109th CONGRESS
2d Session
H. R. 4660
To provide for necessary beneficiary protections in order to ensure
access to coverage under the Medicare part D prescription drug program.
IN THE HOUSE OF REPRESENTATIVES
January 31, 2006
Mr. ALLEN (for himself, Mr. BROWN of Ohio, Mr. BERRY, Mr. ROSS, Mr. MICHAUD,
Mr. STRICKLAND, and Mr. WYNN) introduced the following bill; which was referred
to the Committee on Energy and Commerce, and in addition to the Committee
on Ways and Means, for a period to be subsequently determined by the Speaker,
in each case for consideration of such provisions as fall within the jurisdiction
of the committee concerned
A BILL
To provide for necessary beneficiary protections in order to ensure
access to coverage under the Medicare part D prescription drug program.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Requiring Emergency Pharmaceutical
Access for Individual Relief (REPAIR) Act of 2006'.
(b) Table of Contents- The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents
Sec. 2. Transition requirements
Sec. 3. Federal fallback for full-benefit dual eligible individuals for
2006
Sec. 4. Identifying full-benefit dual eligible individuals in data records
Sec. 5. Prohibition on conditioning Medicaid eligibility for individuals
enrolled in certain creditable prescription drug coverage on enrollment
in the Medicare part D drug program
Sec. 6. Ensuring that full-benefit dual eligible individuals are not overcharged
Sec. 7. Reimbursement of States for 2006 transition costs
Sec. 8. Facilitation of identification and enrollment through pharmacies
of full-benefit dual eligible individuals in the Medicare part D drug
program
Sec. 9. State health insurance program assistance regarding the new Medicare
prescription drug benefit
Sec. 10. Additional Medicare part D informational resources
Sec. 11. GAO study and report on the imposition of co-payments under part
D for full-benefit dual eligible individuals residing in a long-term care
facility
Sec. 12. State coverage of non-formulary prescription drugs for full-benefit
dual eligible individuals during 2006
Sec. 13. Protection for full-benefit dual eligible individuals from plan
termination prior to receiving functioning access in a new part D plan
SEC. 2. TRANSITION REQUIREMENTS.
(1) IN GENERAL- Section 1860D-4(b) of the Social Security Act (42 U.S.C.
1395w-104(b)) is amended by adding at the end the following new paragraphs:
`(4) TRANSITION PERIOD FOR DRUG COVERAGE-
`(A) IN GENERAL- In the case of an individual who has made an election
to enroll (or to change such an election) in a prescription drug plan
under this part (or an MA-PD plan under part C) and who as of the effective
date of such election (or change) has a prescription for a drug that
a physician has determined necesary to stabilize such individual on
a course of treatment, if such prescription would expire within the
30-day period beginning on the day after such effective date, the PDP
sponsor of the plan shall provide at least a 30-day supply of such drug
at the dosage previously prescribed by a physician without imposing
any prior authorization requirements or other access restrictions for
such individual.
`(B) APPLICATION TO LONG-TERM CARE SETTING- In the case of an individual
described in subparagraph (A) who is residing in a long-term care setting
as of the effective date described in such subparagraph, any reference
to a 30-day period or 30-day supply shall be deemed a reference to a
90-day period or a 90-day supply, respectively.
`(5) CUSTOMER SERVICE- The sponsor of a prescription drug plan under this
part (or an MA-PD plan under part C) shall provide--
`(A) accessible and trained customer service representatives available
for full business hours from coast to coast to provide knowledgeable
assistance to individuals seeking help with Medicare part D including,
beneficiaries, caseworkers, SCHIP counselors, pharmacists, doctors,
and caregivers;
`(B) at least one dedicated phone line for pharmacists with sufficient
staff to reduce wait times for pharmacists seeking Medicare part D assistance
to no more than 20 minutes; and
`(C) sufficient staff to reduce wait times for all Medicare part D-related
calls to plan phone lines to no more than 20 minutes.'.
(2) APPLICATION- The requirements under paragraphs (4) and (5) of section
1860D-4(b) of the Social Security Act (42 U.S.C. 1395w-104(b)), as added
by subsection (a), shall apply to the plan serving as the national point
of sale contractor under part D of title XVIII of such Act.
(b) Enforcement- The Secretary may impose a civil monetary penalty in an
amount not to exceed $15,000 for conduct that a sponsor of a prescription
drug plan or an organization offering an MA-PD plan knows or should know
is a violation of the provisions of paragraph (4) or (5) of section 1860D-4(b)
of the Social Security Act (42 U.S.C. 1395w-104(b)), as added by subsection
(a). The provisions of section 1128A of the Social Security Act (42 U.S.C.
a-7a), other than subsections (a) and (b) and the second sentence of subsection
(f), shall apply to a civil monetary penalty under the previous sentence
in the same manner as such provisions apply to a penalty or proceeding under
subsection (a) of such section 1128A(a).
SEC. 3. FEDERAL FALLBACK FOR FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS FOR
2006.
(1) IN GENERAL- If a full-benefit dual eligible individual (as defined
in section 1935(c)(6) of the Social Security Act (42 U.S.C. 1396u-5(c)(6))),
or an individual who is presumed to be such an individual pursuant to
subsection (b), presents a prescription for a covered part D drug (as
defined in section 1860D-2(e) of such Act (42 U.S.C. 1395w-102(e))) at
a pharmacy in 2006 and the pharmacy is unable to locate or verify the
individual's enrollment through a reasonable effort, including the use
of the pharmacy billing system or by calling an official Medicare hotline,
or to bill for the prescription through the plan serving as the national
point of sale contractor, the pharmacy may provide a 30-day supply of
the drug to the individual.
(2) REFILL- The pharmacy may provide an additional 30-day supply of a
drug if the pharmacy continues to be unable to locate the individual's
enrollment through such reasonable efforts or to bill for the prescription
through the plan serving as the national point of sale contractor when
a prescription is presented on or after the date that a prescription refill
is appropriate, but in no case after December 31, 2006.
(3) COST-SHARING- The cost-sharing for a prescription filled pursuant
to this subsection shall be cost-sharing provided for under section 1860D-14(a)
of the Social Security Act (42 U.S.C. 1395w-114(a)).
(b) Presumptive Eligibility- An individual shall be presumed to be a full-benefit
dual eligible individual (as so defined) if the individual presents at the
pharmacy with--
(1) a government issued picture identification card;
(2) reliable evidence of Medicaid enrollment, such as a Medicaid card,
recent history of Medicaid billing in the pharmacy patient profile, or
a copy of a current Medicaid award letter; and
(3) reliable evidence of Medicare enrollment, such as a Medicare identification
card, a Medicare enrollment approval letter, a Medicare Summary Notice,
or confirmation from an official Medicare hotline.
(c) Payments to Pharmacists-
(1) IN GENERAL- The Secretary of Health and Human Services shall reimburse
pharmacists, to the extent that such pharmacists are not otherwise reimbursed
by States or plans, for the costs incurred in complying with the requirements
under subsection (a), including acquisition costs, dispensing costs, and
other overhead costs. Such payments shall be made in a timely manner from
the Medicare Prescription Drug Account under section 1860D-16 of the Social
Security Act (42 U.S.C. 1395w-116) and shall be deemed to be payments
from such Account under subsection (b) of such section.
(2) RETROACTIVE APPLICATION TO BEGINNING OF 2006- The costs incurred by
a pharmacy which may be reimbursed under paragraph (1) shall include costs
incurred during the period beginning on January 1, 2006, and before the
date of enactment of this Act.
(d) Recovery of Costs From Plans by Secretary not Pharmacies- The Secretary
of Health and Human Services shall establish a process for recovering the
costs described in subsection (c)(1) from prescription drug plans (as defined
in section 1860D-1(a)(3)(C) of the Social Security Act (42 U.S.C. 1394w-101(a)(3)(C)))
and MA-PD plans (as defined in section 1860D-41(a)(14) of such Act (42 U.S.C.
1395w-151(a)(14))) if the Secretary determines that such plans should have
incurred such costs. Amounts recovered pursuant to the preceding sentence
shall be deposited in the Medicare Prescription Drug Account described in
subsection (c)(1).
SEC. 4. IDENTIFYING FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS IN DATA RECORDS.
(a) In General- The Secretary of Health and Human Services and a prescription
drug plan or an MA-PD plan shall clearly identify all full-benefit dual
eligible individuals (as defined in section 1935(c)(6) of the Social Security
Act (42 U.S.C. 1396u-5(c)(6))) and reflect the low-income subsidy status
of such individual for each calender year (beginning with 2006) in every
data record file used to enroll or adjudicate claims for such individuals.
(b) Enrollment- For each calendar year (beginning with 2006) and for each
Medicaid beneficiary who is a full-benefit dual eligible individual (as
so defined), the Secretary of Health and Human Services shall--
(1) identify in the Medicare enrollment database that such individual
has dual eligible status that has been verified with a State, including
the District of Columbia; and
(2) ensure that such dual eligible status is reflected in each data file
necessary to ensure that such status is transmitted to a prescription
drug plan or an MA-PD plan when the Secretary certifies the enrollment
of such an individual in a plan.
(c) Definition of MA-PD Plan and Prescription Drug Plan- For purposes of
this section, the terms `MA-PD plan' and `prescription drug plan' have the
meaning given such terms in sections 1860D-1(a)(3)(C) and 1860D-41(a)(14)
of the Social Security Act (42 U.S.C. 1395w-101(a)(3)(C); 1395w-151(a)(14)),
respectively.
SEC. 5. PROHIBITION ON CONDITIONING MEDICAID ELIGIBILITY FOR INDIVIDUALS
ENROLLED IN CERTAIN CREDITABLE PRESCRIPTION DRUG COVERAGE ON ENROLLMENT
IN THE MEDICARE PART D DRUG PROGRAM.
(a) In General- Section 1935 of the Social Security Act (42 U.S.C. 1396v)
is amended by adding at the end the following:
`(f) Prohibition on Conditioning Eligibility for Medical Assistance for
Individuals Enrolled in Certain Creditable Prescription Drug Coverage on
Enrollment in Medicare Prescription Drug Benefit-
`(1) IN GENERAL- A State shall not condition eligibility for medical assistance
under the State plan for a part D eligible individual (as defined in section
1860D-1(a)(3)(A)) who is enrolled in creditable prescription drug coverage
described in any of subparagraphs (C) through (H) of section 1860D-13(b)(4)
on the individual's enrollment in a prescription drug plan under part
D of title XVIII or an MA-PD plan under part C of such title.
`(2) COORDINATION OF BENEFITS WITH PART D FOR OTHER INDIVIDUALS- Nothing
in this subsection shall be construed as prohibiting a State from coordinating
medical assistance under the State plan with benefits under part D of
title XVIII for individuals not described in paragraph (1).'.
(b) Nullification of State Plan Amendments, Redetermination of Eligibility-
In the case of a State that, as of the date of enactment of this Act, has
an approved amendment to its State plan under title XIX of the Social Security
Act with a provision that conflicts with section 1935(f) of such Act (as
added by subsection (a)), such provision is, as of such date of enactment,
null and void. The State shall redetermine any applications for medical
assistance that have been denied solely on the basis of the application
of such a State plan amendment not later than 90 days after the date of
enactment of this Act.
SEC. 6. ENSURING THAT FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS ARE NOT OVERCHARGED.
(a) In General- Section 1860D-14 of the Social Security Act (42 U.S.C. 1395w-114)
is amended--
(1) by redesignating subsection (d) as subsection (e); and
(2) by inserting after subsection (c) the following new subsection:
`(d) Ensuring Full-Benefit Dual Eligible Individuals Are not Overcharged-
`(1) IN GENERAL- The Secretary shall, as soon a possible after the date
of enactment of this subsection, establish processes for the following:
`(A) TRACKING INAPPROPRIATE PAYMENTS- The Secretary shall track full-benefit
dual eligible individuals enrolled in a prescription drug plan or an
MA-PD plan to determine whether such individuals were inappropriately
subject under the plan to a deductible or cost-sharing that is greater
than is required under section 1860D-14.
`(B) REDUCTION IN PAYMENTS TO PLANS AND REFUNDS TO INDIVIDUALS- If the
Secretary determines under subparagraph (A) that an individual was overcharged,
the Secretary shall--
`(i) reduce payments to the sponsor of the prescription drug plan
under section 1860D-15 or to the organization offering the MA-PD plan
under section 1853 that inappropriately charged the individual by
an amount equal to the inappropriate charges; and
`(ii) refund such amount to the individual within 60 days of the determination
that the individual was inappropriately charged.
If the Secretary does not provide for the refund under clause (i) within
the 60 days provided for under such clause, interest at the rate established
under section 6621(a)(1) of the Internal Revenue Code of 1986 shall
be payable from the end of such 60-day period until the date of the
refund.
`(2) REQUIREMENT- The processes established under paragraph (1) shall
provide for the ability of an individual to notify the Secretary if the
individual believes that they were inappropriately subject under the plan
to a deductible or cost-sharing that is greater than is required under
section 1860D-14.'.
(b) Report to Congress- Not later than January 1, 2007, the Secretary of
Health and Human Services shall submit a report to Congress on the implementation
of the processes established under subsection (d) of section 1860D-14 of
the Social Security Act (42 U.S.C. 1395w-114), as added by subsection (a).
SEC. 7. REIMBURSEMENT OF STATES FOR 2006 TRANSITION COSTS.
(1) IN GENERAL- Notwithstanding section 1935(d) of the Social Security
Act (42 U.S.C. 1396u-5(d) or any other provision of law, the Secretary
of Health and Human Services shall reimburse States for 100 percent of
the costs incurred by the State during 2006 for covered part D drugs (as
defined in section 1860D-2(e) of such Act (42 U.S.C. 1395w-102(e))) for
part D eligible individuals (as defined in section 1860D-1(a)(3)(A) of
the Social Security Act (42 U.S.C. 1394w-101(a)(3)(A))) which the State
reasonably expected would have been covered under such part but were not
because the individual was unable to access on a timely basis prescription
drug benefits to which they were entitled under such part. Such payments
shall be made from the Medicare Prescription Drug Account under section
1860D-16 of the Social Security Act (42 U.S.C. 1395w-116) and shall be
deemed to be payments from such Account under subsection (b) of such section.
(2) RETROACTIVE APPLICATION TO BEGINNING OF 2006- The costs incurred by
a State which may be reimbursed under paragraph (1) shall include costs
incurred during the period beginning on January 1, 2006, and before the
date of enactment of this Act.
(b) Recovery of Costs From Plans by Secretary not States- The Secretary
of Health and Human Services shall establish a process for recovering the
costs described in subsection (a)(1) from prescription drug plans (as defined
in section 1860D-1(a)(3)(C) of the Social Security Act (42 U.S.C. 1394w-101(a)(3)(C)))
and MA-PD plans (as defined in section 1860D-41(a)(14) of such Act (42 U.S.C.
1395w-151(a)(14))) if the Secretary determines that such plans should have
incurred such costs. Amounts recovered pursuant to the preceding sentence
shall be deposited in the Medicare Prescription Drug Account described in
subsection (a)(1).
(c) State- For purposes of this section, the term `State' includes the District
of Columbia.
SEC. 8. FACILITATION OF IDENTIFICATION AND ENROLLMENT THROUGH PHARMACIES
OF FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS IN THE MEDICARE PART D DRUG PROGRAM.
(a) In General- The Secretary of Health and Human Services shall provide
for outreach and education to every pharmacy that has participated in the
Medicaid program under title XIX of the Social Security Act, particularly
independent pharmacies, on the following:
(1) The needs of full-benefit dual eligible individuals and the challenges
of meeting those needs.
(2) The processes for the transition from Medicaid prescription drug coverage
to coverage under such part D for such individuals.
(3) The processes established by the Secretary to facilitate, at point
of sale, identification of drug plan assignment of such population or
enrollment of previously unidentified or new full-benefit dual eligible
individuals into Medicare part D prescription drug coverage, including
how pharmacies can use such processes to help ensure that such population
makes a successful transition to Medicare part D without a lapse in prescription
drug coverage.
(b) Holding Pharmacies Harmless for Certain Costs-
(1) IN GENERAL- The Secretary of Health and Human Services shall provide
for such payments to pharmacies as may be necessary to reimburse pharmacies
fully for--
(A) transaction fees associated with the point-of-sale facilitated identification
and enrollment processes referred to in subsection (a)(3); and
(B) costs associated with technology or software upgrades necessary
to make any identification and enrollment inquiries as part of the processes
under subsection (a)(3).
(2) TIME- Payments under paragraph (1) shall be made with respect to fees
and costs incurred during the period beginning on December 1, 2005, and
ending on June 1, 2006.
(3) PAYMENTS FROM ACCOUNT- Payments under paragraph (1) shall be made
from the Medicare Prescription Drug Account under section 1860D-16 of
the Social Security Act (42 U.S.C. 1395w-116) and shall be deemed to be
payments from such Account under subsection (b) of such section.
SEC. 9. STATE HEALTH INSURANCE PROGRAM ASSISTANCE REGARDING THE NEW MEDICARE
PRESCRIPTION DRUG BENEFIT.
During the period beginning on the date that is 7 days after the date of
enactment of this Act and ending on May 15, 2006 (or a later date if determined
appropriate by the Secretary of Health and Human Services), the Secretary
shall ensure that an employee of the Centers for Medicare & Medicaid
Services is stationed at each State health insurance counseling program
(receiving funding under section 4360 of the Omnibus Budget Reconciliation
Act of 1990) in order to--
(1) assist Medicare beneficiaries and counselors under such program in
better understanding the Medicare prescription drug benefit under part
D of title XVIII of the Social Security Act; and
(2) act as a liaison to the Secretary and the Administrator of the Centers
for Medicare & Medicaid Services regarding issues related to oversight
and enforcement of provisions under the Medicare prescription drug benefit.
SEC. 10. ADDITIONAL MEDICARE PART D INFORMATIONAL RESOURCES.
(a) 1-800-MEDICARE- The Secretary of Health and Human Services shall increase
the number of trained employees staffing the toll-free telephone number
1-800-MEDICARE in order to ensure that the average wait time for a caller
does not exceed 20 minutes.
(b) Pharmacy Hotline- The Secretary of Health and Human Services shall--
(1) establish a toll-free telephone number that is dedicated to providing
information regarding the Medicare prescription drug benefit under title
XVIII of the Social Security Act to pharmacists; and
(2) staff such telephone number in order to ensure that the average wait
time for a caller does not exceed 20 minutes.
(c) State Health Insurance Program Hotline- The Secretary of Health and
Human Services shall--
(1) establish a toll-free telephone number that is dedicated to providing
information regarding the Medicare prescription drug benefit under title
XVIII of the Social Security Act to counselors working in State health
insurance counseling programs (receiving funding under section 4360 of
the Omnibus Budget Reconciliation Act of 1990); and
(2) staff such telephone number in order to ensure that the average wait
time for a caller does not exceed 20 minutes.
SEC. 11. GAO STUDY AND REPORT ON THE IMPOSITION OF CO-PAYMENTS UNDER PART
D FOR FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS RESIDING IN A LONG-TERM CARE
FACILITY.
(a) Study- The Comptroller General of the United States shall conduct a
study on how mental health patients who are full-benefit dual eligible individuals
(as defined in section 1935(c)(6) of the Social Security Act (42 U.S.C.
1396u-5(c)(6))) and who reside in long-term care facilities, including licensed
assisted living facilities, will be affected by the imposition of co-payments
for covered part D drugs under part D of title XVIII of such Act. Such study
shall include a review of issues that relate to the potential harm of displacement
due to an inability to access needed medications because of such co-payments.
(b) Report- Not later than 6 months after the date of enactment of this
Act, the Comptroller General of the United States shall submit a report
to Congress on the study conducted under subsection (a), including recommendations
for such legislation as the Comptroller General determines is appropriate.
SEC. 12. STATE COVERAGE OF NON-FORMULARY PRESCRIPTION DRUGS FOR FULL-BENEFIT
DUAL ELIGIBLE INDIVIDUALS DURING 2006.
(a) State Coverage of Non-Formulary Prescription Drugs for Full-Benefit
Dual Eligible Individuals During 2006- For prescriptions filled during 2006,
notwithstanding section 1935(d) of the Social Security Act (42 U.S.C. 1396v(d)),
a State (as defined for purposes of title XIX of such Act) may provide (and
receive Federal financial participation for) medical assistance under such
title with respect to prescription drugs provided to a full-benefit dual
eligible individual (as defined in section 1935(c)(6) of such Act (42 U.S.C.
1396v(c)(6)) that are not on the formulary of the prescription drug plan
under part D or the MA-PD plan under part C of title XVIII of such Act in
which such individual is enrolled.
(1) MEDICARE AS PRIMARY PAYER- Nothing in subsection (a) shall be construed
as changing or affecting the primary payer status of a prescription drug
plan under part D or an MA-PD plan under part C of title XVIII of the
Social Security Act with respect to prescription drugs furnished to any
full-benefit dual eligible individual (as defined in section 1935(c)(6)
of such Act (42 U.S.C. 1396v(c)(6)) during 2006.
(2) THIRD PARTY LIABILITY- Nothing in subsection (a) shall be construed
as limiting the authority or responsibility of a State under section 1902(a)(25)
of the Social Security Act (42 U.S.C. 1396a(a)(25)) to seek reimbursement
from a prescription drug plan, an MA-PD plan, or any other third party,
of the costs incurred by the State in providing prescription drug coverage
during 2006.
SEC. 13. PROTECTION FOR FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS FROM PLAN
TERMINATION PRIOR TO RECEIVING FUNCTIONING ACCESS IN A NEW PART D PLAN.
(a) In General- Notwithstanding any other provision of law, the Secretary
of Health and Human Services shall not terminate coverage of a full-benefit
dual eligible individual (as defined in section 1935(c)(6) of the Social
Security Act (42 U.S.C. 1396v(c)(6)) unless such individual has functioning
access to a prescription drug plan under part D or an MA-PD plan under part
C of title XVIII of such Act. Such access shall include entry of the individual
into the computer system of such plan and an acknowledgment by the plan
that the individual is eligible for a full premium subsidy under section
1860D-14 of such Act (42 U.S.C. 1395w-114).
(b) Effective Date- This section shall take effect on the date of the enactment
of this Act.
END
