For Professionals: Advocacy & Policy

California Low-Income Health Advocate Alert On Medicare Part D

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March 13, 2007

PLEASE DISTRIBUTE
More information on Medicare Part D, including past Alerts, can be found at cahealthadvocates.org/cmc/ website, and nsclc.org/areas/medicare-part-d

By California Health Advocates and the National Senior Citizens Law Center

State Update

Problems Continue for California’s Dual Eligibles

Advocates across the state report that beneficiaries continue to have problems accessing benefits under the Medicare Prescription Drug program. In recent months, advocates have reported:

Low Income Subsidy delays.

CMS is slow to communicate accurate LIS eligibility information to plans. As a result, low income beneficiaries are often asked to pay unsubsidized cost-sharing for their medications. NSCLC is particularly interested in hearing about LIS delay problems. If you have had or know of problems like this please call or email NSCLC as soon as possible. See also “Advocacy Tips” below for suggestions on resolving these types of problems.

Enrollment delays.

Advocates continue to report stories of dual eligibles who have had their Medi-Cal drug benefit terminated, but have not yet been enrolled in a Medicare prescription drug plan. The Point of Service option should be available to these beneficiaries. They can also enroll themselves in a plan online at www.medicare.gov, by calling 1-800-MEDICARE or by contacting a plan directly. Dual eligible beneficiaries can request that the enrollment be retroactive to their first day of dual eligibility.

Problems with the Point of Service (Wellpoint) system.

Some pharmacists are still unaware of, refuse, or struggling to use the Point of Service (Wellpoint) system. Pharmacists must follow four steps to file a claim under the Point of Service system. The four steps are described by CMS in the following document, http://www.cms.hhs.gov/….pdf. Pharmacists who have difficulty processing a claim should call the Anthem help line (1-800-662-0210).

Inappropriate premium bills.

Beneficiaries continue to have inappropriate amounts deducted from their Social Security checks. There are also many dual eligibles who continue to be billed monthly for premiums they are not obliged to pay. See the February 15th, 2007 Alert for more information on premium problems. Previous Alerts can be found at: www.cahealthadvocates.org/cmc/ and www.nsclc.org/….

Medicare Advantage marketing abuses.

As mentioned in the January 18th Alert and below, aggressive marketing of Medicare Advantage plans to dual eligibles continues. As a result, many beneficiaries have found themselves enrolled in plans that are not accepted by their providers. Beneficiaries who were misled into joining one of these plans may contact CMS to request a retroactive disenrollment.

And more.

California advocates continue to report problems with plans discontinuing coverage of medically necessary medication, exceptions and appeals, qualifying for the Low Income Subsidy and more.

Keep sending your stories. In order to help to get changes at the state and federal levels, we need to hear about the problems your low income clients are facing. We know that your time as advocates is already stretched thin, but any time you can take to report client stories would be extremely helpful. Instructions for reporting stories are available at the end of this Alert.

Federal Update

SEP for Beneficiaries Losing Their LIS

The Special Enrollment Period for individuals losing their Low Income Subsidy was originally set to end on March 31, 2007. As mentioned in last month’s Alert, a recent memorandum from CMS has revised the timing of this SEP. In its new form, the SEP lasts from January 1 to March 31 of each calendar year, OR starting the month the beneficiary is notified of the loss of LIS eligibility and 2 months after, whichever occurs later in the calendar year. For example, beneficiaries who receive notices in February 2007 indicating that their LIS eligibility will end effective March 1, 2007 will have the opportunity to make one election (i.e. to either enroll in a new plan, or to disenroll from Part D) from February 1, 2007 to April 30, 2007.

Medicare Advantage Open Enrollment Period Ends March 31, 2007

The Open Enrollment Period (OEP) during which Medicare beneficiaries can make one election, or change in certain kinds of plans, ends on March 31, 2007. The Open Enrollment Period applies to individuals who are changing Medicare Advantage (MA) plans or enrolling in or disenrolling from MA plans.

Beneficiaries can use the OEP to: 1) switch from a Medicare Advantage prescription drug plan (MA-PD) to another MA-PD or original Medicare with a Prescription Drug Plan (PDP); 2) switch from one MA-only plan (no prescription drug coverage) to another MA-only plan or original Medicare with no drug coverage; 3) switch from original Medicare with a PDP to a MA-PD; or 4) switch from original Medicare with no drug coverage to a MA-only plan. (For an easy visual representation of these options, go to the Health Assistance Partnership’s chart at www.hapnetwork.org/….pdf.)

An OEP cannot be used to enroll in prescription drug coverage for the first time or to drop prescription drug coverage entirely; it also cannot be used to switch from one (non-Medicare Advantage) prescription drug plan to another (non-Medicare Advantage) prescription drug plan (in other words, someone cannot use the OEP to switch from a PDP to another PDP). During an OEP, MA plans have the option of accepting new enrollment elections but are not required to do so. If an MA plan accepts any enrollments during an OEP, however, it must accept all enrollments into the plan.

Dual eligibles have a continuous Special Enrollment Period that allows them to switch into or out of Medicare Advantage plans (including plans with Part D coverage) at anytime.

CMS Rejects Advocates’ Claim that it is Misinterpreting the Law re: New Medicare Advantage Limited Open Enrollment Period (L-OEP)

As discussed in the last Issue Alert (2/15/07), the outgoing Congress in late 2006 created a new Medicare Advantage (MA) related enrollment period for Medicare beneficiaries. This new enrollment period allows individuals in the original, fee-for-service Medicare program one opportunity during the year in 2007 and 2008 to enroll in a Medicare Advantage-only plan (meaning an MA plan without Part D coverage). On February 7, 2007, CMS issued a memo to all Medicare Advantage Organizations describing this new enrollment period, which has been named the “Limited Open Enrollment Period” or “L-OEP.”

According to CMS’ interpretation of the authorizing legislation, Medicare enrollees with a stand-alone PDP will lose their Part D coverage altogether if they enroll in an MA-only HMO, PPO or Regional PPO. Recognizing that this is dangerous to Medicare beneficiaries, several advocacy groups, including NSCLC, signed on to a letter to CMS drafted by

California Health Advocates arguing that CMS is misinterpreting Medicare law with respect to elections permitted under the L-OEP. Specifically, the groups argued that 42 USC §1395w-21(e)(2)(E)(iv) prohibits beneficiaries from either enrolling in – or disenrolling from – any prescription drug plan under Part D during the L-OEP, consistent with other Medicare enrollment periods (including the OEP, described above).

In a letter dated, March 8, 2007, CMS rejected the advocates’ arguments (without addressing the above-cited provision), and stated “we have retained the existing process by which an individual enrolled in a PDP who elects enrollment in an MA coordinated care plan [HMO, PPO] will be automatically disenrolled from the PDP.” They note that “[p]lans may not enroll individuals who do not confirm their understanding of the consequences of their choice… [and] as an added safeguard, CMS will establish a special enrollment period (SEP), available on a case-by-case basis, to allow individuals to return to their PDP …. if, despite the required confirmation process, they subsequently indicate that they were unaware that they would lose their prescription drug coverage as a result of their L-OEP election.”

In California in 2007, this will impact individuals in Original Medicare with a stand alone prescription drug plan (PDP) who join local HMOs without Part D coverage. Such plans appear to be offered in over 1/3 of counties in California, including the most populous; see Medicare’s Landscape of Plan Options in California for 2007, available at: http://www.medicare.gov/….pdf

Note that if someone in Original Medicare and a PDP enrolls in an MA-only Private Fee-for-Service (PFFS) plan, s/he will be able to keep his/her Part D coverage (although they will be enrolled in a PFFS plan, which may change the providers they can see). Since the L-OEP applies when no other enrollment period is in effect, it will begin for most people starting April 1st.

For a copy of the advocates’ letter and the response from CMS visit www.nsclc.org/….

Advocates Continue to Encounter Marketing Misconduct re: the Sale of Medicare Advantage Plans

In a recent Issue Alert (1/17/07), we reported that advocates are encountering inappropriate marketing activities surrounding the sale of Part D and Medicare Advantage (MA) plans, particularly MA Private Fee-for-Service (PFFS) plans. Further, we noted that dual eligibles are being targeted to enroll in PFFS plans, which often results in them having to change doctors or disenroll from the plan in order to continue seeing their providers. While dual eligibles will continue to be targeted due to their ability to change plans on a monthly basis, the new Limited Open Enrollment Period (L-OEP), discussed above, ensures that non-dual eligibles will also be targeted for marketing year round (and could lose their PDP coverage if they enroll in certain plans).

Reports of marketing misconduct surrounding these plans continue, without any visible response taken by CMS. These problems are not just isolated to California; for example, during a Health Assistance Partnership call last month, among the many reported instances of marketing misconduct and its consequences, one advocate explained how a particular supplier of durable medical equipment (DME) in Texas repossessed a wheelchair and hospital bed from the home of a recently-enrolled PFFS plan member because the DME supplier did not agree to that plan's terms.

Health Insurance Counseling and Advocacy Program (HICAP) offices and other direct service providers across the state continue to report problems that range from outright fraud – such as signing people up for a plan without their consent (including forged signatures) – to agents who fail to adequately explain the consequences of plan enrollment to potential enrollees (for example, the caveat that PFFS enrollees can go to any doctor they want as long as the doctor agrees to accept the terms and conditions of the particular plan). Advocates continue to report unsolicited door-to-door marketing – activity that is clearly prohibited under CMS Marketing Guidelines – as well as variations on this theme, including agents who cold call Medicare beneficiaries but do not adequately explain who they are (agents contracted with a plan) and what their purpose is (to sell the person a product), yet still show up at people’s houses uninvited. Agents continue to target senior residences, adult day health centers, senior centers and other locations where they are likely to maximize enrollment (and commissions).

Last week, Bay Area Legal Aid filed a complaint with CMS re: WellCare Medicare Advantage plan’s marketing practices in Alameda County. BayLegal highlights one instance in which a WellCare agent marketed at a federally-subsidized senior housing complex and enrolled approximately 44 Limited English Proficient (LEP) Chinese-Americans. This event was conducted with no CMS-approved language appropriate printed materials. As part of their formal complaint, BayLegal has asked CMS to take certain corrective actions, including ensuring that plans which market to LEP populations have CMS approved written materials in the language that is appropriate for that population, and that all health plans actively oversee the information provided by their marketing agents. For more information about BayLegal’s complaint to CMS, contact Clare Crawford at CCrawford@baylegal.org. A copy of the complaint can be viewed at www.nsclc.org/…

For further discussion of marketing practices and suggested policy fixes, see the last Issue Alert (2/17/07) referencing California Health Advocates/Medicare Rights Center report on marketing. In addition, the current round of California Medicare Coalition Regional Forums, including several upcoming events (referenced below) focus on marketing issues. If you encounter instances of potential marketing misconduct, we suggest that you report the case to CMS; for further information, and to share stories of potential marketing misconduct, please contact David Lipschutz at California Health Advocates at dlipschutz@cahealthadvocates.org.

Updated Enrollment Data

CMS recently released updated Medicare Part D enrollment data. According to the data, there are currently 23.9 million individuals enrolled in a Medicare Prescription Drug Plan. Of these, 17.25 million are enrolled in a Stand-Alone Prescription Drug Plan (PDP) and 6.65 million are enrolled in a Medicare Advantage Prescription Drug (MA-PD) plan.

There are currently 9.18 million beneficiaries receiving the Low Income Subsidy. Most of these (6.88 million) were deemed eligible for the subsidy because they receive some form of Medicaid or are SSI recipients. The remainder (2.3 million) applied for the subsidy and were determined eligible by the Social Security Administration. There are still an estimated 3.27 million beneficiaries who are eligible for the Low Income Subsidy but do not yet receive it.
In California, there are approximately 3 million beneficiaries enrolled in a Medicare Part D plan. Of these beneficiaries, just under 1.7 million are enrolled in a PDP (940,312 of whom are dual eligbles) and just over 1.3 million are enrolled in MA-PDs (an unknown portion of which are dual eligibles).

CMS indicates that about 2.4 million Medicare Part D enrollees switched plans during the Annual Enrollment Period last Fall (representing 10% of all enrollees). Close to half of those who changed plan (1.17 million) were Low Income Subsidy recipients who were automatically reassigned to a new plan so that they would not have to pay increased premiums. In a tracking survey conducted by CMS, only 34% of the seniors surveyed reported comparing plans during the Annual Enrollment Period. An even smaller proportion of those surveyed (“over half” of the 34 percent who compared plans) appeared to have made a “thorough” comparison of their options, which CMS defined to mean consideration of premium, deductible or co-pays, and coverage.

Advocacy Tips

Resolving LIS Discrepancies: A New Strategy

As mentioned above, advocates continue to report that plans do not always have accurate Low Income Subsidy (LIS) information for its beneficiaries. We have heard many stories of low income beneficiaries who have been forced to overpay for or go without needed medications because their plan has not received information from CMS indicating that they are eligible for the subsidy.

As mentioned in last month’s Alert, according to CMS’ tentative guidance, plans are supposed to continue to apply a “best available data” policy in 2007, allowing recipients who can document their LIS status to receive the subsidy immediately. Beneficiaries who are entitled to LIS in 2007 therefore should take all possible evidence of their eligibility (e.g., state Medicaid card, a letter from the state Medicaid agency or SSA showing LIS status) with

them to the pharmacy in 2007. Advocates who encounter plans that refuse to apply the best available data policy are encouraged to file a complaint against that plan with CMS Region IX.

Another approach would be to file a coverage determination request. The latest version of the Medicare Prescription Drug Benefit Manual, Chapter 18 – Part D Enrollee Grievances, Coverage Determinations, and Appeals (see link in Section IV below) makes clear that plans “must subject complaints about co-payments to the coverage determination process when an enrollee believes that a Part D plan sponsor has asked him or her to pay a different cost-sharing amount than the enrollee believes he or she is required to pay for a prescription drug” (Chapter 18, p. 17). CMS Region IX staff has informally agreed that LIS co-payment issues are subject to the coverage determination process, Generally, however, plans are not handling subsidy problems through coverage determination channels, and advocates have not been asking for such treatment.

Advantages to filing coverage determinations to resolve LIS discrepancies:

  • Deadlines: Coverage determinations have deadlines: 72 hours for a standard request; 24 hours for an expedited request. Weekends and holidays count towards the deadlines, so using the coverage determination process could be particularly helpful if a problem arises on a Friday or in a holiday period. If the beneficiary has already paid the incorrect higher co-pay and is seeking reimbursement, the plan must make a decision within 72 hours and must mail the refund of the overpayment within 30 calendar days of the request.
  • Expedited treatment: If a beneficiary cannot get access to needed drugs because he or she cannot afford the non-LIS co-pay, and if the treating physician certifies that waiting for a decision under the standard time frame “may place the enrollee’s life, health, or ability to regain maximum function in serious jeopardy,” then the plan must make a coverage determination within 24 hours. NOTE: Nothing more is required of the physician other than making the certification, which can be done orally. Because a co-payment coverage determination is not an exception, no other supporting statement about the need for the drug is required.
  • Dedicated plan personnel: Coverage determination staff, with dedicated phone and fax numbers may be more responsive than plan customer service representatives (CSRs).
  • Documentation: If a plan denies a coverage determination, the reason for the denial must be stated in writing.
  • Appeal rights: All coverage determination appeal rights would apply. Moreover, if the plan fails to meet its deadlines, the case file must be sent directly to the IRE within 24 hours.
  • Statistics: CMS requires reporting of coverage determination requests and their outcomes.

Possible disadvantages to filing coverage determinations to resolve LIS discrepancies:

  • Unfamiliarity: Coverage determination staff may not know much about LIS issues so may not be able to address them quickly. They may need to be educated.
  • Responsibility: If the problem is more complex than simply getting the plan to accept best available evidence, the solution may lie with entities other than the plan. Working through CMS may be more effective in some cases.

Please report back. If you request a coverage determination, let us know what happens by contacting Georgia Burke at NSCLC, (510) 663-1055, ext. 304, or gburke@nsclc.org. For a more detailed discussion of coverage determinations and appeal rights generally, see NSCLC’s “Exceptions and Appeals: A Practical Guide,” available online at www.nsclc.org/….

Advocates can also try filing a coverage determination when pursuing retroactive reimbursement of incorrect co-pays in other situations. Since a request for retroactive reimbursement requires a decision by the “Part D plan sponsor regarding payment or benefits to which an enrollee believes he or she is entitled” it should be treated as a coverage determination. Requests for premium refunds, however, appear to be outside of the scope of the coverage determination process.

CHCR Protocols for Addressing Medicare Part D Problems

The Center for Health Care Rights has generously made available its protocols for addressing some Medicare Part D related problems. The protocols provide helpful tips for resolving problems related to the Low Income Subsidy and Special Enrollment Periods. The protocols are available at: www.nsclc.org/….

Information for Advocates

Upcoming schedule of events:

California Medicare Coalition Meetings:

  • April 4 – Southern California Meeting (10:00 a.m. – Noon) – Office of the Patient Advocate – Junipero Serra Building, Carmel Conference Room, 1st Floor, 320 W. 4th Street, Los Angeles
  • April 11 – Northern California Meeting (10:00 a.m. – Noon) – Sierra Sacramento Valley Medical Society, Conference Room B, 2nd Floor, 5380 Elvas Avenue, Sacramento

Schedule of California Medicare Coalition Regional Forums –9:30 am – Noon (Registration begins at 9:00 a.m.)

Topic: “Marketing of Rx Drug Plans in California”

  • March 20 – Monterey – San Carlos Cathedral Hall
  • April 24 – Loma Linda - DC Collins Auditorium at Drayson Center-Loma Linda University
  • May 8 – San Francisco - Mission Creek Senior Community – Swift Conference Room.
  • June 13 – Redding – location TBA

For more information on these upcoming events or to join the California Medicare Coalition please visit California Health Advocates' website: cahealthadvocates.org/cmc/.

Subscriptions/Workshops: To subscribe to California Health Advocates' bi-monthly electronic newsletter “CalMedicare Advocate” or to request information about our workshops for statewide organizations please email .

New Report: Medicare Drug Plans Fail Limited English Proficient Beneficiaries

A new survey conducted by NSCLC and the California Medicare Part D Language Access Coalition (including NHelp, NILC and many other advocacy and community based organizations) reveals that the call centers of the Medicare Prescription Drug Plans that serve low income beneficiaries are not meeting their obligation to serve Limited English Proficient (LEP) beneficiaries. The Centers for Medicare and Medicaid Services (CMS), the federal agency that administers the Medicare program, requires Medicare plan call centers to serve beneficiaries that do not speak English. There are many LEP Medicare beneficiaries across the country. In California alone, there are over 300,000 dual eligibles (individuals who qualify for both Medicare and Medicaid) who are LEP.

According to the report, “benchmark” plans (plans into which dual eligibles are automatically enrolled) in California are only able to serve LEP dual eligible beneficiaries in their primary language 55% of the time. Non-Spanish speaking LEP beneficiaries have even less success communicating with their plans. Plan sponsors are only able to serve non-Spanish speaking LEP dual eligible beneficiaries in their primary language 37% of the time. While the study focused on California, most of the plans surveyed are large plans which operate nationally. The poor performance in California is likely typical of plan performance in other regions.

Plan customer service representatives failed to connect survey callers to someone speaking their language for a variety of reasons. Unsuccessful calls were most often the result of the representative’s inability either to recognize that the caller was speaking a language other than English, or to identify the language being spoken. There were, however, also calls during which the representative correctly identified the language spoken, but still made no attempt to connect the caller to an interpreter. Many representatives told callers that they must speak English if they wanted assistance.

Even calls that successfully connected to an interpreter speaking the appropriate language did not always result in a successful exchange of information. While interpreters were generally linguistically competent, they were not always familiar with health systems concepts and terminology nor did they always meet professional interpretation standards requiring complete, undistorted, and accurate transmission of communications.

The survey also revealed that translated materials are not available to LEP beneficiaries. No one was able to obtain written information in a language other than English.

The results of the survey are consistent with beneficiary experiences generally. Since the advent of Part D, advocates who work with LEP beneficiaries and communities have had a difficult time securing language appropriate services for their clients. Call centers are rarely able to provide services in the client’s primary language and advocates have reported a lack of materials in languages other than English and Spanish. The lack of information available in non-English languages has added additional complexity and confusion to a program that is already difficult to comprehend.

The report recommends that plans develop detailed plans with comprehensive strategies for providing services to LEP individuals; provide in depth customer service and language assistance training to all plan staff that interact with beneficiaries; monitor contracted and in-house interpreters; and develop and distribute written translated materials.

The report also recommends that CMS: 1) strengthen, clarify, monitor and enforce all existing cultural and linguistic requirements imposed on Medicare Part D plans; 2) require plans to create and share with CMS comprehensive and detailed strategies for serving LEP beneficiaries; and 3) ensure that written materials are available in key languages.

The report is based on a “secret shopper” survey conducted by NSCLC in cooperation with the California Medicare Part D Language Access Coalition. During the survey, 417 calls were placed to the seven sponsors of benchmark plans in California. Calls were placed in eleven languages. Callers posed as LEP individuals seeking information for a dual eligible mother. Data collected was weighted to reflect the relative prevalence of the test languages within California’s dual eligible population.

The full report is available at www.nsclc.org/areas/medicare-part-d. Questions about the report or language access and the Medicare prescription drug program can be directed to Katharine Hsiao, khsiao@nsclc.org, or Kevin Prindiville, kprindiville@nsclc.org.

The California Part D Medicare Coalition is currently planning follow up advocacy. If you are interested in participating, please email Kevin (kprindiville@nsclc.org) or Katharine (khsiao@nsclc.org).

Updated Chart Provides 2007 California Benchmark Plan Contact Information

NSCLC has updated its “Medicare Part D California Benchmark Prescription Drug Plan Information and Forms” chart. The updated chart provides contact numbers and internet links to important information (formularies, participating pharmacies, enrollment forms, exception/prior authorization request forms, etc.) for each of California’s 9 benchmark plans for 2007. The chart is available at www.nsclc.org/….

New Report: Drug Prices Charged to Medicare Part D Beneficiaries Fluctuate Frequently, Increase Over the Year

A new report from Consumers Union demonstrates that the prices beneficiaries pay for their Part D drugs often increase during the year. Most Medicare beneficiaries are “locked in” to their Medicare prescription drug plan for a year. Unfortunately, the prices that beneficiaries pay for medications are not “locked in.” According to the report, more than a quarter of plans increased their costs by 5% or more for the surveyed drugs during 2006 and nearly all plans have already increased the costs of the drugs they offer in 2007. The report is available at www.consumersunion.org/….html.

New CMS Materials

CMS has released the final chapter of the Medicare Prescription Drug Manual: Chapter 14 – Coordination of Benefits. The document is available at www.cms.hhs.gov/….pdf.

As mentioned above, CMS has released a revised version of chapter 18 of the Medicare Prescription Drug Manual. “Chapter 18 – Part D Enrollee Grievances, Coverage Determinations, and Appeals,” is available at www.cms.hhs.gov/….pdf

Updated Kaiser Materials Provide Information on Medicare Prescription Drug Plans

The Kaiser Family Foundation has updated its “Health Plan Tracker” which provides local, regional and national information about Medicare Advantage and Medicare Prescription Drug Plans. The “Health Plan Tracker” is available at www.kff.org/medicare/healthplantracker.

Report Your Medicare Prescription Drug Stories!

In order to help to get changes at the state and federal levels, we need to hear about the problems your low income clients are facing. We know that your time as advocates is already stretched thin, but any time you can take to report client stories would be extremely helpful.

You can use NSCLC’s updated “Client Story Form” to report problems your clients have faced. You can access the new form at www.nsclc.org/areas/medicare-part-d. As mentioned above, this month NSCLC is particularly interested in reports of LIS delays. Thanks for sharing your stories and information.

Get More information about Medicare Part D on this website, and at www.nsclc.org/areas/medicare-part-d. We will continually post new training materials as this program develops. Other helpful websites:

For more information, e-mail California Health Advocates or NSCLC:

California Health Advocates

David Lipschutz

(213) 381-3670

National Senior Citizens Law Center

Jeanne Finberg

Katharine Hsiao

Georgia Burke

Kevin Prindiville

Anna Rich

# # #

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

California Health Advocates: cahealthadvocates.org

National Senior Citizens Law Center: nsclc.org

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