS advises State Medicaid Directors that next month (August 2006) CMS will begin determining which beneficiaries are entitled to deemed LIS status for calendar year 2007 based upon state "MMA files." In August, CMS will notify all beneficiaries who are no longer deemed LIS-eligible for 2007 based on data received from the states. In an attempt to prevent Part D auto-enrollment data lags with respect to dual eligibles, the memo also describes a process whereby states are asked to include additional information in their monthly data sent to CMS.

The memo can be found at: http://www.omh.state.ny.us/omhweb/MedicareD/SMD-LIS-Status-1.html

CMS Releases Limited Data on Part D Complaints

CMS has recently released data regarding complaints it has received about the Medicare prescription drug plan. The data indicates that there were 2.3 complaints for every 1,000 enrollees during the month of June. Complaint rates were slightly higher for individuals in stand alone prescription drug plans than for those in Medicare Advantage plans. Nearly two thirds of the complaints were regarding enrollment or disenrollment problems. Although CMS touts the data as an indication that beneficiaries are satisfied with the program, advocates have found that beneficiaries are simply unsure how or to whom to file complaints or what they may complain about. The numbers in the data certainly do not match the experiences of advocates on the ground where beneficiaries continue to appropriate access needed medications.

CMS' press release regarding the complaint data is available at www.cms.hhs.gov/apps/media/press/release.asp?Counter=1905

III. Miscellaneous

Language Access Update

A group of advocates across the state continues to discuss the additional onerous burdens individuals with Limited English Proficiency (LEP) face in accessing Part D prescription drugs. For more information, contact Katharine Hsiao or Jeanne Finberg at the National Senior Citizens Law Center, Randy Boyle or Doreena Wong at the National Health Law Program, or Sonal Ambegaokar from the National Immigration Law Center.

California Health Advocates Launches Part D Community Discussion Web Page
California Health Advocates (CHA) is happy to announce the launching of the Medicare Part D Community Discussion page on their web site. Supported by the California HealthCare Foundation (CHCF), this page will provide a vibrant and up-to-date web venue reflecting current issues and problem areas in Part D and potential solutions. The site is designed to benefit the Health Insurance Counseling and Advocacy Program (HICAP) network, health consumer assistance organizations, community-based agencies and other individuals who are assisting Medicare beneficiaries and their families with Part D related problems, issues or questions. Bob Rosenblatt, the site's moderator and content developer, is a former Los Angeles Times Washington correspondent for over 26 years and currently, among other things, a columnist on health policy issues with the California HealthCare Foundation.
Medicare Part D Community Discussion web site users will be able to:
• Ask questions and post answers;
• Notify their colleagues about developments in communities that signify trends;
• Announce events;
• Make suggestions about what works;
• Learn about new developments in the Part D program; and
• Link to further web-based information and expertise.
The site will go live on July 25th, and can be found at: www.cahealthadvocates.org
Litigation Update - Situ Lawsuit

As discussed in previous issue alerts, National Senior Citizens Law Center (NSCLC) and the Center for Medicare Advocacy, Inc. (CMA) filed a class action lawsuit on behalf of dual eligibles in California and across the country on April 26, 2006. The case covers enrollment/subsidy problems.

The Centers for Medicare and Medicaid Services (CMS) assert that Part D problems have been resolved, while advocates continue to see problems. We are interested in hearing if you are seeing dual eligible clients having trouble due to any of the following issues: 1) on the wrong plan (plan differs from what they chose and enrolled in); 2) on more than one plan; 3) not on a plan at all; 4) not correctly receiving the LIS. Please contact Kevin Prindiville at kprindiville@nsclc.org.

A hearing on Situ is currently scheduled for late August.

Recent Resources & Publications on Medicare Part D and Low-Income Populations

Kaiser Family Foundation - Medicare Health and Prescription Drug Plan Tracker
This site provides information about enrollment in stand-alone Part D prescription drug plans (PDPs) and Medicare Advantage plans by state and county. See:
http://www.kff.org/medicare/healthplantracker/

Experiences with Medicare Part D: Stories from Low-Income, Ethnically Diverse and Medically Needy Californians
A report prepared by Lake Research Partners, and funded by The California Endowment, describes the experiences of 35 "vulnerable" Medicare beneficiaries with the early implementation of Medicare Part D prescription drug program available at http://calendow.org/reference/publications/pdf/npolicy/Lake%20Report%20final%20June%2023%202006.pdf

Center for Medicare Advocacy - Part D Progress Report
The Center for Medicare Advocacy (CMA) released a progress report on July 19th, 2006 on the continuing problems beneficiaries face since the new Medicare prescription drug benefit began 6 months ago. The report contains actual client stories that are illustrative of the thousands of problems that have resulted from the inconsistency of the Medicare Part D drug benefit. CMA also makes recommendations to both Congress and CMS to both address these problems and improve the Part D benefit. The progress report is available at http://www.medicareadvocacy.org/PartD_6MonthReport072006.pdf

FamiliesUSA Reports
"Big Dollars, Little Sense: Rising Medicare Prescription Drug Prices" found at:
http://www.familiesusa.org/resources/publications/reports/big-dollars-little-sense.html

"The Medicare Drug Program Fails to Reach Low-Income Seniors" found at:
http://www.familiesusa.org/assets/pdfs/Medicare-Enrollment-report-May-2006.pdf

Keep Those Stories Coming

The adverse publicity regarding the problems that dual eligibles are facing is helping to get the changes we need at the state and federal levels. We need to keep our client stories in the press to get more permanent relief, and we need plaintiffs for our dual eligibles lawsuit. Please help us by identifying clients or their family members who are willing and able to talk to the press, or willing to be named plaintiffs. Send stories and contacts to jfinberg@nsclc.org, khsiao@nsclc.org or oakland@nsclc.org. An optional form is available at: www.nsclc.org/news/06/partd_stories2_.pdf.

More information about Medicare Part D is posted on www.calmedicare.org, and on the main page and California page of the NSCLC website, which you can view at www.nsclc.org. We will continually post new training materials as this program develops. Other helpful websites: Center for Medicare Advocacy at www.medicareadvocacy.org; Health Consumer Alliance at www.healthconsumer.org; Families USA at www.familiesusa.org; Medicare Rights Center at www.medicarerights.org; California Health Advocates at www.cahealthadvocates.org; California HealthCare Foundation at www.chcf.org/topics/healthinsurance/drugbenefit; Health Assistance Partnership at www.healthassistancepartnership.org; and Kaiser Family Foundation at www.kff.org/medicare.

For more information, e-mail NSCLC or CHA:

National Senior Citizens Law Center
Jeanne Finberg
jfinberg@nsclc.org
Katharine Hsiao
khsiao@nsclc.org
Georgia Burke
gburke@nsclc.org
Kevin Prindiville
kprindiville@nsclc.org
(510) 663-1055
California Health Advocates
David Lipschutz
dlipschutz@cahealthadvocates.org
(213) 381-3670

This Alert is provided by the National Senior Citizens Law Center in partnership with California Health Advocates with support from The California Endowment