[Congressional Record Volume 153, Number 59 (Thursday, April 12, 2007)]
[Senate]
[Pages S4448-S4451]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SMITH (for himself, Mr. Bingaman, Ms. Snowe, Mrs. Lincoln, 
        and Mr. Kerry):
  S. 1108. A bill to amend title XVIII of the Social Security Act to 
provide a special enrollment period for individuals who qualify for an 
income-related subsidy under the Medicare prescription drug program and 
to provide funding for the conduct of outreach and education with 
respect to the premium and cost-sharing subsidies under such program, 
and for other purposes; to the Committee on Finance.
  Mr. SMITH. Mr. President, today I am proud to join my colleague, 
Senator Bingaman, to introduce a package of four bills aimed at helping 
seniors get the assistance they need with their Medicare prescription 
drug costs. Thirty-nine million individuals now have access to 
affordable prescription drug therapies through Medicare Part D, many 
for the very first time. But low-income beneficiaries still are 
experiencing difficulties taking full advantage of the program's 
benefits. I believe the bipartisan package of legislation we have 
developed will go a long way to removing programmatic barriers that are 
limiting seniors from getting the help we intended them to have when we 
created Medicare Part D Prescription Drug Program.
  The low-income subsidy (LIS) is one of the best features of 
Medicare's new prescription drug benefit. Over the past few years, I 
have conducted extensive oversight of the program's implementation, 
especially through my work as Chairman and now Ranking Member of the 
Special Committee on Aging. Through hearings and staff-level 
investigations, I have identified a number of concerns with both the 
administration and the overall effectiveness of Medicare Part D's LIS. 
The Centers for Medicare and Medicaid Services (CMS) and the Social 
Security Administration (SSA) have made a great deal of progress to 
ensure that the benefit is working well for all beneficiaries. But 
their efforts can only go so far. Ultimately, it is Congress' 
responsibility to ensure that all low-income seniors who have 
difficulty paying their prescription drugs costs get the help they 
need.
  Two of the four bills that Senator Bingaman and I are filing today 
are based upon initiatives that I introduced during the 109th Congress. 
The first is a measure that would create parity in the cost-sharing 
charged beneficiaries living in nursing homes and assisted living 
facilities. Under current law, dual-eligible Medicare beneficiaries, 
those who qualify for both Medicaid and Medicare coverage, receive a 
subsidy from the government to pay the benefit's required $250 
deductible. These individuals also qualify for reduced copayments for 
both generic and brand named drugs in the amount of one and three 
dollars respectively. If a dual-eligible beneficiary receives long-term 
care services in an institutional setting, such as a nursing home, he 
or she is exempt from paying the required copayment. Congress decided 
to provide this assistance because dual-eligible beneficiaries residing 
in nursing homes live off of very limited incomes. For instance, in 
Oregon the personal needs allowance beneficiaries receive each month 
for incidentals, including medications, is only $30. As many 
institutionalized beneficiaries are on multiple medications, they would 
not be able to meet their share of drug costs.
  This is the very reason Congress provided institutionalized dual-
eligible beneficiaries with an exemption from all copayments under 
Medicare Part D. However, many dual-eligible beneficiaries choose to 
receive long-term care services in home or community-based settings, 
such as assisted living or resident care program facilities. Almost all 
states have chosen to establish Home and Community Based Services 
(HCS) Medicaid demonstration projects that have expanded access to 
community based alternatives to an even greater number of low-income 
elderly Americans. The State of Oregon operates one of the Nation's 
most successful HCS waivers, serving an average of 23,500 dual-eligible 
beneficiaries

[[Page S4449]]

each year. My state has a thriving community based care industry that 
has provided many dual-eligible Oregonians the freedom to choose the 
care setting that best meets their own physical and social needs.

  While dual-eligible beneficiaries are exempted from prescription drug 
copayments under Medicare Part D, those choosing community-based 
alternatives are required to pay them. This is despite the fact that 
beneficiaries choosing community based care options typically live off 
of the same limited incomes as those residing in nursing homes. While 
some states provide HCS beneficiaries' a larger personal stipend each 
month, many may have greater financial demands. At the end of the day, 
they are in no better position to pay the costs of prescription drugs 
than those beneficiaries living in nursing homes.
  I also should note that their less restrictive living environments 
may require them to take additional medications to support their daily 
routines. It is not uncommon for dual-eligible beneficiaries in 
community-based care settings to be on 8 to 10 medications at a given 
time. At that level, even minimal copayments create a significant 
financial burden to these individuals.
  The current dual-eligible copayment exemption policy not only is 
creating inequity in Medicare Part D, it is potentially restricting 
access to life-saving medications. This is not what Congress intended. 
I believe we need to do everything possible to support choice in long-
term care, and by applying the current institutional copayment 
exemption more uniformly, Congress will ensure the Medicare drug 
benefit does not adversely affect beneficiaries' choices.
  The second measure I am introducing today is based upon a bill I 
filed last year. That legislation sought to provide beneficiaries 
applying for LIS extra time to enroll into Part D if they had not 
received notification of their eligibility status by the time an open 
enrollment period ended. The bill also would have also waived the late 
enrollment penalty assessed to all beneficiaries who enroll outside of 
an enrollment period. Fortunately, CMS enacted an administrative 
solution to this problem, and allowed all LIS eligible beneficiaries to 
enroll into Medicare Part D at any point during 2006, and later 
extended that policy into 2007.
  Now that Medicare Part D is fully implemented and policymakers have 
had an opportunity to assess how well the program is working, I believe 
that the administrative actions taken by CMS last year to create a 
special enrollment period for LIS beneficiaries should be made 
permanent. The Medicare Part D Outreach Enrollment Enhancement Act of 
2007 does just that. It would create a 90-day special enrollment period 
for any beneficiary who applies and is approved for the LIS at any 
point during the year. It also would allow them to undergo a 
facilitated enrollment process overseen by CMS, so they get the help 
they need to select a prescription drug plan that best meets their 
needs.
  Additionally, the bill exempts low-income beneficiaries from Medicare 
Part D's late enrollment penalty. While an enrollment penalty can be an 
effective means of helping drug plans better assess their risk in a 
given period, it is not fair to ask our low-income seniors--many who 
struggle with a number of challenging healthcare problems--to pay a 
higher cost simply because they need additional time to enroll in the 
program. Selecting a prescription drug plan can be a challenging feat, 
and it can be even more complicated if you are trying to make your 
limited income stretch as far as it can. We need to guarantee that 
beneficiaries have sufficient time to choose the most affordable plan 
that also meets all their prescription drug needs.
  The measure also would create a new authorization to support the 
valuable work of State Health Insurance Programs (SHIPs). SHIPs provide 
a range of services to our nation's seniors, such as help choosing a 
quality prescription drug plan, applying for financial assistance with 
their drug costs and resolving general problems experienced with the 
drug benefit. Unfortunately, funding for SHIPs has not kept pace with 
the number of beneficiaries that age into Medicare each year. To remedy 
that, my bill creates a new authorization that increases funding in 
conjunction with growth in enrollment. The bill also provides funding 
for the new National Center of Senior Benefits and Outreach, created in 
the Older Americans Act last year. The Center is charged with 
developing ways to assist organizations like SHIPs to better target 
their efforts so that all seniors are fully aware of the benefits that 
might be available to them.
  The next bill in the package we are filing today addresses a problem 
low-income seniors encounter if and when they enter into the drug 
benefit's coverage gap. While beneficiaries still have access to 
medications through their drug plans during the coverage gap, they may 
have to pay more for them. For those living on fixed incomes, this 
could present a serious problem as the out-of-pocket cost of many 
common prescription drugs can be quite steep. Fortunately, many safety-
net programs, like community health centers and the AIDS Drug 
Assistance Program (ADAP), provide assistance to eligible low-income 
beneficiaries during the coverage gap. Effectively, they fill the role 
of the drug plan in providing beneficiaries access to their medications 
at a heavily subsidized cost.
  This scenario presently works well for a number of low-income 
beneficiaries, but it is simply unsustainable in the long-run for two 
key reasons. First, from the perspective of beneficiaries, it is not 
right to ask them to continue paying premiums to their drug plans 
during the coverage gap when they are unable to generate sufficient 
out-of-pocket expenses to qualify for the program's catastrophic 
benefit. Many low-income beneficiaries who get ``caught'' in the 
coverage gap struggle with significant health problems, such as cancer 
or HIV/AIDS. These conditions often require costly treatment that a 
low-income beneficiary would likely have to forge without the 
assistance of a safety-net provider.
  Second, the current scenario is placing a disadvantageous strain on 
the safety-net programs that assist low-income beneficiaries with their 
drug costs during the coverage gap. One of the primary reasons Medicare 
Part D was created was to provide relief to states and other safety-net 
providers who bore a lion's share of the responsibility of providing 
access to drug therapies for the Nation's seniors. While Part D has 
gone a long way to fulfill that intention, there is still much that can 
be done to help our safety-net providers. It is not right that service 
providers like community health centers and ADAP have been forced to 
provide discounted medications to low-income beneficiaries during the 
coverage gap, especially when the beneficiary has no way of accruing 
enough out-of-pocket costs for their Part D coverage to resume.

  The bill Senator Bingaman and I are filing today resolves both these 
problems. It would allow safety net providers' drug costs to count 
toward a beneficiary's out-of-pocket costs so they are able to reach 
Medicare Part D's catastrophic benefit at some point. This will ensure 
that low-income beneficiaries have access to the full range of coverage 
under the program and will provide much needed fiscal relief to already 
strained safety net providers. Congress intended for all 
beneficiaries--especially those with limited incomes--to have full 
access to the benefits through Medicare Part D. This bill will 
guarantee that happens.
  Despite the progress we have made in providing low-income seniors 
access to affordable prescription drugs, I find it troubling that 
recent estimates still show that there may be at least three million 
seniors eligible for the low-income subsidy who have yet to apply for 
it. While CMS, SSA and their community partners continue their vital 
outreach to capture these seniors, I believe the existing LIS 
application is too complex and is preventing seniors from getting the 
help they need. We need a simpler process that better reflects the true 
levels of assets and resources held by low-income seniors.
  The last bill in the package I am filing today does just that. The 
Part D Equity for Low-Income Seniors Act is the product of months of 
bipartisan collaboration with representatives of groups like AARP, the 
National Council on Aging and Families USA. It aims to help SSA better 
target potentially

[[Page S4450]]

eligible beneficiaries and make the application process much simpler to 
complete.
  First, drawing from a recommendation from the Health and Human 
Services Office of Inspector General, SSA is given the authority to use 
select tax information to help determine which Medicare beneficiaries 
might be eligible for extra help with their drug costs. With this data, 
they would be able to more efficiently contact beneficiaries and 
prescreen them for potential eligibility. I realize that some of my 
colleagues might have privacy concerns with such an arrangement, but I 
want to make clear that my bill is not giving SSA access to any data 
that they already do not have. In order to implement the Part B subsidy 
adjustment, the Medicare Modernization Act requires that the Internal 
Revenue Service (IRS) send tax data to the SSA--they are legally 
prohibited from using it for any other purpose than Part B. We simply 
are establishing the same process for data exchange that already exists 
between the IRS and SSA so that SSA can more efficiently conduct its 
outreach work for Medicare Part D's low-income subsidy.
  The bill also seeks to make the LIS application easier for seniors to 
complete. I have heard a number of complaints that the current form 
uses confusing verbiage and is overly burdensome in its reporting 
requirements. As a remedy, we eliminate the reporting of retirement 
account balances, the face value of life savings policies and in-kind 
contributions. This not only will make the form easier to complete, it 
will prevent seniors from the pressure of having to determine whether 
they should sacrifice their retirement income or long-term risk 
protection in order to pay their healthcare bills. I believe we need to 
be encouraging seniors to save for their later years in life, not 
requiring them to liquidate their futures to fill their prescriptions.

  In order to make the LIS benefit more accurately reflect the assets 
and resources low-income seniors possess, our bill also proposes 
raising the current asset test limit to $27,500 for an individual and 
$55,000 for a couple. According to data from the SSA, this increase 
should help capture almost 40 percent of the individuals who are 
ineligible for the LIS benefit due to excess resources, and 50 percent 
of the couples. I realize this can be a sensitive issue for some of my 
colleagues--especially on my side of the aisle. We want to ensure that 
only those beneficiaries who truly are in need of help with their drug 
are eligible for government assistance. But, I also believe that we can 
be too heavyhanded and prevent those with legitimate need from getting 
it. The new asset/resource limits Senator Bingaman and I have proposed 
represent a good, bipartisan solution to the problem. I know many would 
like to see the full asset test repealed, but this year that may be a 
difficult feat to accomplish politically and financially. This is a 
reasonable step forward, one the advocates support. I hope my 
colleagues will as well.
  I believe that the Medicare Prescription Drug Program is working for 
America's seniors and that we should not undertake a significant 
overhaul of the new benefit in this Congress. However, there is room 
for improvement, especially in regard to making the program work better 
for America's low-income seniors. I firmly believe that if Congress 
does not address some of these lingering problems this year, Medicare's 
long-term public image could be severely tarnished in the eyes of the 
very people it was created to serve.
  One can learn a great deal about the character of a society by 
looking at how well it cares for its poor and vulnerable citizens. I 
believe my four bills that improve upon how Medicare Part D serves low-
income beneficiaries will help cement the United States as a country 
that looks out for its citizens in need. I hope my colleagues will join 
me in supporting the full package and assist me in moving it through 
the process.
  I ask unanimous consent that the text of these bills be printed in 
the Record.
  There being no objection, the bills were ordered to be printed in the 
Record, as follows:

                                S. 1107

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Home and Community Services 
     Copayment Equity Act of 2007''.

     SEC. 2. ELIMINATION OF PART D COST-SHARING FOR CERTAIN NON-
                   INSTITUTIONALIZED FULL-BENEFIT DUAL ELIGIBLE 
                   INDIVIDUALS.

       (a) In General.--Section 1860D-14(a)(1)(D)(i) of the Social 
     Security Act (42 U.S.C. 1395w-114(a)(1)(D)(i)) is amended--
       (1) in the heading, by striking ``Institutionalized 
     individuals.--In'' and inserting ``Elimination of cost-
     sharing for certain full-benefit dual eligible individuals.--

       ``(I) Institutionalized individuals.--In''; and

       (2) by adding at the end the following new subclauses:

       ``(II) Certain other individuals.--In the case of an 
     individual who is a full-benefit dual eligible individual and 
     who is a resident of a facility described in subclause (III) 
     or who is receiving home and community-based services in a 
     home setting provided under a home and community-based waiver 
     approved for the State under section 1915 or 1115, the 
     elimination of any beneficiary coinsurance described in 
     section 1860D-2(b)(2) (for all amounts through the total 
     amount of expenditures at which benefits are available under 
     section 1860D-2(b)(4)).
       ``(III) Facility described.--For purposes of subclause 
     (II), a facility described in this subclause is--

       ``(aa) an assisted living facility or a resident care 
     program facility (as such terms are defined by the 
     Secretary);
       ``(bb) a board and care facility (as defined in section 
     1903(q)(4)(B)); or
       ``(cc) any other facility that is licensed or certified by 
     the State and is determined appropriate by the Secretary, 
     such as a community mental health center that meets the 
     requirements of section 1913(c) of the Public Health Service 
     Act, a psychiatric health facility, a mental health 
     rehabilitation center, and a mental retardation developmental 
     disability facility.''.
       (b) Effective Date.--The amendments made by subsection (a) 
     shall apply to drugs dispensed on or after the date of 
     enactment of this Act.
                                  ____


                                S. 1108

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Medicare Part D Outreach and 
     Enrollment Enhancement Act of 2007''.

     SEC. 2. SPECIAL ENROLLMENT PERIOD FOR INDIVIDUALS ELIGIBLE 
                   FOR AN INCOME-RELATED SUBSIDY.

       (a) Special Enrollment Period.--Section 1860D-1(b)(3) of 
     the Social Security Act (42 U.S.C. 1395w-101(b)(3)) is 
     amended by adding at the end the following new subparagraph:
       ``(F) Eligibility for low-income subsidy.--
       ``(i) In general.--Subject to clause (iii), in the case of 
     an applicable individual (as defined in clause (ii)).
       ``(ii) Applicable individual defined.--For purposes of this 
     subparagraph, the term `applicable individual' means a part D 
     eligible individual who is determined to be a subsidy-
     eligible individual (as defined in section 1860D-14(a)(3)), 
     including such an individual who was enrolled in a 
     prescription drug plan or an MA-PD plan on the date of such 
     determination.
       ``(iii) Timing of special enrollment period.--The special 
     enrollment period established under this subparagraph shall 
     be for a 90-day period beginning on the date the applicable 
     individual receives notification of such determination.''.
       (b) Enrollment Process for Subsidy-Eligible Individuals 
     Eligible for Special Enrollment Period.--Section 1860D-
     1(b)(1) is amended by adding at the end the following new 
     subparagraph:
       ``(D) Special rule for subsidy-eligible individuals 
     eligible for special enrollment period.--The process 
     established under subparagraph (A) shall include, in the case 
     of an applicable individual (as defined in clause (ii) of 
     paragraph (3)(F)) the following:
       ``(i) Facilitated enrollment.--During the 90-day period 
     described in clause (iii) of such paragraph, a process for 
     the facilitated enrollment of the individual in the 
     prescription drug plan or MA-PD plan that is most appropriate 
     for such individual (as determined by the Secretary). At the 
     end of such 90-day period, the individual shall be enrolled 
     in such plan unless the individual declines enrollment in the 
     plan or in the program under this part, or chooses to enroll 
     in another plan selected by the individual prior to the end 
     of such 90-day period.
       ``(ii) One-time change of enrollment.--The opportunity to 
     change enrollment with a prescription drug plan or an MA-PD 
     plan not less than once during a plan year. Nothing in the 
     previous sentence shall limit the ability of a part D 
     eligible individual who is a full-benefit dual eligible 
     individual (as defined in section 1935(c)(6)) to change 
     enrollment under subparagraph (C)''.
       (c) Waiver of Late Enrollment Penalty.--Section 1860D-13(b) 
     of the Social Security Act (42 U.S.C. 1395w-113(b)) is 
     amended by adding at the end the following new paragraph:
       ``(8) Waiver of penalty for subsidy-eligible individuals.--
     In no case shall a part D eligible individual who is 
     determined to be a subsidy-eligible individual (as defined in 
     section 1860D-14(a)(3)) be subject to an increase

[[Page S4451]]

     in the monthly beneficiary premium established under 
     subsection (a).''.
       (d) Effective Date.--The amendments made by this section 
     shall take effect on January 1, 2008.

     SEC. 3. OUTREACH AND EDUCATION FOR PREMIUM AND COST-SHARING 
                   SUBSIDIES UNDER PART D.

       (a) Additional Funding for Outreach and Assistance.--
       (1) State health insurance assistance programs.--There are 
     authorized to be appropriated for each of fiscal years 2008, 
     2009, 2010, and 2011, an amount equal to $1 multiplied by the 
     total number of individuals entitled to benefits, or 
     enrolled, under part A of title XVIII of the Social Security 
     Act, or enrolled under part B of such title during the fiscal 
     year (as determined by the Secretary of Health and Human 
     Services, based on the most recent available data before the 
     beginning of the fiscal year) to be used to provide 
     additional grants to State Health Insurance Assistance 
     Programs (SHIPs) to conduct outreach and education related to 
     the Medicare program under such title.
       (2) National center on senior benefits outreach and 
     enrollment.--
       (A) In general.--There are appropriated $4,000,000 to the 
     National Center on Senior Benefits Outreach and Enrollment 
     established under section 202(a)(20)(B) of the Older 
     Americans Act of 1965 (42 U.S.C. 3012(a)(20)(B)) to be used 
     to provide outreach and enrollment assistance with respect to 
     premium and cost-sharing subsidies under the Medicare 
     prescription drug program under part D of title XVIII of the 
     Social Security Act (42 U.S.C. 1395w-101 et seq.).
       (B) Coordination.--The National Center on Senior Benefits 
     Outreach and Enrollment shall coordinate outreach and 
     enrollment assistance conducted under subparagraph (A) with 
     activities conducted by State Health Insurance Assistance 
     Programs (SHIPs) and other appropriate entities that conduct 
     outreach and education related to such premium and cost-
     sharing subsidies.
       (b) Encouraging States to Direct Subsidy-Eligible 
     Individuals to Organizations Providing Assistance.--
       (1) In general.--The Secretary of Health and Human Services 
     shall encourage States to direct applicable individuals to 
     appropriate organizations and entities that provide 
     assistance with respect to--
       (A) applying for premium and cost-sharing subsidies under 
     section 1860D-14 of the Social Security Act (42 U.S.C. 1395w-
     114); and
       (B) enrolling in a prescription drug plan or an MA-PD plan 
     under part D of title XVIII of the Social Security Act (42 
     U.S.C. 1395w-101 et seq.).
       (2) Applicable individuals defined.--In this subsection, 
     the term ``applicable individual'' means an individual the 
     State believes to be, or determines to be, eligible for 
     premium and cost-sharing subsidies under section 1860D-14 of 
     the Social Security Act (42 U.S.C. 1395w-114).

     SEC. 4. SCREENING BY COMMISSIONER OF SOCIAL SECURITY FOR 
                   ELIGIBILITY UNDER MEDICARE SAVINGS PROGRAMS.

       (a) In General.--Section 1860D-14(a)(3)(B)(i) of the Social 
     Security Act (42 U.S.C. 1395w-114(a)(3)(B)(i)) is amended by 
     inserting after the first sentence the following: ``As part 
     of making an eligibility determination under the preceding 
     sentence for an individual, the Commissioner shall screen for 
     the individual's eligibility for medical assistance for any 
     medicare cost-sharing described in section 1905(p)(3) and, if 
     the screening indicates the individual is likely eligible for 
     any such medicare cost-sharing, transmit the pertinent 
     information to the appropriate State Medicaid agency for the 
     determination of eligibility and enrollment of the individual 
     for such medicare cost-sharing under the State plan (or under 
     a waiver of such plan).''.
       (b) Effective Date.--The amendment made by this section 
     shall take effect on the date of enactment of this Act.

     SEC. 5. ADMINISTRATION ON AGING STUDY AND REPORT ON SCREENING 
                   PROCESSES USED BY GOVERNMENT NEEDS-BASED 
                   PROGRAMS.

       (a) Study.--
       (1) In general.--The Assistant Secretary of the 
     Administration on Aging (in this section referred to as the 
     ``Assistant Secretary'') shall conduct a comprehensive study 
     of screening processes used by government needs-based 
     programs.
       (2) Matters studied.--In conducting the study under 
     paragraph (1), the Assistant Secretary shall--
       (A) assess any duplications of effort under existing 
     screening processes used by government needs-based programs;
       (B) determine the feasibility of creating a uniform 
     screening process for such needs-based programs;
       (C) determine how the Federal government, State 
     governments, and community-based organizations can better 
     coordinate existing screening processes in order to 
     facilitate the enrollment of seniors into need-based 
     programs;
       (D) include a cost-benefit analysis with respect to 
     creating a uniform screening process or better streamlining 
     existing screening processes; and
       (E) determine the feasibility of using the Internet to 
     administer screening processes, as well as the costs and 
     benefits of migrating to on online system.
       (b) Report.--Not later than 1 year after the date of 
     enactment of this Act, the Assistant Secretary shall submit a 
     report to Congress containing the results of the study 
     conducted under subsection (a), together with 
     recommendations--
       (1) to streamline and improve the effectiveness of 
     screening processes used by government needs-based programs; 
     and
       (2) for such legislation or administrative action as the 
     Assistant Secretary determines appropriate.
       (c) Authorization.--There are authorized to be appropriated 
     such sums as are necessary to carry out this section.

                          ____________________