109 HR 4660 IH: Requiring Emergency Pharmaceutical Access for Individual Relief (REPAIR) Act of 2006 U.S. House of Representatives 2006-01-31 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

I 109th CONGRESS 2d Session H. R. 4660 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.

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

2.

Transition requirements

(a)

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).

3.

Federal fallback for full-benefit dual eligible individuals for 2006

(a)

In general

(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).

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.

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.

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).

7.

Reimbursement of States for 2006 transition costs

(a)

Reimbursement

(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.

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.

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.

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.

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.

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. (b)

Application

(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.

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.