For Professionals: Advocacy & Policy

Medicare Plans Still Not Accepting Best Available Evidence of LIS Eligibility

May 7, 2008

BAE policy applies when beneficiary presents evidence of LIS eligibility but CMS records show otherwise

Local HICAP (Health Insurance Counseling and Advocacy Program) offices continue to find that many Medicare Part D plans and Medicare Advantage prescription drug (MA-PD) plans are still not following the best available evidence (BAE) policy. The policy applies when a Medicare beneficiary presents evidence that he or she is also eligible for full Medi-Cal (the Medicaid program in California) benefits or institutionalized, thus automatically enrolled in the low income subsidy (LIS) or extra help, but Medicare records show otherwise. Under the policy, plans may accept evidence of LIS eligibility presented by the beneficiary and approve the lower copayments at the point-of-sale, then follow-up with additional documentation within a specified period of time. However, beneficiaries and HICAP offices still find that they have to jump through many hoops before plans will accept evidence of LIS eligibility, if they accept it at all.

Typical case scenario

In a typical case scenario, a Medicare beneficiary comes to a HICAP office because she was charged a copayment higher than $2.25 for a generic drug or $5.60 for a brand name drug. The beneficiary shows her Medi-Cal or Benefits Identification card with a recent date of issue. The HICAP Counselor calls the beneficiary’s Medicare Part D plan and explains the situation. The plan’s Customer Service Representative (CSR) responds that the beneficiary’s Medicare record shows that she is eligible for Medicare only and not Medi-Cal. The HICAP Counselor offers to fax a copy of the beneficiary’s Medi-Cal card, but the plan’s CSR declines, stating that the plan can accept such data only from Medicare.

BAE policy has been in CMS correspondence since 2006

The Centers for Medicare and Medicaid Services (CMS) first articulated the BAE policy in a memo to plan sponsors dated May 5, 2006. On December 6, 2006, CMS issued another memo to plan sponsors with instructions on how to implement the BAE policy. The most recent CMS memo to plan sponsors on the BAE policy was dated June 27, 2007. www.cms.hhs.gov/….pdf On the 2008 Part D Readiness Checklist dated September 4, 2007, an item on the BAE policy directs Part D plans to: “Implement an effective process to accept and process ‘best available evidence’ to charge low income subsidy beneficiaries the correct premium, deductible and cost-sharing.” www.cms.hhs.gov/….pdf

What constitutes “best available evidence”?

A Medicare beneficiary may qualify for the LIS based on full Medi-Cal eligibility, residence in an institution, or a determination from the Social Security Administration (SSA).
Evidence that constitutes “best available evidence” showing a beneficiary’s full dual eligibility includes:(1)

A copy of the beneficiary’s Medi-Cal card which includes the beneficiary’s name and date of eligibility;
A report of contact with Medi-Cal, including the date a call was placed to a Medi-Cal office, the name, title and phone number of the state staff person who verified that the beneficiary was eligible for Medi-Cal during the period in question;
A copy of a state document that confirms the beneficiary’s active Medi-Cal status during the period in question;
A print-out from a Medi-Cal enrollment file showing that the beneficiary is eligible for Medi-Cal during the period in question;
A screen print from Medi-Cal’s system showing that the beneficiary is eligible for Medi-Cal during the period in question; or
Other documentation provided by Medi-Cal that the beneficiary is eligible for Medi-Cal during the period in question.

Evidence that constitutes “best available evidence” showing a beneficiary’s residence in an institution and qualification for $0 copayment includes:(2)

A remittance from the facility showing Medi-Cal payment for the beneficiary for a full calendar month during the period in question;
A copy of a state document that confirms Medi-Cal payment for the beneficiary for a full calendar month during the period in question; or
A screen print from Medi-Cal’s system showing the beneficiary’s institutional status based on at least a full calendar month stay for Medi-Cal payment purposes during the period in question.

For Medicare beneficiaries who qualify for the LIS through the Social Security Administration (SSA) but are not dually eligible for Medi-Cal or institutionalized, plans are supposed to accept the letter of award from SSA, according to the memo on BAE dated June 27, 2007, until CMS develops a process for these LIS eligible beneficiaries.

Failure to implement BAE policy leads to beneficiary harm

Although the BAE policy is well-documented in CMS correspondence to plan sponsors and pharmacists, its implementation leaves much to be desired. Continuing with the case scenario described above, the HICAP Counselor explains the BAE policy to the CSR. In many cases, the plan’s CSR has never heard of the BAE policy. In some cases, after much persistence, the HICAP Counselor may be transferred to a supervisor. Not all supervisors know or understand the BAE policy. In some cases, a supervisor gives the HICAP Counselor a fax number to send a copy of the beneficiary’s Medi-Cal status. However, the HICAP Counselor or beneficiary may not hear back from the plan that the beneficiary’s record has been corrected. In some cases, the next time the beneficiary goes to the pharmacy, he or she is again charged a copayment higher than $2.25 for a generic drug or $5.60 for a brand name drug. We are unaware of any reports that have tracked the number of beneficiaries affected by the plans’ failure to implement the BAE policy, but there are already one too many. While some beneficiaries pay the incorrect higher copayment, many cannot afford to pay and risk not taking their medications. Even if a beneficiary’s record is eventually corrected, the beneficiary has suffered long delays and expended much effort to get his or her medication.

In cases where the plan’s CSR will not transfer the HICAP Counselor to a supervisor or the supervisor does not know about the BAE policy or does not provide a fax number, the HICAP Counselor then calls 1-800-MEDICARE. Sadly, cases have been reported that CSRs at 1-800-MEDICARE do not know the BAE policy either. In a few cases, the CSR told the HICAP Counselor that the dually eligible beneficiary must contact the SSA and apply for the LIS.

The irony is obvious in light of a statement that “CMS is establishing a separate complaint tracking category for ‘best available evidence’ issues and will be closely monitoring Part D plan compliance with our policy.”(3) Training frontline CSRs about the BAE policy is clearly needed at the plans as well as at 1-800-MEDICARE.

CMS plans to strengthen BAE policy in 2009

Regardless of the need for training, CMS is moving ahead to strengthen the BAE policy. In the 2009 Call Letter to Part D and MA-PD plans dated March 17, 2008, CMS reiterated the BAE policy then laid out three developments to the policy:(4)

Plan sponsors will have to update their data systems based on the “best available evidence” received within 48-72 hours from receipt of the evidence from the beneficiary. Currently, plans do not have a timeframe within which they must update their data systems.
In cases of immediate need, as when a beneficiary has fewer than 3 days of medication available, plan sponsors must have a process in place to permit the beneficiary to receive an emergency supply of the medication.
CMS will create a page about the BAE policy and guidance on the CMS Website. Plan sponsors will be required to establish a link to the BAE page from the plan’s Website to allow interested parties to access to the information about the policy.

While advocates applaud CMS’s effort to strengthen the BAE policy, we believe that some plans as well as 1-800-MEDICARE need to get their CSRs up to speed on the policy.

Tips for helping LIS eligible beneficiaries

Even if the separate complaint tracking category that CMS has established for ‘best available evidence’ issues identifies which plans are still not implementing the BAE policy, reports of non-compliance may not be available until next year. In the meantime, how can HICAP Counselors and others help LIS eligible beneficiaries who are charged incorrect higher copayments?

Before contacting the plan, verify the beneficiary’s eligibility for LIS. (See above for what constitutes “best available evidence” for eligibility based on full Medi-Cal, residence in an institution and qualification from SSA.) Then follow these tips from Aileen Harper, Executive Director of the Center for Health Care Rights (CHCR):

Call the Part D or MA-PD plan, explain the problem and offer to fax evidence of eligibility.

If the plan accepts the offer and provides a fax number, ask when beneficiary’s record will be corrected. If the answer is >2 days, ask to speak with a plan supervisor.
If the plan does not know what the BAE policy is, ask for a fax number and fax a copy of the CMS memo to plan sponsors dated June 27, 2007, “Part D Guidance – Low Income Subsidy (LIS) Status Correction Based on Best Available Evidence,” which can be found at www.cms.hhs.gov/….pdf

If the CSR is not responsive, ask to speak to a plan supervisor.
If the CSR or plan supervisor is responsive to the CMS memo on the BAE policy, offer to fax evidence of eligibility. If the plan accepts the offer and provides a fax number, ask when beneficiary’s record will be corrected. If the answer is >2 days, ask to speak with a supervisor at the next level.

If the CSR or plan supervisor is not responsive, call 1-800-MEDICARE and log a complaint against the plan, and specify that the plan failed to follow the BAE policy.

If the beneficiary needs medication immediately, work with the pharmacist, assuring him or her that the plans are supposed to provide network pharmacies with direct reimbursement for any cost-sharing amounts not collected from LIS eligible beneficiaries.

Your assistance needed to track BAE cases

CHA needs your assistance to track instances in which plans have failed to follow the BAE process. We hear about plans not accepting the BAE, but we need numbers to advocate for change. If you have a case, please email Elaine Wong Eakin at or fax to 510-927-2599 the following information:

Name of plan
Is the beneficiary eligible for the LIS based on:

full Medi-Cal benefits,
residence in a nursing home or
SSA Notice of Award?

Did plan’s CSR know about the BAE policy?

If yes, did plan’s CSR provide a fax number for you or beneficiary to fax the BAE?
If no, did the supervisor at the next level know about the BAE policy?

Were you able to resolve the problem with the plan?

If yes, was the beneficiary able to get medication at the appropriate copayment at point-of-sale?
If no, did you call 1-800-MEDICARE to file a complaint that the plan failed to comply with the BAE policy?
If you called 1-800-MEDICARE, did the CSR know about the BAE policy?

Any other helpful information you would like to provide.

Footnotes

CMS letter to pharmacist dated November 1, 2007. www.cms.hhs.gov/pharmacy/downloads/update110107.pdf
CMS letter to pharmacist dated November 1, 2007. www.cms.hhs.gov/pharmacy/downloads/update110107.pdf
CMS letter to pharmacist dated November 1, 2007. www.cms.hhs.gov/pharmacy/downloads/update110107.pdf
CMS 2009 Combined Call Letter to Medicare Plan Sponsors, page 65. http://www.cms.hhs.gov/PrescriptionDrugCovContra/

back to Advocacy & Policy